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  • Aaron Persky vs Shannon Bushey Writ of Mandate Unlimited (02)  document preview
  • Aaron Persky vs Shannon Bushey Writ of Mandate Unlimited (02)  document preview
  • Aaron Persky vs Shannon Bushey Writ of Mandate Unlimited (02)  document preview
  • Aaron Persky vs Shannon Bushey Writ of Mandate Unlimited (02)  document preview
						
                                

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JAMES McMANIS (40958) ELIZABETH PIPKIN (243611) CHRISTINE PEEK (234573) ABIMAEL BASTIDA (303355) McMANIS FAULKNER a Professional Corporation 50 West San Fernando Street, 10th Floor San Jose, California 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Email: epipkin@memanislaw.com MARK S. ROSEN (72431) Attorney at Law 600 W. Santa Ana Blvd., Suite 814 Santa Ana, California 92701 Telephone: (714) 285-9838 Facsimile: (714) 285-9840 Email: marksrosen@aol.com Attorneys for Petitioner, Aaron Persky SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA AARON PERSKY, Petitioner, Vv. SHANNON BUSHEY, Santa Clara County Registrar of Voters, Respondent, Michele Dauber, et al., Real Parties in Interest, Alex Padilla, in his official capacity as Secretary of State, Intervenor. Case No. 1-17-CV-314311 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMANT, MICHELE DAUBER Date: August 15, 2018 Time: 10:00 a.m. Dept.: 4 Judge: The Hon. Kay Tsenin (sitting by assignment) REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311SoS 0D em IND WH BF WN 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS INTRODUCTION .essssessssssessssesssscsssvesseessssesssecsssesssesssscssssscssecsssecssvecssessssessussssavecssnsessnseessseenssesened 5 DISCUSSION 0... .cscessessssssesssesssesssessscsscsavesscssvesnessvcssessesssessneasessussseceuesavecsessnessuosssesuecnueseneeanseneensersees 5 1. Dauber’s Fee Motion under Section 1021.5 Warrants Discovery Because Issues of Fact Predominate, .....c.sccsssessesssssessssessssssseesesseesesscssesesssssessssneesssscsesseanesseeneenssreenenes 5 A. Dauber’s Fee Motion Raises New Factual Issues Disputed by Petitioner.........5 B. The Factual Disputes Warrant Discovery. 0.0... esssessssesessesesreesesneseenenssensarenene 6 Il. It is Not “Burdensome” to Require a Litigant Claiming Fees to Attend a Deposition. ....ssccccessessecsssessessesseesssessessessssscssessssesssesssvcsscssssessesseenseessvessessessesneeneaveseees 9 A. The Deposition Notice Is Proper under the Code of Civil Procedure... 9 B. There Is No Heightened Good Cause Requirement to Depose a Party. .......... 10 C. Dauber Fails to Show Any Purported Burden Outweighs the Right to DISCOVETY ...ssesssesssecsesssecseesessseessesssesnscssssseesessnsesesssecsesesesssecssessesensssessneeseeennesses 11 Ill. There Is No Reason to Delay a Decision on Petitioner’s Motion to Compel........ 13 CONCLUSION... cessesssssesssesstessesssesssssesvessnesuesansesessscesessneesessuessnessssuesssssnessueasecsuessusaseensetueenseens 13 2 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE, DAUBER; Case No. 1-17-CV-3143110 em YN DA WwW BR WN RYN NY NY YN KY NN He Be ewe Be Be we ewe eB eB oN DA AW BF BH =F Se we NI DWH FB BH KF DS TABLE OF AUTHORITIES CASES Bell v, Vista Unified School Dist. (2000) 82 Cal. App.4th 672 v.cccscssssessessesessesreesessrereessereseeseeee 6 1 6 Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961 Carehouse Convalescent Hosp. v. Superior Court (Sims) (2006) 143 Cal.App.4th 1558............ 10 Ciani v. San Diego Tr. & Sav. Bank (1994) 25 Cal. App.4th 563 ....sccssessessesseesseesessnsessseseeeness 6,7 Conservatorship of Whitley (2010) 50 Cal.4th 1206 ...cccscesssesessesessessesessessesseessesesseesessnseseesvess 7 Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302....cscccsssessessessesseseesreseeseeseeseenveses 7 Emerson Elec. Co. v. Superior Court (Grayson) (1997) 16 Cal.4th 1101. cseseseseceseeeeneenee 11 In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation (Ist Cir. 1995) 56 F.3d 295... Los Angeles County Bd. of Supervisors v. Superior Court (ACLU of Southern Cal.) (2016) 2 Cal. Sth 282 vw iceccccccssssessessessesseseesesessessesseesessessesssesssesvsseesssesssseescessssssesesssscssssesseesetssesee 10 Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d Lo... 8 Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331 ..csecsssessssesseeseseesssseessessarsssesesesees 7 Millview County Water District v. State Water Resources Control Board (2016) 4 Cal.App.Sth 759 ...cssssssssssssssessssssseesenesssecsesesessssesssensesesssessssseassseeesessseenssseassseasseeneacaneaees 8 Oak Grove School