Anastasia Martinez v. County of Los Angeles

Opinion

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-06589-DSF-MAR Date: January 8, 2024 Title: Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE VALERIE VELASCO N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: Attorneys Present for Defendants: N/A N/A Proceedings: (In Chambers) ORDER DENYING MOTION FOR PROTECTIVE ORDER, DKT. 97 I. BACKGROUND:

On September 14, 2022, Anastasia Martinez (“Plaintiff”) filed the instant 42 U.S.C. § 1983 (“section 1983”) action against County of Los Angeles (“County”), Alex Villanueva, California Commerce Club, Inc., and Danny Banuelos (collectively, “Defendants”). ECF Docket No. (“Dkt.”) 1. Plaintiff alleges violations of the Fourth and Fourteenth Amendment arising from an incident where Banuelos allegedly committed sexual battery on Plaintiff. Id. On December 21, 2023, Defendants filed a Motion for a Protective Order preventing the deposition of Undersheriff April tardy. Dkt. 97. The Motion is before the Court on the parties’ joint stipulation. Id. The Court finds the Motion appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. Accordingly, the January 17, 2024 hearing is hereby VACATED. For the reasons below, Defendant’s Motion is DENIED. II. DISCUSSION A. THE MOTION IS PREMATURE 1. Applicable law A court may for good cause enter a protective order under Rule 26(c) to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The party seeking to limit or prevent discovery bears the burden of demonstrating good cause for entry of a protective CIVIL MINUTES – GENERAL

Case No. 2:22-cv-06589-DSF-MAR Date: January 8, 2024 Title: order. Roe v. Puig, No. CV 20-11064-FMO (MRWx), 2021 WL 4557229, at *1 (C.D. Cal. Aug. 13, 2021) (citing Fed. R. Civ. P. 26(c)(1)); see also Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006) (noting that Rule 26(c) requires a “particularized showing” of good cause for the entry of a protective order). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex. rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (citing Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)) (holding that “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test”).

2. Analysis Here, although Plaintiff previously noticed a deposition for Undersheriff Tardy and took a certificate of nonappearance when they failed to appear, there is no pending notice for a deposition, nor is there a pending motion to compel Tardy’s deposition. In fact, as both parties acknowledge, the original discovery cut-off of December 15, 2023 has passed. Dkt. 76 (order setting deadline). The district judge recently extended fact discovery by thirty (30) days for the limited purpose of taking the depositions of Gerald Galvez, Julie Martinez, and Carlos Prieto. Dkt. 96. The district judge explicitly clarified that the extension “does not apply to any other fact discovery.” Id. Accordingly, Defendants’ motion for a protective order appears wholly unnecessary until Plaintiff either serves another deposition notice or files a motion to compel Tardy’s deposition, both of which would also require Plaintiff to seek another extension of the discovery deadline from the district judge. Defendants essentially seek an order “just in case” Plaintiff will renew their attempts to depose Tardy at some point in the future; in other words, the harm Defendants seek protection from is, at this point, purely hypothetical. Because Defendants cannot show that prejudice or harm “will result” if no protective order is granted, Defendants have not established good cause for their requested protective order. /// /// CIVIL MINUTES – GENERAL

Case No. 2:22-cv-06589-DSF-MAR Date: January 8, 2024 Title: B. REQUEST FOR COSTS AND FEES Plaintiff requests that Defendants and/or their counsel should be ordered to pay Plaintiff’s reasonable expenses incurred in opposing the motion. Dkt. 97 at 14. Fed. R. of Civ. P. 26(c)(3) states that Fed. R. of Civ. P. 37(a)(5) applies to the award of expenses in motions for protective orders. Fed. R. of Civ. P. 37(a)(5) (“Rule 37(a)(5)”) provides that, if a motion is denied, the court: must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. of Civ. P. 37(a)(5)(B). Here, the Court tends to agree with Plaintiff that the instant motion is, for the time being, not substantially justified. However, there remains a chance that Plaintiff could renew their efforts to depose Tardy. Indeed, counsel for Defendants specifically told counsel for Plaintiff that they would not file the instant motion if Plaintiff would agree in writing that they would not seek to pursue Tardy’s deposition; counsel for Plaintiff refused to make such a promise. Declaration of Olu K. Orange ¶ 3, Ex. A. Plaintiff was well within their right to refuse to foreclose potential avenues of discovery. However, the possibility that Plaintiff might yet seek to depose Tardy complicates the question of whether an award of costs and fees for this motion would be appropriate. Though the motion may appear to be frivolous now, if Plaintiff proceeded to attempt to compel the deposition of Tardy, this motion would no longer appear frivolous in retrospect—the motion would still have been premature, but not necessarily unjustified. In this scenario, an award of costs and fees for this motion would be, at best, a windfall for Plaintiff, and, at worst, a reward for successful gamesmanship. Ultimately, because Plaintiff may still take actions that would render this motion substantially justified at a later date, the Court finds that an award of expenses would be unjust here. /// CIVIL MINUTES – GENERAL

Case No. 2:22-cv-06589-DSF-MAR Date: January 8, 2024 Title:

III. ORDER Defendants’ Motion for a Protective Order is DENIED, without prejudice. Plaintiff’s request for costs is DENIED.

IT IS SO ORDERED.

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