SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
TBA, Courtroom Clerk
TBA, Court Reporter
191 North First Street, San Jose, CA 95113
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: May 22, 2018 TIME: 9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED OTHERWISE BELOW.
(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))
EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.
TROUBLESHOOTING TENTATIVE RULINGS
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LINE 1 / 16CV297762 / George Kuo vs Smataics, LLC et al / Order of examination of “Chief Financial Officer” of Smataics, LLC. A proof of service was filed showing service on Angela Lipanovich. The record does not reflect who this individual is. /
LINE 2 / 17CV306553 / BMO Harris Bank, N.A. vs Freidon Narssu / Return on bench warrant for Judgment Debtor Freidon Narssu, continued from March 22, 2018. Freidon Narssu was ordered to return. /
LINE 3 / 16CV300764 / Eduardo Carranza et al vs Wells Fargo Bank, N.A. et al / Off calendar. Case was dismissed. /
LINE 4 / 20121CV234949 / L. Williams vs M. Ferris, et al / A complaint may be amended only once, as of right, before an answer is filed or before the first demurrer is heard. A party has no right to amend without court order thereafter, even in connection with a subsequent demurrer.
Demurrer is sustained with leave to amend. /
LINE 5 / 17CV318738 / Midland Funding LLC vs Camha Nguyen / The motion to quash filed by “Madison Laird” on behalf of defendant spouse Camha Nguyen was stricken by the Court on March 26, 2018 because filed by someone who was not a party, and who is not an attorney. A non-party spouse has no right to represent another party in an action unless he/she is a licensed attorney. The amended notice of motion does not correct this problem. Moreover, the Plaintiff was not served with the notice of motion. Accordingly, the motion is STRICKEN and DENIED. /
LINE 6 / 17CV320217 / Elinor Tappe vs Board of Trustees of the California State University et al / Ctrl/click on Line 6 for Tentative Ruling /
LINE 7 / 20151CV287361 / S. Hsieh, et al vs P. Lin, et al / Appearance required.
Plaintiff Sherry Hsieh’s motion to compel Patrick Lin to provide further production or inspection of documents that have already been produced is DENIED. The “amended motion to compel” filed March 16, 2018 is STRICKEN as untimely and improperly filed.
Patrick Lin has fully complied with his obligations to properly respond to discovery. The Court finds that Plaintiff’s repeated discovery requests for the same documents was an abuse of the discovery process, and that Plaintiff did not act with substantial justification in bringing the motion. The Court does not award sanctions for meet and confer efforts, but the Court orders Plaintiff Sherry Hsieh to pay monetary sanctions of $1,400, that the Court finds is a reasonable and necessary sum to oppose this motion, to counsel for Defendant Patrick Lin, within thirty days after written notice of entry of an order signed by the Court. /
LINE 8 / 17CV318137 / Mohammad Hammad vs Thomas Chiang et al / The motions to withdraw as counsel for Defendants Thomas Chiang and Linda Chiang were timely and properly served, are unopposed and are GRANTED. The Court will sign the proposed forms of order. The orders will be effective on filing of proof of service of entry of the orders signed by the Court. /
LINE 9 / 17CV318137 / Mohammad Hammad vs Thomas Chiang et al / See Line 8. /
LINE 10 / 17CV320325 / Kehvin Antawn vs HCL America Inc. et al / Defendants have notified the Court that Plaintiff has agreed to binding arbitration, and claim that a stipulation to arbitrate was filed with the Court on May 15, 2018. However, the stipulation is only found in the docket attached to a declaration, and has not been properly presented to the Court for signature. A efiling cover sheet must be attached to the front of the document, the document must be a stand-alone document, and a separate stipulation filing fee is required. Moreover, a stipulation to arbitrate requires the signature of the parties (not just counsel), which is not found on the stipulation. (See Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396: Toal v. Tardiff (2009) 178 Cal.App.4th 1208.) The motion is GRANTED subject to submission of a modified stipulation bearing the signature of all parties and properly submitted for signature. /
LINE 11 / 20141CV272395 / A. Mohsen vs Wells Fargo Shareowner Services, et al / Motion for attorney fees by Defendant Van De Heys following grant of Anti-SLAPP motion was timely and properly served, was continued at the request of Plaintiff, is unopposed, and is GRANTED. The Court will prepare the order consistent with the order issued on the motion by the Microsemi Defendants. /
LINE 12 / 20141CV275130 / B. Lebow, et al vs Intuitive Surgical, Inc., et al / Motions to seal are GRANTED. However, the sealed documents shall be returned to the moving party, after order granting the motion to seal is filed by the Court, the moving party shall e-file the sealed documents with a confidential designation. /
LINE 13 / 20141CV275130 / B. Lebow, et al vs Intuitive Surgical, Inc., et al / See Line 12. /
LINE 14 / 16CV289840 / Melissa & Doug, LLC vs Milagros Talledo / Claim of exemption. Defendant shall appear and bring proof of all sources of deposit into the referenced account. /
LINE 15 / 20121CV216711 / Security Credit Services, LLC vs N. Daryanani / Request for judicial notice is DENIED. Websites are not properly a subject of judicial notice.