District v. City Title Insurance Co. (1963) 217 Cal.App.2d 678... wd Riverside Sheriff's Association v. County of Riverside (2007) 152 Cal. App.4th 414 vce 10 Roybal v. Governing Board of Salinas City Elementary School Dist. (2008) 159 Cal. App.4th 1143 v.scecssessssesseesssesssvessssesssecsssessssesssvessnscssessseesssesssesssseeesnvessssssssseesss 6,8 Serrano v. Unruh (1982) 32 Cal.3d 621 vcsssecsessessesvesessscsssseessssesessssasessssesessssseeseesesassavsavssssessnees 11 Snyder v. Superior Court (Snyder) (1970) 9 Cal.App.3d 579 w.cecsecsesessssessesseseeseeseesnessesseseseessees 10 wT Summit Media LLC vy. City of Los Angeles (2015) 240 Cal.App.4th 171... Woodland Hills Residents Assn. Inc., v. City Council (1979) 23 Cal.3d 917 sesso 6,7 3 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No, 1-17-CV-314311So Oo em ND HW BF BW N YN NY NY NY NN KY NY Be Bee ee eB em eH Ke eo YN DA A RF BH KF So wmM IN DWH BRB WN STATUTES Code Civ. Proc., § 1021S cecsesseessesssessesssesessssesesssecssesseessessessscssssssesanesseessessnseseesnsenesseesseess 5,6, 7,8 Code Civ. Proc., § 2025.250 vcsessesessssseresessessssesssessssesesessesssssessssessusssssseestsesessssssssesseseeseeses 9,10 Code Civ. Proc., § 2025.250, Subd. (8) ..essseeesesseeestesessssesessssessesseseersseessesesssensaessssessssessseesssesneee 9 Code Civ. Proc., § 2025.260 ..esesssssenssssssssssssssssssssssvsscsssvsncsssssssssesssssenssseseeserensevensavenseseneseenees 9 Code Civ. Proc., § 2025.420 ic cessesecsssesessssesesssrssssessesssersssscsnssssssssecsssssesscsvsasseseesssessssesesseesssrense ll TREATISES Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) § 8:393, p. 8D-9 vececeesecssesssessesseessessrsssessvsssesssssesseeseeesseseesssesessssesseasecsesessessnetsneesesnness 13 4 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-3143110 Oo IN DW BF WN | NN NY NY NY N NN NY Bee Be se we ee eo NDA BF BH =F SD we NY DH FB NH KF SO INTRODUCTION Real party in interest and fee claimant Michele Dauber (“Dauber”) asserts the right to recover fees as a “successful party,” but disclaims any obligation to answer deposition questions relevant to the issues she has raised through her fee motion. Rather than seek a protective order, Dauber simply refused to attend her noticed deposition. Dauber fails to justify her refusal to appear, and fails to show the deposition would impose any burden that outweighs Petitioner’s right to discovery. Petitioner’s motion to compel Dauber’s deposition should be granted. DISCUSSION I. Dauber’s Fee Motion under Section 1021.5 Warrants Discovery Because Issues of Fact Predominate. The Court of Appeal has expressly authorized discovery after entry of judgment where, as here, a motion to tax costs or a motion for attorneys’ fees is pending. (See Oak Grove School District v. City Title Insurance Co. (1963) 217 Cal.App.2d 678, 709-13.) Under these circumstances, the moving party is seeking testimony concerning an issue of fact which did not exist at the time of trial. (See Petitioner’s Motion to Compel Deposition of Real Party in Interest and Fee Claimant, Michele Dauber (“Motion to Compel”), pp. 6-7; see also Oak Grove, supra, 217 Cal.App.2d at 709-13.) Dauber does not dispute that, “in an appropriate case, post- judgment discovery — including a deposition — is legally authorized in connection with a motion to tax costs or a motion for award of attorneys’ fees.” (See Dauber’s Opposition to Petitioner’s Motion to Compel (“Opposition”), p. 3.) It appears, then, that the dispute lies over whether this is “an appropriate case.” A. Dauber’s Fee Motion Raises New Factual Issues Disputed by Petitioner. Dauber’s fee motion raises issues of fact that did not previously exist in this litigation: whether an award of attorneys’ fees is warranted, and the reasonableness of the fees and costs claimed. (See Motion to Compel, pp. 6-7.) Dauber’s argument is flawed, because Dauber glosses over the analyses and requirements related to these issues. Specifically, Dauber oversimplifies the issue of whether an award of attorneys’ fees is warranted by asserting that the criteria set forth in Code of Civil Procedure section 1021.5 call for nothing more than a “legal 5 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311oe YN DA UH FF WwW DN o ff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determination.” (See Opposition, p. 4.) As detailed below, case law shows otherwise. Eligibility for fees under section 1021.5 is established when “(1) plaintiffs’ action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.”” (See Woodland Hills Residents Assn. Inc., v. City Council (1979) 23 Cal.3d 917, 935.) In this