Salazar v. George H. Maintenance
Filed 1/27/14 Salazar v. George H. Maintenance CA2/4
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ANA
SALAZAR,
Plaintiff and Appellant,
v.
GEORGE
H. MAINTENANCE et al.,
Defendants;
DAVID
LEE,
Movant and Respondent.
B248587
(Los Angeles County
Super. Ct. No. BC411628)
APPEAL
from an order of the Superior Court of
Los Angeles County, Richard E. Rico, Judge. Affirmed.
Mancini
and Associates and Christopher Barnes for Plaintiff and Appellant.
Lorraine A. Middleton for
Movant and Respondent.
In this appeal from an order
imposing sanctions (Code Civ. Proc., § 2025.420, subd. (h)),
because the court allowed the deposition of respondent David Lee to be taken, the
court denied Lee’s motion for a protective order, which eliminated any basis
for sanctions. We conclude, however,
that because the court granted Lee’s motion for a
was authorized to impose sanctions.
In
April 2009, Salazar filed a complaint for
discrimination and wrongful termination against her former employer, defendant
George H. Maintenance. During discovery,
Salazar learned that George H. Maintenance was connected to numerous entities,
including Nu-Century Maintenance, Inc. (Nu-Century) and its purported owner,
Bruce Wang or Hwang (Hwang). After
determining that Nu-Century had listed an address on 14th Street as its business
address, Salazar sought to depose Lee, who owned the 14th Street property.
After
Lee was served with a nonparty deposition subpoena (§ 2020.010 et seq.), his
attorney, Derek A. Simpson, attempted to learn why Lee’s deposition had been
noticed. After Simpson ascertained that
Salazar was interested in discovering Lee’s relationship with Nu-Century or Hwang,
Simpson informed Salazar’s attorney that Lee had no knowledge or information
concerning Nu-Century or Hwang.
When
Salazar refused to cancel Lee’s deposition,
Lee moved for a protective order and sanctions under sections 2025.420,
2019.030, and 2017.010. In his
supporting declaration, Lee explained that when he began renting the front
house at the 14th Street property in June
2007, he did not know the other tenants or their occupations and never saw any sign
of their involvement with a business named Nu-Century. When Lee purchased the 14th Street property in
November 2008, there were no tenants named Hwang. Although Lee saw some incoming mail addressed
to a Brandon Hwang, he did not recall a tenant by that name and saw no
indication that anyone by that name was running a custodial or maintenance
company from that location. As sole
proprietor of an apparel and printing business in Los Angeles, Lee could not afford
“to waste a day, or even a half a day, driving to the San Fernando Valley for a
deposition in a case in which [he is] a complete stranger.â€
In opposition
to the motion, Salazar’s attorney, Meghan E. George, submitted a declaration in
which she stated why she believed Lee, as owner of the 14th Street property, had
discoverable information concerning Nu-Century.
George relied primarily on a November 2008 invoice that listed the 14th Street property as Nu-Century’s
business address.
On April 25, 2013, the trial court heard and granted
Lee’s motion for a protective order. In
its April 25, 2013 minute order,
the court stated in relevant part: “From
the foregoing, Lee’s position is justified.
Lee has clearly indicated that he has no connection with Nu-Century
Maintenance or Brandon Hwang. The only
information that would be gained at the deposition is for Lee to reassert his
lack of knowledge. It is unclear what
information is even sought by plaintiff, as any information regarding
Nu-Century Maintenance could be gained by propounding discovery to Nu-Century
Maintenance itself or deposing Nu-Century Maintenance’s [person most
knowledgeable]. . . . Merely being someone’s landlord does not
subject one to burdensome and harassing litigation involving one’s purported
tenant. Accordingly, the motion for
protective order is GRANTED.†The minute
order further stated: “The court grants
sanctions to Lee in the amount of $5,695 to be paid within 30 days.â€
On April 25, 2013, Lee served a notice of
ruling that included language not found in the April 25, 2013 minute order. The notice of ruling stated in part: “At the conclusion of the hearing, the Court
granted Lee’s Motion and ordered that plaintiff and her counsel, Mancini and
Associates, Christopher Barnes, Tara Licata, and Meghan George, pay Lee
sanctions in the amount of $5,695 within 30 days of April 25, 2013. [¶]
The Court inquired [of] Lee’s counsel whether he would consent to
plaintiff taking a short deposition of Lee, conditioned on plaintiff paying Lee
the $5,695 sanctions indicated in the tentative ruling. Lee’s counsel agreed, under the condition
that the deposition be conducted at Lee’s workplace [address omitted]. The Court then stated that it would allow
plaintiff to take a short deposition of Lee at his workplace.â€
On May 1, 2013, Salazar filed a written
objection to Lee’s notice of ruling on the ground that it “failed to properly
recount the Court’s ruling.†Salazar
asserted that by ordering Lee to appear for a deposition at Lee’s office at a
mutually convenient time, the court had denied Lee’s motion for a protective
order, which eliminated any basis for sanctions.
