Alex Alvord vs. Anthony Dever

Opposition

Cal. Super. - 4th Dist.July 28, 2015

AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leew ELECTRONICALLY FILED NEAL S. SALISIAN, SBN 240277 Superior Court of California, neal.salisian @salisianlee.com County of Orange H. HAN PAI, SBN 258928 09/29/2017 at 01:53:00 Pi han.pai @salisianlee.com Clerk of the Superior Court SALISIAN | LEE LLP By Angelina Mguyen-Do, Deputy Clerk 550 South Hope Street, Suite 750 Los Angeles, California 90071-2627 Telephone: (213) 622-9100 Facsimile: (800) 622-9145 Attorneys for Defendant ANTHONY DEVER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ALEX ALVORD; Case No. 30-2015-00801037-CU-FR-CJC Plaintiff, [Assigned to the Hon. Andrew P. Banks, Dept. C11] vs. ANTHONY DEVER, an individual: DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS’ MOTION DIGITAL SOUND PRODUCTION - = SERVICES, INC. a California Corporation; TO QUASH DEPOSITION SUBPOENA TO and DOES 1-10, inclusive, ROBERT E. HUTTENHOFF AND Defendants. REQUEST FOR MONETARY SANCTIONS [Filed and Served Concurrently with Declaration of H. Han Pai] Hearin Date: October 13, 2017 Time: 1:30 p.m. Department: Cl1 Complaint Filed: July 28, 2015 Trial Date: July 2, 2018 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Lee. TABLE OF CONTENTS I. INTRODUCTION Looe II. RELEVANT STATEMENT OF FACTS oie A. Plaintiffs’ Allegations Regarding Jordan And Proskauer ............................. B. Alvord’s Deposition Testimony And Discovery Responses Regarding Jordan And Proskauer ..............ccooiiiiiiiiiiiiiiiii ee . HullenlWo ffs DIeelarafiioms ; « ome: «sss sosowmns os 5s somes 65 s sonsmmns ¢ § 5s somone 552 HI. LEGAL ARGUMENT Lottie eee eee ee A. Opposing Counsel Are Not Absolutely Immune From Being Deposed ............ 1. Dever Has No Practicable Means To Obtain The Information ............. 2. Huttenhoff’s Testimony Is Crucial To The Preparation Of DeVer’s DEfenSE «one 3. Dever Does Not Seek Privileged Material .................coooiiiiiiin... B. Alvord Failed To Demonstrate Good Cause Justifying A Protective Order, And Thus Failed To Meet His Burden Of Proof ................. C. Plaintiffs’ Request For Sanctions Has No Merit And Should Be Denied ......... IV. CONCLUSION oo eee i DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salision|Lee. TABLE OF AUTHORITIES Cases BP Alaska Exploration, Inc. v. Sup. Ct., 199 Cal. App. 3d 1240, 1261 (1998) «nvr eee eee 9 Carehouse Convalescent Hosp. v. Sup. Ct., 143 Cal. App. Ath 1558, 1563 (ZO0G) cuss 5 sammie ss samme 55 5 sansmnss § 145 hiawings ia 3,4,8, 11 Emerson Electric Co. v. Superior Court, 16 Cal. 4th 1101, 1110 (1997) «envi eee eee eaee aes 11 Fairmont Ins. Co. v. Sup. Ct., 22 Cal. 4th 245, 255 (2000) ...eunriineee ieee eee 10 Fireman's Fund Ins. Co. v. Sup. Ct., 72 Cal. App. 3d 786, 790 (1977). eee eee eee eee 5,7 Franklin v. Allstate Corp., No. C-06-1909 MMC (EMC), 2008 U.S. Dist. LEXIS 28214, *3 (N. D. Cal. Feb. 29,2008) ........ccoooiiiiiiiiiiiiiinnnns 8 Goodman v. Citizens Life & Casualty Ins. Co., 253 Cal. App. 2d 807, 819 (1967) «unin eee 10 Merritt v. Sup Ct. 9 Cal. App. 3d 721, 730 (1970) neni eee eee 9,10, 11 Raytheon Co. v. Sup. Ct., 208 Cal. App. Jd G85, O88 [190 osx 17 0 sussesnsn 15 5 womsssonns s 13 5 summers 1 £5 5 Soames. § L803 § £3 § 6206S 9 Shelton v. American Motors Corp., 805 F. 2d 1323, 1327 (8th Cir. 1986) ...uuviiiiiiiii eee eee eee 3 Spectra-Physics, Inc. v. Sup. Ct., 198 Cal. App. 3d TAB, 1494 (19BBY «: : sssumuiss sss sommes s #55 sammmnsss ss» bums 5am £5 £5 55 3,8 Stadish v. Sup. Ct., 71 Cal. App. 4th 1130, 1145 (1999) «orn eee, 11 il DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salision|Lee. Statutes Civ. Proc. Code. § 1987.2(a) «ouvir ee eee eee eee 11 Civ. Pre. Code § 201 Bo0200H] cums: es: mums 2s 5 sommes 5 25 5 sommes 0555 5 sms 52 55 sums ss pases 1 552 10 Civ. Proc. Code § 2018.030(@) + ..ourtinrtett eit ieee eee eee eee ee eee eee eee eee 9 Civ. Proc. Code § 2018.030(D) ...euenininininiit ee 9 Civ. Prog. Code § 20200000 «samme sis samomonis ss 5 