case, the application of the criteria for a fee award under section 1021.5 is a mixed question of law and fact. (See, e.g., Roybal v. Governing Board of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.) In any event, Dauber must prove facts that show she is entitled to relief under these criteria. (See Ciani v. San Diego Tr. & Sav. Bank (1994) 25 Cal.App.4th 563, 571 [Whether the applicant has proved each of these criteria is a matter primarily vested in the trial court.”].) Here, Petitioner disputes Dauber’s eligibility under section 1021.5, which raises factual issues. Specifically, whether Dauber’s participation in this action caused a benefit, “is a factual question for the trial judge [citation], whose determination will not be disturbed if supported by substantial evidence.” (See id. at 577 [emphasis added].) Similarly, “[t]he significance of the benefit conferred is determined from a realistic assessment of all the relevant surrounding circumstances. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 690 [emphasis added]; see also Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 967-68 [considering the chronology of events in the context of the catalyst theory].) Here, Petitioner’s deposition notice and related requests for documents seek to discover information regarding the chronology of events that led up to, and during, this action. Facts related to the chronology leading up to this action, and the alleged benefit conferred, are directly relevant to Dauber’s fee motion. B. The Factual Disputes Warrant Discovery. As to the “necessity and financial burden of private enforcement,” courts have observed that this “requirement really examines two issues: whether private enforcement was necessary 6 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311A oOo wm IND 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.” (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214-15 [internal quotations and citations omitted].) The analysis of “necessity” of private enforcement “looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary. [Citations.]” (/d. at 1215 [citing Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1348].) An “award of attorney fees is not appropriate when the public rights in question were adequately vindicated by governmental action.” (Whitley, supra, 50 Cal.4th at 1215; see also, e.g., Ciani, supra, 25 Cal.App.4th at 567, 573 [denying fees under section 1021.5 because lawsuit was “unnecessary,” in light of the action by the government].) In evaluating the element of financial burden, “the inquiry before the trial court ... [is] whether there were ‘insufficient financial incentives to justify the litigation in economic terms.”” (Summit Media LLC vy. City of Los Angeles (2015) 240 Cal.App.4th 171, 193 [quoting Whitley, supra, 50 Cal.4th at 1211].) The cost of the claimant’s legal victory must transcend his or her personal interest, “that is, when the necessity of pursuing the lawsuit placed a burden on the plaintiff out of proportion to his individual stake in the matter.” (Whitley, supra, 50 Cal.4th at 1215 [quoting Woodland Hills, supra, 23 Cal.3d at 941] [internal citations and quotations omitted].) If the plaintiff had a “personal financial stake” in the litigation “sufficient to warrant [the] decision to incur significant attorney fees and costs” in the lawsuit, an award under section 1021.5 is inappropriate. (Summit Media, supra, 240 Cal.App.4th at 193-94.) The purpose of section 1021.5 is to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit. (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1329.) “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (/bid.) To that end, courts have allowed a party challenging a claimant’s “financial burden,” to engage in discovery and introduce evidence on these matters. (See Woodland Hills, supra, 23 Cal.3d at 941-42 [ordering that on remand, the parties be permitted to introduce evidence on the 7 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311Cm NN DH BF WN NN NY NY NY NNN Yee wee wee we ewe eB oD DW BF BH |= SOD eH I DH BF BH SF So whether the underlying suit transcended claimant’s personal interests, and whether the litigation placed a disproportionate burden on claimant]; see also, e.g., Millview County Water District v. State Water Resources Control Board (2016) 4 Cal.App.5th 759, 769-70 [evaluating Millview’s financial incentives, the value of Millview’s potential financial gains and obligations].) Dauber argues the elements of section 1021.5 must be determined based on the record already before the Court, and cites as an example, Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 