Montecito County Club LLC vs Kevin C Root et al

Case Number

21CV02227

Case Type

Hearing Date / Time

Fri, 09/15/2023 - 10:00

Nature of Proceedings

Motion: Protective Order

Tentative Ruling

TENTATIVE RULING:

For the reasons set forth herein: The motion for a protective order and appointment of a limited purpose discovery referee is granted. The discovery referee will be appointed for the limited purpose of supervising the completion of the deposition of Kevin Root. The discovery referee will provide a brief report to the court regarding the continued deposition. Counsel is ordered to appear at the hearing on this matter, either in person or remotely, to discuss selection of the discovery referee.

Plaintiff will pay one-half of the discovery referee’s fees and defendants will pay one-half of the fees. The court retains jurisdiction to reallocate the fees at the time of trial or further order.

Background:

Plaintiff Montecito Country Club, LLC (“MCC”) filed its original complaint on June 4, 2021, against defendants Kevin Root (“Kevin”) and Jeannette Root (“Jeannette”) (Note: as the defendants share the same surname, they will be referred to by their first names. No disrespect is intended.) On January 24, 2022, MCC filed the operative first amended complaint (“FAC”) setting forth causes of action for: (1) Quiet title (recorded easement); (2) Quiet title (prescriptive easement); (3) Enforcement of easement; (4) Declaratory relief; and (5) Injunctive relief.

As alleged in the FAC: MCC owns real property located at 920 Summit Road, Santa Barbara, California. (FAC, ¶ 11.) The property consists of several large parcels and contains a recorded easement for a cart path and greens-keepers truck purposes. (Ibid.) On July 21, 2016, defendants purchased the property located at 1059 Summit Road, which contains the easement at issue. (FAC, ¶ 17.) In 2017, defendants proposed relocating the existing boundary fence, constructing a retaining wall, and grading MCC’s easement. (Ibid.) On July 16, 2018, MCC denied defendants’ request. (Ibid.) “Four years later, while the Club was shut-down and operating on a skeleton staff due to the COVID-19 pandemic, the Root Defendants removed Plaintiff’s fencing and hedgerow plantings, constructed a retaining wall raising the grade of the easement by several feet; installed subterranean drainage for Root Defendants’ entire property; installed a wire fence and multiple ‘Keep Out’ signs, and installed a hedgerow along the boundary line of Plaintiff’s property. As a result, Plaintiff is presently unable to access or use the easement for any purpose.” (FAC, ¶ 18.) The construction and landscaping were performed without permits from the City of Santa Barbara and without the consent of MCC. (FAC, ¶ 19.) “In or about May 2021, Plaintiff decided to install a decomposed granite cart maintenance trail along the exterior of the 14th hole, approximately along the path of the cart path that existed prior to the course re-model in 2016, and utilizing Plaintiff’s existing easement over the Root Defendants’ property. Plaintiff further intends to install a line of Ficus hedgerow between the path and the boundary line of the easement, in a manner similar to that which existed from at least 2007 until Defendants’ removal of the hedgerow in approximately 2020.” (FAC, ¶ 20.) “The Root Defendants’ unpermitted and unconsented encroachment is preventing Plaintiff’s intended use of its easement, and further, is preventing any use of the easement by Plaintiff for any purpose. Plaintiff has requested that Defendants remove the encroachment, but Defendants have refused.” (FAC, ¶ 21.)

Defendants filed a verified answer to the complaint on May 24, 2022, admitting some allegations and denying others. Defendants also set forth 17 affirmative defenses.