oamsmnsss i 55 5assmnig i 55 saR0mae 55 CARRIES S §§ 5 bass 7 Civ. Proc. Code § 2026.0T00C) «.eonriiinrtiit eet eee eee eee eee eee 5,7 sg IU OO -- 8.7 NY C.P.LR. § 3109(e) iil DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus I. INTRODUCTION Plaintiffs’ latest Motion seeks to deprive defendant Anthony Dever from obtaining critical information forming the basis of very specific allegations in Plaintiffs’ Third Amended Complaint and instead force Dever to travel across the country to get evidence that is readily available here. In essence, Alvord alleges that Dever purportedly committed fraud relating to offers to purchase DPS from non-party The Jordan Company and its attorney at Proskauer Rose LLP. In his written discovery responses, plaintiff Alex Alvord could only respond based on information and belief. And when deposed on this specific subject matter, Alvord explicitly testified that his attorney, Robert Huttenhoff, is the sole source of information and knowledge of those allegations in the complaint, and that Alvord personally lacks personal knowledge of that subject matter. This testimony, together with the fact that the non-party witnesses relevant to those allegations are all located in New York and that Mr. Huttenhoff voluntarily injected himself into this litigation by becoming a fact witness, are sufficient to justify Mr. Huttenhoff’s deposition. Indeed, such circumstances demonstrate the good cause needed to depose opposing counsel, as this is not the typical situation where one party is seeking to “tak[e] undue advantage of their adversary's industry and efforts.” Rather, Alvord and his counsel have put directly at issue these specific allegations that form the basis of affirmative claims against Defendants. Dever should be entitled to discovery on this issue. Accordingly, Plaintiffs’ motion to quash should be denied in its entirety. II. RELEVANT STATEMENT OF FACTS A. Plaintiffs’ Allegations Regarding Jordan And Proskauer. Plaintiff Alex Alvord initiated suit against Dever and former defendant Digitalsound Production Services, Inc. (“DPS”) on July 28, 2015. After multiple iterations of the complaint, the Court granted leave for Alvord and DPS (collectively, “Plaintiffs”) -- who later switched to a plaintiff -- to file a Third Amended Complaint (“TAC”) on February 9, 2017. The TAC adds additional defendants Courtney Ellis-Dever (“Ellis-Dever”), John Dever, Belinda Dever, Nicole 1 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus Dever, Ellis Design Group, Inc. (“Ellis Design”), KLL Communications, LLC, and Every Man Ministries (collectively with Dever, “Defendants”). The TAC alleges eight causes of action, all premised on the theory that Dever systematically duped Alvord into repeatedly investing in, and loaning funds to, DPS from 2011 to 2015, and thereafter misappropriating those corporate funds, including fraudulently transferring them to the remaining Defendants. [See TAC, {]23-274.] Among many other allegations of fraud, Alvord alleges that Dever made various false representations to him relating to an offer to purchase DPS by non-party The Jordan Company (“Jordan”), in or around January 30, 2013 and April 15, 2013, and fabricated Jordan's January 30, 2013 letter of intent. [See id., Iq147-160, 171-174, 176-185, 188 & Ex. G.] Alvord also alleges that Dever fabricated a second letter of intent dated June 1, 2015 prepared by Lauren Boglivi, an attorney from Proskauer Rose LLP (“Proskauer”), relating to another offer to purchase DPS by Jordan. [See id., {223-226 & Ex. J.] Plaintiffs seek to recover purported damages based on eight separate causes of action against Defendants, and allege damages in an amount no less than $38,200,000. [See id., Prayer, 193, 19.] The fraud claims are asserted by Alvord only. [See id., {{283-306.] B. Alvord’s Deposition Testimony And Discovery Responses Regarding Jordan And Proskauer. On January 18, 2017, Defendants took the second session of Alvord’s deposition. [See Declaration of H. Han Pai (“Pai Dec.”), q2, Ex. A.] Among other testimony, Alvord testified that: I. He has never spoken to anybody at Jordan; 2. His attorney, Robert Huttenhoff, communicated with Jordan; 3. Mr. Huttenhoff’s communications with Jordan were the sole basis for his information and belief with respect to his allegations; and 4. His personal knowledge comes only “from [his] communications with [his] attorney and his communications with the company” and no other source. [See id., Ex. A (at 258:16-260:14).] 