8 (“Police Protective League”). (See Opposition, p. 4.) Dauber further argues that this Court is not required to make factual findings based on conflicting testimony for live witnesses of varying credibility because whether the action enforced an important right is a question of law. (See ibid.) Dauber’s reliance on this case is misguided. First, the court in Police Protective League addressed issues related to the scope of review on appeal of an award of attorneys’ fees under section 1021.5. (See Police Protective League, supra, 188 Cal.App.3d. at 7.) Second, while the court held that the appellate court is just as capable to decide the “enforcement of an important right” element and the “significant benefit” element of section 1021.5, it also stated that “[w]Jhere a trial court acquires the necessary available evidence and uses valid methodology to arrive at the required estimates, its conclusions about the third and fourth elements of the 1021.5 test will merit deference by the appellate courts,” (Jd. at 11 [emphasis added].)' As noted above, the issues raised by Dauber’s fee motion present mixed questions of law and fact. (See Roybal, supra, 159 Cal.App.4th at 1148.) Therefore, Dauber’s contention that “[t]here is simply no information or testimony that [she] could conceivably provide in her deposition that would be relevant to this issue or that would assist the court in determining whether section 1021.5’s criteria have or have not been met in this case[]” is wrong. (See Opposition, p. 4.) Dauber’s own declaration submitted in support of her fee request asserts she has personal knowledge of facts relevant to her request. (See Declaration ! The court in Police Protective League identified the “necessity and financial burden of private enforcement” as the third element; the court also identified a fourth requirement, that “fees should not in the interest of justice be paid out of recovery, if any.” (See Police Protective League, supra, 188 Cal.App.3d at 6 [quoting Code Civ. Proc., § 1021.5].) 8 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No, 1-17-CV-314311oc Om IND 10 ir 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Michele Dauber, § 1, attached as Exh. A to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed on July 13, 2018.) Dauber further claims: “if called upon to do so, [she] could and would testify competently thereto.” ([bid.) Here, Petitioner is entitled to obtain discovery regarding the subject matter of Dauber’s fee motion. Specifically, Petitioner is entitled to seek information that may be admissible or appears reasonably calculated to lead to the discovery of admissible evidence related to the elements of section 1021.5. Information that can refute Dauber’s claims of “necessity” and “financial burden” is essential to this inquiry. Dauber’s testimony would shed light on these factual issues. The broad and permissive principles of discovery and the factual issues raised by Dauber warrant discovery. Il. It is Not “Burdensome” to Require a Litigant Claiming Fees to Attend a Deposition. Dauber asserts her deposition should not be allowed, because she, “a professor at Stanford Law School,” and her Los Angeles counsel, would have to “take substantial time out of their schedules in order to travel to San Jose to sit for any deposition.” (See Opposition, pp. 7-8.) Although there is nothing unusual about noticing a deposition in a fee proceeding, or recording it by audio-visual means, Dauber insists “the entire deposition itself is a charade, designed primarily to harass Dauber and to question her about the recall campaign, not the fee motion.” (See Opposition, p. 9.) Dauber fails to show these “burdens” warrant any limit on the usual discovery methods. A. The Deposition Notice Is Proper under the Code of Civil Procedure. Dauber’s objection that the location of the deposition is burdensome has no merit. At the option of the deposing party, a party’s deposition may be noticed at any location within 75 miles of the party’s residence, or, if the deposition takes place in the county where the action is pending, within 150 miles of the party’s residence. (See Code Civ. Proc., § 2025.250, subd. (a).) The Code does not restrict the location of a party’s deposition based on the residency of a party’s counsel. (See id., §§ 2025.250, 2025.260.) Here, by her own account, Dauber made the decision to hire counsel based in Los Angeles. (See Declaration of Michele Dauber, {J 3-5, attached as 9 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311Cc Oem IY DW BRB WY RV NY NY NY YN NY NY KN HB Be Be Bee Be ewe we eH ed DA A RB NH =F SO