Counsel to explain why this motion is brought instead of a wage garnishment or other means of enforcement. Also, the Court finds insufficient evidence of the judgment debtor’s relationship of the company in question. /
LINE 16 / 17CV320217 / Elinor Tappe vs Board of Trustees of the California State University et al / Motion to seal is DENIED. The Court finds the redacted information to be relatively insignificant in the context of this motion, it is not clear if the conditionally lodged documents were served on the Plaintiff (and if they were not, they would not be considered by the Court), and if they were served, any associated attorney client/work product privilege would be waived.
The lodged documents will be returned to counsel for Defendants, who shall efile them if they wish them to be a part of the public file. /
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Case Name: Tappé v. Board of Trustees of the California State University, et al.
Case No.: 17-CV-320217
This is a retaliation action initiated by plaintiff Elinor Tappé against defendants Board of Trustees of California State University (“CSU”), San Jose State University (“SJSU”), and Paul Lanning (“Lanning”).
According to the allegations in the first amended complaint (“FAC”), Plaintiff was employed by CSU and SJSU as Assistant Vice President of Development and Executive Director of Capital Campaigns. (FAC, ¶ 6.) Shortly after starting her job, Plaintiff discovered numerous recurrent instances of misappropriation of donor funding committed by various employees, including Lanning. (Id. at ¶ 7.) For example, certain donations were promoted as being used for scholarships, but were actually used for other purposes. (Ibid.)
Pursuant to SJSU procedures, Plaintiff attempted to report the misappropriation to the school. (FAC, ¶ 8.) As a result, the defendants retaliated against, harassed, humiliated, intimidated, and ultimately terminated her. (Id. at ¶¶ 9-10.) Plaintiff subsequently filed a complaint with the CSU Office of the Chancellor, who determined she had not been retaliated against. (Id. at ¶ 11.)
Plaintiff asserts two causes of action for retaliation under Government Code section 8457.12 and Labor Code section 1102.5.
The present matter involves a discovery dispute. Plaintiff served a deposition subpoena for the production of business records on attorney Liz Paris (“Paris”) (the “Subpoena”), who CSU and Lanning hired to conduct a pre-litigation investigation of Plaintiff’s claims. (Naran Decl., Exh. B; Paris Decl., ¶ 3.) The Subpoena seeks Plaintiff’s case file, the final and draft versions of the investigation report pertaining to Plaintiff, all e-mails between Paris and CSU or SJSU relating to Plaintiff, documents provided to Paris in connection with witness interviews, and all bills and payment information for services Paris provided to CSU and/or SJSU for the investigation into Plaintiff’s retaliation claims. (Naran Decl., Exh. B.) Paris served formal written objections to the Subpoena and CSU’s counsel requested it be withdrawn on the basis it seeks information protected by the attorney-client privilege and attorney work product doctrine. (Id. at ¶ 8; Paris Decl., ¶ 5.) CSU and Plaintiff met and conferred on the issues of attorney-client privilege and attorney work product doctrine but were unable to resolve the dispute, leading CSU to file the instant motion to quash the Subpoena. CSU also requests an attendant award of attorney’s fees and costs.
I. Request for Judicial Notice
In support of its motion, CSU requests judicial notice of the memoranda of its Chancellors Charles B. Reed and Timothy P. White regarding Executive Orders 1096 and 1058. Public CSU documents, such as these, are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (h), which authorizes courts to judicially notice “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See Ticer v. Young (N.D. Cal., Sept. 9, 2016, No. 16-CV-02198-KAW) 2016 WL 4719272, at *5.) In addition, the documents are relevant to issues raised herein. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”) [any matter to be judicially noticed must be relevant to a material issue].) Accordingly, the request is GRANTED.
II. Merits of the Motion
This motion is made pursuant to Code of Civil Procedure section 1987.1, which authorizes a party or witness to bring a motion to “quash a subpoena entirely, modify it, or direct compliance with it upon such terms or conditions as the court shall declare.” CSU insists the Subpoena should be quashed as it seeks information protected by the attorney-client privilege and attorney work product doctrine.[1]
The attorney-client privilege is “codified in Evidence Code section 954, [which] provides in pertinent part: ‘. . . the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer[.]” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 37, internal citations omitted.) “Evidence Code section 952 defines the term ‘confidential communication between client and lawyer’ as ‘information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.’” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600, citations omitted.)
The attorney work product doctrine is codified in Code of Civil Procedure section 2018.030 and precludes the discovery of a writing reflecting an attorney’s impressions, conclusions, opinions, theories, or legal research. It also prevents the discovery of other attorney work product not specifically identified in section 2018.030 unless the denial of discovery will unfairly prejudice the party seeking the discovery. (Code Civ. Proc., § 2018.030, subd. (b).) The doctrine evolved from the protection against invading the privacy of an attorney’s preparation. (Coito v. Superior Court (2012) 54 Cal.4th 480, 490.) A consequence of allowing the opposing party to obtain attorney work product would be that “[a]n attorney’s thoughts, heretofore inviolate, would not be his own.” (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 72, citations omitted.)
Relative to both grounds, the party claiming the privilege has the burden of proving the essential elements, including the existence of an attorney-client relationship. (DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 665; BP Alaska Exploration, Inc. v. Superior Court(1988) 199 Cal.App.3d 1240, 1252.) CSU relies on City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023 (“City of Petaluma”) in support of the proposition it has an attorney-client relationship with Paris.