2 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus When asked to admit in discovery that Dever did not prepare the Jordan letter of intent, Alvord could only respond based on his information and belief. [See id., 3, Exs. D-E (Supplemental Response to Form Interrogatory 17.1, at Request for Admission No. 17).] C. Huttenhoff’s Declarations. Mr. Huttenhoff has executed and filed two declarations in this matter on behalf of Plaintiffs, which include purported testimony relating to Jordan and Proskauer 1. July 25, 2015 declaration in support of Alvord’s Application for Right to Attach Order against Dever and DPS; and 2 February 10, 2016 declaration in support of Plaintiffs’ Opposition to Salisian | Lee LLP’s Motion to Quash Subpoena. [See Pai Dec., Exs. F-G (at J5).] III. LEGAL ARGUMENT A. Opposing Counsel Are Not Absolutely Immune From Being Deposed. While there is a general presumption against deposing opposing counsel, there is no categorical rule barring such depositions. See Spectra-Physics, Inc. v. Sup. Ct., 198 Cal. App. 3d 1487, 1494 (1988) (“We do not hold that opposing trial counsel is absolutely immune from being deposed.”) (quoting Shelton v. American Motors Corp., 805 F. 2d 1323, 1327 (8th Cir. 1986)). Rather, “California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?” Carehouse Convalescent Hosp. v. Sup. Ct., 143 Cal. App. 4th 1558, 1563 (2006) (quoting Spectra-Physics, Inc. v. Sup. Ct., 198 Cal. App. 3d 1487, 1493 (1988)). “[T]he proponent has the burden of proof to establish the predicate circumstances for the first two prongs.” Id. But as to the third prong, “[p]arties claiming the benefit of the work product rule have the burden to show preliminary facts to support its applicability.” Id. In the instant matter, Dever can establish the circumstances for the first two prongs. And Alvord has not met his burden as to the third. 3 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus 1 Dever Has No Practicable Means to Obtain the Information. As to the first prong, Plaintiffs rely on Carehouse to argue that Dever cannot meet this prong, but that reliance is misplaced, as the facts are easily distinguishable to those presented here, which demonstrate that Dever does not have other practicable means to obtain the information. There, plaintiffs sought to take the deposition of counsel for defendant nursing facility. The nursing facility had not only responded to written discovery relating to the nursing hours per-patient-day ratio for a decedent’s residency at the nursing facility, which was at issue in that case, but also produced staffing documentation which defendant’s counsel used to make the calculations. See Carehouse, 143 Cal. App. 4th at 1561. It was that staffing documentation that the Court later held “Plaintiffs have access to” and the basis for denying defendant’s counsel’s deposition. See id. at 1564. Here, the narrow and reasonably circumscribed category for which discovery is sought from Mr. Huttenhoff relates solely to Alvord’s allegations involving Jordan and Proskauer - all of whom are located out-of-state in New York. Dever has already taken steps to first utilize readily-available and less burdensome discovery devices in an effort to obtain this information from Alvord, but to no avail. First, Dever served written discovery requests to Alvord, which sought to elicit, among other information, the facts upon which Alvord bases his allegations. [See Pai Dec., {3, Exs. B- C.] But Alvord’s verified discovery responses on this issue simply claim that he can only respond based upon information