Defendant's Motion for Protective Order
Case No.: PCU324051 Date: May 26, 2026 Time: 8:30 A.M. Dept. 19-The Honorable Russell P. Burke Motion: Defendant's Motion for Protective Order Tentative Ruling: To deny the motion
Facts
In this class action matter, Plaintiff alleges a number of Labor Code and Business and Professions Code violations. On April 29, 2026, Defendant filed this motion for protective order seeking discovery sequencing. On September 12, 2025, Plaintiff served, via email, the first set of Special Interrogatories and Requests for Production of Documents. Defendant notes on September 18, 2025, Defendant served discovery in this case, including a notice of deposition of Plaintiff. Plaintiff served an Objection to Defendant's initial deposition notice. The parties then appear to have engaged in meet and confer discussions related to a Belaire-West notice process.
Defendant's counsel states that "Plaintiff only worked for Defendant at single location, in a single position, for a short amount of time. As such, Defendant needs to take Plaintiff's deposition to confirm his sworn testimony as it pertains his purported work experience, and then Defendant can reasonably meet and confer with Plaintiff's counsel on a proper scope for any proposed Belaire-West notice." Defendant states that Plaintiff has not been deposed, despite two deposition notices. However, the Court notes no pending motion to compel the deposition of Plaintiff.
Defendant seeks to sequence discovery through compelling Plaintiff's deposition prior to engaging in further discovery, issuance of a Belaire-West notice, and for a protective order regarding the compelling of further responses. The protective order request, however, appears moot at this time, as the Court ruled on motions to compel further responses to this discovery on May 7, 2026 and ordered that further responses be provided. In opposition, Plaintiff argues that the Court's prior ruling has indicated that sequencing of discovery, under these facts, is not appropriate and that, as to the instant motion, Defendant has not demonstrated good cause as to sequencing discovery.
Authority and Analysis
Code of Civil Procedure Sec. 2019.020, entitled "Sequence and Timing of Discovery," provides as follows: (a) Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party. (b) Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.
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As to good cause, Defendant states: "...it is Plaintiff that must establish that, as a class representative, his claims are typical of the class. This is also Plaintiff's burden to prove - not Defendant's burden. (See Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) Further, Plaintiff cannot act as a class representative for purported violations he did not suffer himself. (Stephens v. Montgomery Ward (1987) 193 Cal.App.3d 411, 422, quoting East Tex. Motor Freight Sys. v. Rodriguez (1977) 431 U.S. 395, 403["[A] class representative 'must be part of the class and possess the same interest and suffer the same injury as the class members."]).
These are additional reasons Defendant needs to depose Plaintiff, to obtain Plaintiff's sworn testimony as to his own employment experience to determine the level of veracity of his (unverified) civil complaint and a reasonable Belaire-West Notice scope."
However, the scope of discovery is broad and is construed liberally in favor of disclosure. (Code Civ. Proc., Sec. 2017.010; Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) There is "no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims." (Id. at. 550.) Further, class-wide discovery is allowed prior to certification: "Each party ... must have an opportunity to conduct discovery on class action issues before filing documents to support or oppose a class action certification motion ... so the trial court can realistically determine if common questions are sufficiently pervasive to permit adjudication in a class action." (Stern v.
Superior Court (2003) 105 Cal.App.4th 223, 232-233.) The court in Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244 noted, "Due process requires an order with such significant impact on the viability of a case not be made without a full opportunity to brief the issues and present evidence...In addition, each party should have an opportunity to conduct discovery on class action issues before its documents in support of or in opposition to the motion must be filed." (See also Bartold v. Glendale Fed.
Bank (2000) 81 Cal. App. 4th 816, 836 [plaintiffs are entitled to discovery necessary to support a motion for class certification].)
"Standing is typically treated as a threshold issue, in that without it no justiciable controversy exists. 'As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury ... .' (Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1111.)
Paragraph 15 of the complaint alleges, sufficiently, "Plaintiff and the Class received non-discretionary bonuses, shift differentials, and other remuneration. However, Defendants failed to incorporate all remuneration when calculating the correct overtime rate of pay, break premium rate of pay, and sick day rate of pay, leading to underpayment." (Complaint P.15.) The alleged class is "hourly, non-exempt employee at any time during the period beginning four years before the filing of the initial complaint in this action..."
Moreover, the Court reasonably interprets this allegation that Plaintiff claims eligibility for a bonus. Therefore, even if no bonus was paid to Plaintiff, and as Defendant states Plaintiff was never entitled to a bonus, some discovery as to whether Plaintiff should have received a bonus appears proper. The Court does not appear faced with a situation where Plaintiff, for example, was never an employee of Defendant or was exempt. As such, the Court does not find good cause to sequence discovery in this matter.
As to the compelling of Plaintiff's deposition, the Court notes, as it did above, no motion to compel is pending. Further, Code of Civil Procedure section 2025.450 states: "(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." "(b)(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance." (emphasis added)
However, a motion to compel a deposition must be accompanied "by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance." (Code Civ. Proc. Sec. 2025.450, subd. (b)(2).) No traditional meet and confer was required by law. As Rutter notes, "No 'meet and confer' is required where the deponent 'fails to attend the deposition ....' In such cases, all that is required is a declaration by the moving party that he or she has contacted the deponent 'to inquire about the nonappearance.'" (Weil & Brown, California Practice Guide: Civil Procedure Before Trial [The Rutter Group 2023], P. 8:813 [quoting Code Civ. Proc., Sec. 2025.450, subd. (b)(2)].)
No motion to compel here lies where the deponent or counsel merely states they will not attend the deposition and where no notice of nonappearance is placed on the record via transcript or declaration. Serving an objection based on unavailability or unilateral setting does not impose a stay on a notice of deposition and is not a substitute for a protective order. (Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 586 [applying former Code Civ. Proc. Sec. 2021]; Carl v. Superior Court (2007) 157 Cal.App.4th 73,76.) Here, no deposition and nonappearance took place based on the record before the Court. Therefore there is presently no basis to compel the deposition of the Plaintiff based on Defendant's failure to attend the properly noticed deposition, record the nonappearance of Plaintiff and move to compel Plaintiff's deposition. Therefore, the Court denies the motion.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.