we IR DH BF BY Exh.’A to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed on July 13, 2018.) This choice does not entitle her to refuse to attend because the deposition was noticed for San Jose. Neither Dauber’s status as a Stanford Law Professor nor her counsel’s Los Angeles location warrant relieving her of the obligation to respond to discovery, just like any other party. (See Code Civ. Proc., § 2025.250; cf. Snyder v. Superior Court (Snyder) (1970) 9 Cal.App.3d 579, 586 [plaintiffs only recourse to prevent out-of-state deposition was to move for a protective order, which plaintiff failed to do], superseded by statute on other grounds.) B. There Is No Heightened Good Cause Requirement to Depose a Party. Citing Riverside Sheriff's Association v. County of Riverside (2007) 152 Cal.App.4th 414, Dauber claims that if “extremely good cause” must be shown to depose an attorney whose fees are at issue, then “extremely good cause” also must be shown to depose a party in a fee proceeding. (See Opposition, p. 7.) This reasoning is faulty. Depositions of opposing counsel are “presumptively improper, severely restricted, and require ‘extremely good cause.”” (See Carehouse Convalescent Hosp. v. Superior Court (Sims) (2006) 143 Cal.App.4th 1558, 1562.) As noted in Carehouse, strong policy reasons support the “extremely good cause” requirement for attorney depositions. It is difficult to serve as both witness and advocate; such depositions carry a particular risk that one side will gain an unfair advantage from the other’s work product, and increase the likelihood that the attorney will be called as a trial witness; and such depositions increase the likelihood of disputes over what is and isn’t protected work product, potentially causing pre-trial delays. (See id. at 1562-63.) Such concerns are not present here. Dauber will not have to serve as both witness and advocate. There is no upcoming trial at which anyone will be called as a witness. The contents of legal invoices are privileged “only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose.” (See Los Angeles County Bd. of Supervisors v. Superior Court (ACLU of Southern Cal.) (2016) 2 Cal.Sth 282, 300 [holding privilege applies to invoices that reflect work in active and ongoing litigation].) The rationale underlying Carehouse and Riverside Sheriff's Association does not apply to depositions of the litigants themselves. 10 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311zB 0 oO NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The other authorities cited by Dauber do not support her position. Jn re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation (1st Cir. 1995) 56 F.3d 295 is a federal case that did not rule on California discovery procedures. Moreover, Petitioner here seeks a single deposition, hardly the “litigation of mammoth proportions” described in In re Thirteen Appeals. (See ibid.) Serrano v. Unruh (1982) 32 Cal.3d 621 (“Serrano IV’) also does not aid Dauber. Serrano IV held it was not error to deny discovery of public interest lawyers’ salaries (see id. at 641-42), but Petitioner is not seeking discovery about the salaries of Dauber’s counsel. Again, a single deposition does not raise the concerns articulated in Serrano IV. None of these cases supports application of a heightened good cause standard here. C. Dauber Fails to Show Any Purported Burden Outweighs the Right to Discovery. A party seeking a protective order must show good cause for relief. (See Code Civ. Proc., § 2025.420; Emerson Elec. Co. v. Superior Court (Grayson) (1997) 16 Cal.4th 1101, 1110.) Here, Dauber failed to seek a protective order, and in addition, fails to show good cause to deny a deposition. Dauber points first to a newspaper article, which she claims shows Petitioner’s counsel’s intent to harass. (See Opposition, p. 8.) Petitioner’s counsel is quoted as stating the right of recall was never in question (notwithstanding his opposition to this particular recall), and stating his intent to question everything about the fees, “whether her attorneys had been paid, ‘what the invoices were, what the payments were, where they got the money.’” (See Exh. A to Declaration of Fredric Woocher in Support of Dauber’s Opposition to Motion to Compel, filed on August 3, 2018.) While hyperbolic, these comments are nonetheless related to the attorneys’ fees at issue and whether or not Dauber’s participation in this lawsuit conferred a benefit under section 1021.5. They do not indicate any intent to ask questions that are unrelated to the issues Dauber herself raised by seeking fees. Dauber also points to the document requests attached