and belief. [See id., |4, Exs. D-E (Supplemental Response to Form Interrogatory 17.1, at Request for Admission No. 17).] Next, Dever and other Defendants took Alvord’s deposition. [See id., {2.] When Alvord was asked about these specific allegations at his deposition, he testified in no uncertain terms that Mr. Huttenhoff’s communications are the sole source of information and knowledge of the Jordan allegations in the TAC. [See id., 2, Ex. A (1/18/17 Deposition Transcript, at 258:16-260:14).] Plainly, unlike the situation in Carehouse, this is not a scenario where Dever has access to the same underlying information as Plaintiffs. To the contrary, Mr. Huttenhoff’s communications 4 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus are the only basis for Alvord’s personal knowledge of the allegations, and Alvord admits that he has no personal knowledge of his own allegations. [See id.] Such circumstances are sufficient to permit Mr. Huttenhoff’s deposition. See Fireman's Fund Ins. Co. v. Sup. Ct., 72 Cal. App. 3d 786, 790 (1977) (“[I]n those cases in which an attorney for a party is the sole, or principal, negotiator and in which bad faith is alleged and punitive damages are sought based upon that allegation of bad faith, then we think the facts fall outside attorney-client privilege, and outside the work product rule, and the deposition of the attorney may be taken, subject to all proper objections.”) In Fireman’s Fund, the court held that counsel for the insured in a bad-faith action against an insurer could be deposed because he was the only witness, other than the employees of the insurer, to facts concerning the attempted negotiation of the insured’s claim from which the bad- faith allegations derived. See id. at 789-90. While the holding in the Fireman's Fund case was limited to the context of a bad-faith action, the rationale underlying that holding applies with equal force here. That is, like counsel for the insured in Fireman's Fund, here, too, Mr. Huttenhoff is “the only percipient witness to the facts which would support or refute the allegations” relating to Jordan and Proskauer, other than Jordan and Proskauer themselves. See Fireman's Fund Ins. Co., 72 Cal. App. at 790. The only other option would be to obtain information from the out-of-state and non-party witnesses, but those out-of-state and non-party witnesses are not subject to cost-efficient written discovery devices. Rather, the only discovery device available would be to subpoena and depose the non-party witnesses in New York, which requires proceeding under New York law. See Civ. Proc. Code § 2026.010(c) (“[A] a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken to compel the deponent to attend and to testify. . . .”) (emphasis added). Such a proposition is costly, burdensome, and not practical. In particular, New York has adopted the Uniform Interstate and International Depositions and Discovery Act (“UIIDDA”), N.Y. C.P.L.R. § 3109. While the UIIDDA aims to provide a streamlined procedure in signatory states for foreign, subpoenaing parties, the subpoenaed party 5 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus enjoys the benefits and protections of the law of the state in which it is located. See N.Y. C.P.L.R. § 3109(e) (“An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under this section must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.”) Thus, if Dever seeks to subpoena Jordan or Proskauer in New York under the UIDDA, and a discovery dispute arises - which would not be surprising - New York law would apply, and Dever would need to retain local New York counsel in order to resolve that dispute. Not an economical or practical proposition, especially since these questions can quickly and efficiently be asked of Mr. Huttenhoff. Further, Mr. Huttenhoff is not handling the litigation of this matter and is not one of the attorneys of record, as indicated on the caption page of Plaintiffs’ moving papers. [See Pai Dec., 97.1 This further militates in favor of finding that