On May 8, 2013, the trial court entered a
formal order that incorporated the language of the April 25, 2013 minute order with the additional
language of the April 26 notice of ruling.
The May 8, 2013 order imposed
sanctions of $5,695 against Salazar and her attorneys. This timely appeal followed.
Salazar
contends, as she did below, that because the trial court allowed Lee’s
deposition to be taken at Lee’s office at a mutually convenient time, the court
denied Lee’s motion for a protective order, thus eliminating any basis for
sanctions. We disagree, however, with
Salazar’s assertion that the motion for protective order was denied. For the reasons stated below, we conclude that
Lee’s motion for a protective order was granted and that sanctions were properly
imposed under section 2025.420, subdivision (h).
Section
2025.420 allows the court, for good cause, to issue a protective order to
protect a deponent from undue burden and expense. The court may impose a wide variety of
restrictions on the moving party’s deposition, such as directing that the
deposition be taken: (1) “at a different
time†(subd. (b)(2)); (2) “at a place other than that specified in the
deposition notice†(subd. (b)(4)); and (3) “only on certain specified terms and
conditions†(subd. (b)(5)). In this
case, the trial court did all of the above.
The court moved the deposition to Lee’s place of business in Los Angeles, required that
the deposition be kept “short,†and conditioned the deposition on the payment
of the $5,695 in sanctions as indicated in the tentative ruling. By imposing these restrictions, the trial
court granted Lee’s motion for a protective order.
According
to section 2025.420, subdivision (h), “[t]he court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion for a
protective order, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.â€
name="_ftnref3" title="">[3] Under this provision, “the court will impose
the monetary sanction unless the losing
party convinces that court that it acted with ‘substantial justification.’†(California
Shellfish, Inc. v. United Shellfish
Co. (1997) 56 Cal.App.4th 16, 25 (California
Shellfish).)
Although
findings as to the circumstances justifying the award of sanctions are not
required (California Shellfish,
court made such findings in this case.
The court found that: (1) “Lee’s
position [was] justifiedâ€; (2) “Lee [had] clearly indicated that he has no
connection with Nu-Century Maintenance or Brandon Hwangâ€; (3) it “is unclear
what information is even sought by plaintiff, as any information regarding
Nu-Century Maintenance could be gained by propounding discovery†on a party;
and (4) “[m]erely being someone’s landlord does not subject one to burdensome
and harassing litigation involving one’s purported tenant.†Based on the court’s findings that Salazar
acted without substantial justification, we conclude that sanctions were
properly imposed under section 2025.420, subdivision (h).
The order imposing sanctions is affirmed. Respondent Lee is entitled to recover his
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON,
J.
We concur:
EPSTEIN,
P. J.
MANELLA,
J.
name="_ftn1" title="">[1] All further statutory references are to the Code of Civil
Procedure.
name="_ftn2" title="">[2] Given that no further issues remain to be litigated between
Salazar and Lee, a nonparty, the appeal may be viewed as an appeal from a final
judgment on a collateral matter (Diepenbrock
v. Brown (2012) 208 Cal.App.4th 743, 746-747), or as an appeal from an
interlocutory judgment for sanctions in excess of $5,000 (§ 904.1, subd.
(a)(11)). In either case, the appeal is
proper.