Kevin’s deposition began on May 31, 2023, and was taken by MCC’s counsel Cappello. (Norton Dec., ¶ 8, 9 & Exh. A.) During the deposition, Cappello made several comments that Norton found to be argumentative, snide, and attempts to intimidate and harass Kevin. (Norton Dec., ¶ 10.) Those comments include: (1) At the beginning of the deposition Kevin stated that it was unfortunate to meet Cappello under the circumstances and that he was probably the most uncomfortable person in the room. Cappello responded that it was only unfortunate for Kevin and that he would try to make the deposition as uncomfortable as possible. (Depo, p. 7, ll. 6-20); (2) Cappello asked Kevin about rats and then stated that “[t]here are rats all over this place and some of the look like humans.” (Depo, p. 54, ll. 8-18); (3) Cappello asked Kevin why he “chose to get involved in litigation.” (Depo, p. 17, ll. 20-23); (4) Cappello stated: “If you are going to use your pee break to brainwash your client, this thing is going to take a lot longer than I want it to take. I have got a right to know whether or not you conferred with him.” (Depo, p. 25, ll. 12-15); (5) Cappello asked, “you are not good with names, Mr. Root” when Kevin testified that he could not remember someone’s name. (Depo, p. 27, ll. 6-9); (6) Cappello refused to rephrase questions when Kevin indicated that he did not understand what was being asked and accused Norton of coaching. (Depo, p. 62, l. 11 - p. 63, l. 25); (7) Cappello stated that Kevin was “one of those optimists, that even though you are being told no, no doesn’t necessarily mean no.” (Depo, p. 81, ll. 13-21); (8) When Kevin testified that he does not have a personal assistant, Cappello stated, “that’s why you get into legal trouble, because you do all this stuff yourself.” (Depo, p. 95, ll. 5-8); (9) When Kevin testified that he did not know who a third party may have spoken to about an issue, Cappello stated, I’m not going to let you get away with that, Mr. Root. (Depo, p. 105, ll. 14-16); (10) When Kevin responded to a question, Cappello stated, “This is – this is – very, very troubling to me as a lawyer. . . This means one of two things to me. One, you did it because you were being duplicitous or, or two, you’re incompetent. And I know you know you’re not incompetent, so tell my why you weren’t being duplicitous.” (Depo, p. 125, l. 19 – p. 126, l. 7); (11) During a heated exchange, Cappello stated, “When I get an answer from a witness that I do not believe, I believe the witness is not telling me the truth and has actually made up an answer, he is going to get, or she is going to get a very tough question next. Now your client just said to me that he thinks or believes that my client doesn’t take pride in his property because a hedge on his property had rats in it. Now, I know that’s not the truth.” (Depo, p. 137, ll. 15-23); (12) Cappello told Norton, “Your client needs to tell the truth. When he tells the truth, he is going to get the next question.” (Depo, p. 138, ll. 4-6); (13) In referring to a document, Cappello stated, to Norton, “I’ve got a document from the city that says you told them that. And the man just testified yesterday. So, who is the liar here?” Norton replied, “ Now you are calling me a liar?” Cappello followed up with, “I am asking a question. I didn’t call you a liar. I said, “Who’s the liar?” (Depo, p. 139, ll. 1-7); and (14) To Norton, Cappello stated, “I would be happy to sit you down and give you a good lesson on how a deposition should be taken, especially when the witness is lying.” (Depo, p. 140, ll. 2-4.)

Norton suspended the deposition because he felt it necessary to seek a discovery referee. Attempts to meet and confer regarding the events that took place at Kevin’s deposition were unsuccessful. Kevin now moves, pursuant to Code of Civil Procedure section 2025.420, subdivision (b) for a protective order and for appointment of Hon. Fred Bysshe (Ret.) as a discovery referee solely for the completion of Kevin’s deposition.

MCC opposes the motion and argues, in essence, that Cappello’s questions were all permissible and that “it was Mr. Norton’s conduct that was problematic, including various attempts to disrupt the flow of the deposition, calling for a break almost immediately after the deposition began and then instructing the witness not to answer a simple question about whether he conferred with counsel during the break (not regarding the content of the conversation). Mr. Norton denigrated Mr. Cappello and impugned his reputation as member of the bar on the record, describing Mr. Cappello as ‘petty and smarmy and condescending.’ ” (Opposition, p. 6, ll. 23-28.) MCC also specifically objects to the appointment of Bysshe as the discovery referee and seeks monetary sanctions in the amount of $63,802.50.