deposing him on these discrete topics would not be improperly invasive. In the course of meet and confer efforts, Dever proposed a potential solution of this barrier to Plaintiffs whereby Plaintiffs would bear Dever’s costs of traveling to New York and deposing all of the witnesses that Mr. Huttenhoff spoke to and/or were involved with the issue in lieu of deposing Mr. Huttenhoff himself. [See moving Declaration of Franklin J. Contreras, Jr. (“Contreras Dec.”), 3, Ex. 1 (at 7/31/17, 10:13 a.m. email).] However, Plaintiffs ignored this proposal. [See generally id., Ex. 1.] But that should nevertheless be unnecessary as Dever has established the first prong showing that the deposition of Mr. Huttenhoff should move forward. 2 Huttenhoff’s Testimony is Crucial to the Preparation of Dever’s Defense. In support of Plaintiffs’ argument that Dever cannot establish the second prong, Plaintiffs strangely argue that Dever himself “certainly has personal knowledge of what he did and did not do and who he did and did not speak to regarding the purported purchase of DPS’s assets by Jordan.” [Motion, 6:27-7:1.] Based on this curious logic, Plaintiffs conclude that the information sought from Mr. Huttenhoff “is not crucial to the preparation of the case” purportedly because 6 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus Dever “can provide the same information himself,” or obtain the information from the non-party witnesses. [See id., 7:1-5.] Dever has already explained why seeking the information from the non-parties is not practicable. Moreover, Dever cannot simply “pick up the telephone and call The Jordan Company and Lauren Boglivi.” [Motion, 6:22-23.] Plaintiffs ignore a critical distinction between the time when Mr. Huttenhoff did call those parties to obtain the basis for Alvord’s allegations and now. That is, the parties are now in active litigation which is different from when Mr. Huttenhoff contacted those witnesses pre-litigation. Thus, it is not simply a matter of “preference” to obtain depositions, but rather, a necessity in order to prepare for trial. Indeed, Ms. Boglivi has already executed a declaration in support of Plaintiffs’ Application for Right to Attach Order, which was filed on July 28, 2015. [See 7/28/15 Declaration of Lauren Boglivi.] It is readily apparent that Ms. Boglivi is adverse to Dever, and will not cooperate. And if non-party witnesses would somehow agree to provide informal discovery, that information would need to be under oath in order to be useful at trial. At this juncture, the only methods by which non-parties can be compelled to provide testimony and other evidence under oath is by deposition or subpoena. See Civ. Proc. Code § 2020.010 (outlining discovery methods for California non-parties). But as explained above, since these non-parties are also out-of-state, Dever must undergo the additional burden of traveling to New York, and then complying with foreign laws and procedures. See Civ. Proc. Code § 2026.010(c); N.Y. C.P.L.R. § 31009. But more importantly, to Plaintiffs’ claim that Dever “can provide the same information himself,” such a claim is nonsensical. If a party could simply rely on his own version of events in litigation, there would never be a need to conduct any discovery. By way of example, in the Fireman's Fund case, where the insured’s counsel and the insurer’s employees were the sole sources of information regarding bad-faith allegations, there was no suggestion that the insurer should simply seek the information from itself, rather than deposing the insured’s counsel. See Fireman's Fund Ins. Co., 72 Cal. App. at 789-90. Such is 7 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus this case here, as it would not make any sense for Dever to simply rely on his own personal knowledge to refute Alvord’s allegations. Plainly, Huttenhoff’s testimony is crucial to Dever’s case, as he has independent knowledge of relevant and material allegations in the TAC - upon which Alvord exclusively relies - by virtue of injecting himself into