to the deposition notice as evidence of burden, complaining that they seek information predating the lawsuit. As set forth above, the entire chain of events leading up to and during the lawsuit is relevant to whether or not Dauber’s ul REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No, 1-17-CV-314311BR WN 0 Oo IN DW 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 participation conferred a benefit, whether it was necessary, and whether she and the recall proponents received a pecuniary benefit that outweighed the financial burden. In her fee motion, Dauber argued: On March 26, 2018, the Sixth District Court of Appeal unanimously affirmed this Court’s denial of Petitioner’s writ petition in a 20-page published opinion that fully analyzed and soundly rejected each of Petitioner’s legal arguments. As a result, the election on Petitioner’s recall went forward as scheduled on June 5, 2018, and Santa Clara residents voted by almost a two-to-one margin to recall Petitioner from office. (See Memorandum of Points and Authorities in Support of Dauber’s Motion for Attorneys’ Fees on Appeal, at 7:14-18, attached as Exh. A to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed on July 13, 2018.) It is not reasonable for Dauber to now argue that questions about the recall campaign itself are off limits. Further, even if it were reasonable for Dauber to presume what questions will be asked based on a handful of document requests — and it is not — the document requests seek communications about this action, the events underlying this action, and how much everything cost, all of which is relevant in a fee proceeding. (See Exh. B to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed on July 13, 2018.) Dauber also complains that Petitioner’s counsel would not identify the subject matter of the deposition except to say it was standard practice to seek such discovery, but this argument fails to acknowledge the fact-based nature of the elements Dauber must prove in order to recover fees. As discussed in the meet and confer call, and confirmed in the meet and confer correspondence, Petitioner’s counsel made clear that discovery was warranted on these elements. (See Exh. C to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed on July 13, 2018 [email dated June 26, 2018, at 1:00 p.m.].) There is no requirement that Petitioner’s counsel provide more specific information about the topics to be covered. Finally, Dauber’s claim that she offered to cooperate rings hollow. In reality, Dauber unilaterally refused to appear for any deposition, despite acknowledging that depositions are allowed in fee proceedings. There is no reason why Dauber should be exempt from any generally applicable discovery method. Having chosen to participate as a party, and having 12 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311SOD mem ND Hh BF WBN NN NY NY NY NN KN NY He Bee we we we Be me Re eC IY DAH FF BY |= SOD we NI DW BR BN | chosen to claim fees on the ground that she is a “successful party,” Dauber may not pick and choose which rules to follow. Ill. There Is No Reason to Delay a Decision on Petitioner’s Motion to Compel. Dauber suggests as an alternative that the Court deny Petitioner’s motion without prejudice until after Petitioner files his opposition to her fee motion. (See Opposition, pp. 10- 11.) This suggestion would not make the proceedings more efficient, and it undermines Dauber’s own argument that no deposition should be allowed because fee proceedings are supposed to be “summary and relatively straightforward.” The only goal Dauber’s suggestion would achieve is giving her a more specific preview of the topics to be covered at the deposition. Again, there is no heightened good cause requirement, and proceeding in this manner would needlessly deprive Petitioner of the benefits of a deposition — the “most effective form of examination,” and “best way of evaluating a witness’ credibility and demeanor[.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) § 8:393, p. 8D-9.) The Court should decline Dauber’s suggestion and instead order her to appear for deposition within ten (10) days of the hearing on Petitioner’s Motion to Compel. The hearing on Dauber’s fee motion should be reset so as to allow Petitioner the opportunity to use the deposition transcript to oppose the motion. CONCLUSION Dauber’s refusal to appear for deposition is unjustified. Petitioner’s motion to compel Dauber’s deposition should be granted. DATED: August 10, 2018 McMANIS FAULKNER Lf Ltt JAMES Mc! IS Attorneys for Petitioner, AARON PERSKY 13 REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311