MCC lodged selected video clips of Kevin’s deposition which the court has reviewed and considered along with the documents filed both in support of and in opposition to the motion.

Analysis:

As an initial matter, what the court is concerned about in ruling on this motion is counsels’ behavior. Arguments made regarding the merits of each party’s case, or whether objections were waived for failure to make them, are irrelevant for purposes of the present motion and will not be commented on.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

Every court shall have the power “[t]o provide for the orderly conduct of proceedings before it, or its officers.” (Code Civ. Proc., § 128, subd. (a)(3).)

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . That the deposition be taken only on certain specified terms and conditions.” (Code Civ. Proc., § 2025.420, subd. (b)(5).

“[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Appendix 5 to the court’s local rules provides guidelines for attorneys practicing before the court. Those guidelines include: (1) “A lawyer must work to advance the lawful and legitimate interest of his or her client. This duty includes an obligation not to act abusively or discourteously. Zealous representation of the client's interest should be carried out in a professional manner.” (2) “Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally. A lawyer should not behave offensively, derogatorily or discourteously even when his or her client so desires. If necessary, a lawyer should advise a client that he or she will not engage in such conduct, even if directed.” (3) “Discovery shall not be used to harass opposing counselor the opposing party . . . “ and (4) “A lawyer should not engage in conduct during a deposition that would not be appropriate in the presence of a judge.”

The introduction to the California Attorney Guidelines of Civility and Professionalism explains:

“As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.

These are guidelines for civility. The Guidelines are offered because civility in the practice of law promotes both the effectiveness and the enjoyment of the practice and economical client representation. The legal profession must strive for the highest standards of attorney behavior to elevate and enhance our service to justice. Uncivil or unprofessional conduct not only disserves the individual involved, it demeans the profession as a whole and our system of justice.”

MCC argues that the right to discovery is broad. This is a correct statement and defendants concede as much. MCC then goes on to cite cases that concern cross-examination at trial. “ ‘Cross-examination’ is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.” (Evid. Code, § 761.) Depositions are discovery tools. The cases cited by MCC do not support the contention that name calling and condescending comments are acceptable behavior at depositions. Even if the cited authorities were relevant here, it does not mean that counsel has unfettered permission to insult the deponent, and the deponent’s attorney, or to be demeaning. Were this a cross-examination at trial, the witness would have the benefit of a judge to exercise a degree of control over the questioning and comments.

In reviewing the deposition transcripts, as well as the video clips provided, it is apparent that some of Cappello’s comments were nothing more than banter and an attempt to introduce some levity into the situation. For example, the initial comment that he would try to make the deposition as uncomfortable as possible, was obviously not meant as a serious comment. It was preceded by laughter and Kevin followed up with: “I greatly appreciate that. No problem. I will do the same, as well.” (Depo, p. 7, ll. 21-22.)

However, later comments were not made for any legitimate purpose, went beyond “tough questions,” and were inappropriate. While Cappello was careful to not directly call either Kevin or Norton “liars,” the implication is clear. Likewise, comments such as, “that’s why you get into legal trouble, because you do all this stuff yourself,” and calling Kevin either “duplicitous” or “incompetent,” caused “unwarranted annoyance, embarrassment, or oppression.” The comments were uncalled for. To be clear, Norton was not blameless in this situation. He stated: “We know who the liar is in this case. And I would be shocked if you don’t know who that liar is.” (Depo, p. 138, ll. 14-15.) Norton also called Cappello “petty and smarmy and condescending.” Neither counsel conducted themselves with the courtesy and professionalism that they should have.

Defendants have demonstrated good cause, and exceptional circumstances, justifying the granting of the protective order and appointment of a limited purpose discovery referee. The presence of a discovery referee will likely benefit all parties in the completion of Kevin’s deposition and assist in ensuring that the deposition is completed with the civility that all counsel are expected to exhibit.

Defendants do not request sanctions. MCC seeks monetary sanctions as set forth above. As the motion will be granted, no sanctions will be awarded in favor of either party.