the litigation, and is therefore a percipient witness. Dever should be entitled to discovery on that information so that he may adequately prepare his defense of this case. 3. Dever Does not Seek Privileged Material. Finally, as to the third prong, Plaintiffs have not met their burden to “show preliminary facts to support its applicability.” Carehouse, 143 Cal. App. 4th at 1563. As well, the privilege “objection would not prevent depositions entirely, but at most might be invoked in the course of depositions as to specific questions invading the attorney-client privilege.” Spectra-Physics, Inc., 198 Cal. App. 3d at 1497. Instead, Plaintiffs merely rely on general legal principles pertaining to the attorney work product doctrine, without adequately explaining how Mr. Huttenhoff’s communications are protected. [See Motion, 7:6-8:3.] Indeed, Plaintiffs state in conclusory fashion that “the result of Mr. Huttenhoff’s work in communicating with third parties and his efforts and personal thoughts relating to the investigation of the allegations against Defendant constitute work product and thus are not discoverable.” [See id.] To the contrary, and as explained in the meet and confer process, Dever seeks information relating to the communications Mr. Huttenhoff had with Jordan representatives and Ms. Boglivi, and anyone else related to this issue, as well as documents exchanged with those non-parties, none of which is privileged and/or work product. First, there can be no reasonable dispute that the communications Mr. Huttenhoff had with non-parties is not privileged. See Franklin v. Allstate Corp., No. C-06-1909 MMC (EMC), 2008 U.S. Dist. LEXIS 28214, *3 (N.D. Cal. Feb. 29, 2008) (applying Spectra-Physics/Carehouse test and holding that “the matters on which they seek to depose Mr. Canatella (his communications with third parties, his observations about the demeanor of Mr. Schwartz, etc.) appear not to 8 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus implicate privilege communications between Mr. Canatella and his client.”) Indeed, Plaintiffs’ suggestion to seek the information from those third-parties directly implicitly acknowledges the non-privileged nature of the information sought. [See Motion, 6:22-25.] Those communications are similarly not converted into non-discoverable attorney work product. As a threshold matter, only “an attorney’s impressions, conclusions, opinions, or legal research or theories” receive absolute work product protection. See Civ. Proc. Code § 2018.030(a). All other “work product” receives only conditional protection, meaning it is subject to disclosure if the court “determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” Civ. Proc. Code § 2018.030(b). Moreover, “[t]here is no statutory provision governing waiver of work product protection.” Raytheon Co. v. Sup. Ct., 208 Cal. App. 3d 683, 688 (1989). Thus, “[a] claim of work product may also be waived by failure to make the claim, by tendering certain issues and by conduct between discovery and trial that is inconsistent with such claim.” BP Alaska Exploration, Inc. v. Sup. Ct., 199 Cal. App. 3d 1240, 1261 (1998) (emphasis added). Here, denial of Mr. Huttenhoff’s subpoena will undoubtedly result in unfair prejudice to Dever in preparing his defense or will otherwise result in an injustice. Alvord has expressly put at issue the allegations of fraud relating to Jordan and Proskauer. When tested on his allegations in written discovery and deposition, Alvord pointed to his counsel as the sole source of information underlying those allegations. Such circumstances should constitute a waiver of any purported work product protection. See Merritt v. Sup Ct., 9 Cal. App. 3d 721, 730 (1970) (“Here the theory of plaintiff's lawsuit placed in issue the conduct and state of mind of his personal injury counsel in failing to propose a settlement. It is to this issue that interrogatory 27 was directed.”) In Merritt, plaintiff claimed that an insurer acted in bad faith in an earlier lawsuit by furnishing inaccurate