ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al.

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Protective Order in Department 54

Tentative Ruling

Plaintiff ATI Restoration, LLC’s (“Plaintiff” or “ATI”) motion for protective order against Defendants Pedro Hernandez, Radford Johnson, and Dry Creek Constr (collectively, “Defendants”) regarding the deposition of ATI’s person most knowledgeable (“PMK”) is ruled upon as follows. ATI seeks a protective order staying the PMK deposition until after the parties have completed written discovery and requiring Defendants to substantially narrow the areas of inquiry set forth in the PMK notice, including elimination of any topics relating to trade secrets. (Memo of Ps & As, 2:16-19.)

Legal Standard

A party may move for a protective order related to a deposition before, during, or after the deposition. (Code Civ. Proc. § 2025.420(a).) “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.” (Code Civ. Proc. § 2025.420(b).) “The burden is on the party seeking the protective order to show good cause” for the order sought. (Fairmont Ins.

Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d 807, 819].) To establish good cause, the moving party must provide “a factual exposition of a reasonable ground for the sought order.” (Goodman Citizens Life and Casualty Insurance Company, supra, 253 Cal.App.2d at p. 819.) “‘Oppression’ means the ultimate effect of the burden of responding to the discovery is ‘incommensurate with the result sought.’ [Citation.]

In considering whether the discovery is unduly burdensome or expensive, the court takes into account ‘the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.’ [Citation.]” (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.)

Analysis

ATI argues, “The PMK deposition was unilaterally scheduled by Defendants, who have been advised that Plaintiff is not able to appear on that date and time. Further, the PMK Notice includes two hundred and thirty-three (233) topics and sixty-five (65) document requests, many of which do not relate to any cause of action or conceivable defense in this matter. Specifically, approximately seventy-five (75) categories and fifty (50) document requests set forth in the PMK Notice relate to trade secrets, but Plaintiff has not advanced any claim for misappropriation of trade secrets.” (Memo of Ps & As, 2:5-10; [Emphasis in original].) ATI fails to present the Court with evidence to support this argument. It submits the declaration of counsel, who simply states, “On October 3, 2024, Defendants’ counsel Mr. Gary Gorski

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Protective Order in Department 54

submitted a letter to Plaintiff purporting to clarify Defendants’ position regarding the PMK deposition and discovery. See October 3, 2024 Letter from G. Gorski, attached hereto as Exhibit A.” (Decl. Freeman, ¶ 2.) Plaintiff does not attach the deposition notice nor include in the declaration or memorandum the content of the categories or documents requested in the deposition notice. While the declaration of defense counsel includes the deposition notice at issue (Decl. Gorski, Exhibit 6), this does not cure Plaintiff’s deficient moving papers.

Moreover, Plaintiff has not set forth convincing legal argument nor supportive case law in favor of its request to postpone the deposition at issue until after the parties have completed written discovery. In addition, the Court is not convinced by Plaintiff’s argument that Defendants are not entitled to discovery regarding trade secrets simply because Plaintiff’s complaint does not include a cause of action for trade secret infringement. As pointed out by Defendants, “Plaintiff’s demand to eliminate topics related to trade secrets is untenable and contradicts its own pleadings, where trade secrets are referenced over 60 times, beginning in paragraph 31 and continuing through paragraph 73.

Paragraph 31 specifically outlines ATI's substantial resources devoted to protecting its trade secrets and the damages associated with their misappropriation.” (Opposition, 7:21-26.) On reply, Plaintiff argues that “it is eminently reasonable for the Court to order that any of Plaintiff’s confidential and proprietary commercial information be for Defendant’s attorney’s eyes only, and that any filing containing Plaintiff’s confidential and proprietary commercial information be filed under seal, including transcripts or excerpts of transcripts and exhibits from the deposition of ATI’s PMK.” (Reply, 4:15-18) This argument was not contained in Plaintiff’s moving papers, and cannot be raised for the first time on reply.

As this particular form of relief was not sought in the motion, the Court will not consider the belated request made on reply. Points raised for the first time in a reply brief are not considered by the court. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Plaintiff has not established good cause for the relief requested. Specifically, Plaintiff has not shown that a protective order is necessary to protect Plaintiff from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ.

Proc. §2025.420(b).) Plaintiff’s motion for protective order is DENIED in its entirety.

Defendant Dry Creek’s request for sanction is DENIED, as Plaintiff’s motion was filed with substantial justification.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Protective Order in Department 54

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Protective Order in Department 54

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.