information that had “confused” his then-lawyer. The court held that by tendering the issue as to the lawyer’s mental state, plaintiff waived the attorney-client privilege as to advice received from the lawyer, plaintiff waived the attorney-client privilege and work product protection. See id. In so holding, the court held: 9 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus It is obvious both from the issues framed and the contents of the depositions of plaintiff's prior counsel that plaintiff would rely heavily upon evidence to be given by his said counsel and that he would be using his prior counsel to prove matter which they could only have learned in the course of their employment. Thus it was not merely the initiation of the lawsuit but rather the manner of its prosecution which constituted the waiver. Id. at 730. Here, Alvord is similarly relying heavily upon evidence provided to him by Mr. Huttenhoff. In fact, Mr. Huttenhoff’s communications are the sole basis for his allegations, which are based solely on information and belief. [See Pai Dec., 2, Ex. A.] Alvord relies exclusively on Mr. Huttenhoff’s communications to make his claims, thus putting those communications directly at issue, and making Huttenhoff a percipient witness in this action. Indeed, Mr. Huttenhoff has already filed two declarations in this matter in furtherance of prosecuting Alvord’s claims. [See id., Exs. E-F.] Simply, “[h]e cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.” Id. at 731. Contrary to the situations underlying the general public policy prohibiting attorney depositions, this is plainly not a situation where Dever is attempting to “tak[e] undue advantage of their adversary's industry and efforts.” Civ. Proc. Code § 2018.020(b). Rather, the policy considerations against deposing opposing counsel are not present here where Alvord has already explicitly admitted that he has no personal knowledge, let alone any independent knowledge, of the basis for those specific allegations for which Dever seeks testimony from Mr. Huttenhoff. As such, Alvord cannot meet his burden under the third prong, and Dever should have a right to explore that basis by deposing Mr. Huttenhoff. B. Alvord Failed To Demonstrate Good Cause Justifying A Protective Order, And Thus Failed To Meet His Burden Of Proof. “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Sup. Ct., 22 Cal. 4th 245, 255 (2000). “‘The concept of good cause . . . calls for a factual exposition of a reasonable ground for the sought order.”” Goodman v. Citizens Life & Casualty Ins. Co., 253 Cal. App. 2d 807, 819 (1967) 10 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus (citations omitted) (discussing good cause requirement for protective orders pertaining to depositions under former Code of Civil Procedure section 2019(b)(1)). Indeed, a motion for protective order requires a showing that the burdens involved in the discovery process clearly outweigh whatever benefits are sought to be obtained. See Emerson Electric Co. v. Sup. Ct., 16 Cal. 4th 1101, 1110 (1997). Finally, to obtain a protective order, the moving party must show good cause by a preponderance of the evidence. See Stadish v. Sup. Ct., 71 Cal. App. 4th 1130, 1145 (1999). Here, for the same reasons articulated above as to why Alvord failed to meet his burden under the third prong of the Carehouse analysis, Alvord likewise fails to meet his burden to justify issuance of a protective order. Alvord has put directly at issue his allegations relating to Jordan and Proskauer, and therefore Mr. Huttenhoff cannot hide behind the work product doctrine when Dever seeks to test those allegations. See Merritt, 9 Cal. App. 3d at 729-31. C. Plaintiffs’ Request For Sanctions Has No Merit And Should Be Denied. Should the Court grant Plaintiffs’ motion, sanctions against Dever are not warranted. A court has discretion to impose sanctions against the losing party on a motion to quash if it finds that the motion was opposed “in bad faith or without substantial justification”. See Civ. Proc. Code § 1987.2(a) As set forth above, Dever did not oppose in bad faith and acted with substantial justification. Specifically: (1) the subpoena is narrowly-tailored to seek non-privileged and non- work product materials underlying Alvord’s allegations specifically relating to Jordan and Proskauer; (2) Dever first employed other, less-intrusive discovery devices in an effort to obtain this information prior to subpoenaing Plaintiffs’ counsel, but to no avail; and (3) Dever met and conferred in good faith with Plaintiffs regarding the need for Mr. Huttenhoff’s testimony, including explaining in detail the legal and factual bases for his position. That Plaintiffs “will agree to disagree” certainly does not amount to bad faith or lack of substantial justification when the parties are simply in disagreement as to their respective positions. [See Contreras Dec., 3, Ex. 1 (at 8/8/17, 9:57 a.m. email).] 11 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leeus Iv. Motion to Quash in its entirety. The short deposition of Mr. Huttenhoff on these discrete issues should move forward to avoid all parties having to unnecessarily incur exorbitant attorneys’ fees, CONCLUSION Based upon the foregoing, Dever respectfully requests that the Court deny Plaintiffs’ costs, and travel expenses to get this necessary evidence. DATED: September 29, 2017 SALISIAN | LEE LLP H. Han Pai Attorneys for Defendant ANTHONY DEVER 12 DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS” MOTION TO QUASH HUTTENHOFF SUBPOENA AND REQUEST FOR MONETARY SANCTIONS N Y O h BA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leew PROOF OF SERVICE OCSC Case No. 30-2015-00801037-CU-FR-CJC STATE OF CALIFORNIA ) SS. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 550 South Hope Street, Suite 750, Los Angeles, California 90071. On September 29, 2017, I caused the foregoing document(s) described as: 1. DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS’ MOTION TO QUASH DEPOSITION SUBPOENA TO ROBERT E. HUTTENHOFF AND REQUEST FOR MONETARY SANCTIONS 2. DECLARATION OF H. HAN PAI IN SUPPORT OF DEFENDANT ANTHONY DEVER’S OPPOSITION TO PLAINTIFFS’ MOTION TO QUASH DEPOSITION SUBPOENA TO ROBERT E. HUTTENHOFF AND REQUEST FOR MONETARY SANCTIONS to be served on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST X VIA ORANGE COUNTY E-FILING Pursuant to OCSC Local Rule 352, following ordinary business practices, I electronically filed the foregoing document(s) with the Clerk of the Court by using a court-approved Electronic Filing Service Provider. I checked the Electronic Filing Service Provider’s docket for this case and determined that the person(s) indicated above are registered as electronic filers who have consented to electronic service through the Electronic Filing Service Provider transmission sent to the e-mail address(es) listed above. X STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 29, 2017, tin California. / Ayana Burton 1 PROOF OF SERVICE AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Salisian|Leew SERVICE LIST OCSC Case No. 30-2015-00801037-CU-FR-CJC Ronald S. Hodges Franklin Contreras Heather B. Dillion Shulman Hodges & Bastian LLP 100 Spectrum Center Drive, Suite 600 Irvine, CA 92618 Telephone: (949) 340-3400 Facsimile: (949) 340-3000 Email: RHodges @shbllp.com; FContreras @shbllp.com HDillion @shbllp.com Attorneys for Plaintiffs Alex Alvord and Digitalsound Production Services, Inc. Matthew L. Eanet Brian D. Lauter Eanet, PC 550 South Hope Street, Suite 750 Los Angeles, California 90071 Telephone: (310) 775-2495 Facsimile: (310) 593-2589 Email: meanet@eanetpc.com; brian@eanetpc.com Attorneys for Defendants Courtney Ellis-Dever, Ellis Design Group, Inc., John Dever, Belinda Dever, and Nicole Dever Justin H. Sanders Sanders Roberts & Jewett LLP 1055 West 7th Street, Suite 3050 Los Angeles, California 90017 Telephone: (213) 426-5000 Facsimile: (213) 234-4581 Email: jsanders@sandersroberts.com Attorneys for Defendants Every Man Ministries and KLL Communications, LLC 2 PROOF OF SERVICE