NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Stanislaus County. Rubén A. Villalobos, Judge.

Siena Kautz, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.

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In this juvenile dependency case, the juvenile court found 12-year-old A.O.[1] came within its jurisdiction under Welfare and Institutions Code section 300[2] because of risk of harm due to conduct by both his parents and removed him from his parents’ custody pursuant to section 361, subdivision (c). Crystal D. (mother), the noncustodial parent at the time of removal, appeals the juvenile court’s jurisdictional and dispositional findings and orders. Mother contends the allegations of her conduct in the jurisdictional findings were not supported by sufficient evidence. She also contends the court erred by “removing” A.O. from her custody under section 361, subdivision (c) because she was a noncustodial parent, and the matter must be remanded for a hearing on whether A.O. should be placed with her pursuant to section 361.2, subdivision (a), the statute governing placement with noncustodial parents. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petition and Detention

In January 2020, the Stanislaus County Community Services Agency (agency) received a referral from a mandated reporting party that A.O. was “running around in the airport district in Modesto” without appropriate supervision and was living with a woman who had housing that did not legally allow anyone to reside with her. The emergency response social worker learned A.O. was not enrolled in school.

The agency had received referrals in October 2019 regarding A.O., which were “evaluated out.” (Boldface & capitalization omitted.) In one of the referrals, a mandated reporting party reported that A.O.’s school was having trouble getting a hold of A.O.’s father. They observed cuts on A.O.’s arm, which appeared to be self-inflicted. The mandated reporting party was also concerned A.O. was at risk of sexual abuse or trafficking because he had asked the school secretary about masturbation and semen. In another referral from October, a mandated reporting party reported they were concerned about possible commercial sexual exploitation of A.O. because A.O. had said things like he has to “ ‘go to work’ ” in a sexual way, had spoken about sexually inappropriate things not typical for children his age, and had been sexually inappropriate with other children at school.

The emergency response social worker contacted A.O.’s father, Edward O. (father), who informed her that he was living under a bridge, and he did not want A.O. to stay with him because it was unsafe and he had been having a rough time. Father reported A.O. had been expelled from school and had not attended since November 2019. Father advised father had been diagnosed with bipolar disorder but was not on medication. Father reported father had a lengthy history of drug use and had been using heroin and methamphetamine. Father completed a voluntary drug test and tested positive for amphetamines, methamphetamine, “MDMA,” opiates, and fentanyl.

A records check on February 4, 2020, revealed that mother had 17 child welfare referrals from 2014 through 2019 from Sacramento County, Placer County, and Stanislaus County. The allegations included physical abuse, sexual abuse, and general neglect.

On February 5, 2020, the social worker spoke to A.O., who reported he had been staying with friends since Christmas and felt safe where he was staying. A.O. reported he did not feel safe with mother. A.O. denied being “touch[ed]” by anyone except by mother “a long time ago.”

The woman with whom A.O. was staying reported being open to filing for guardianship, but it was later discovered she would not be able to because her housing would not allow A.O. to live with her. On February 20, 2020, father signed a protective custody waiver, and A.O. was placed in a foster home.

On February 24, 2020, the agency filed a petition under section 300 on behalf of A.O. alleging he came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional abuse), and (d) (sexual abuse). The section 300, subdivision (b) allegations pertaining to mother included previous reports that (1) mother had sexually abused A.O. and A.O.’s sibling, J.B.; (2) mother had hit her children, used drugs, and engaged in domestic violence; and (3) mother had displayed sexualized behaviors around her children. The section 300, subdivision (c) allegations were that A.O. was suffering, or was at substantial risk of suffering, serious emotional damage as a result of mother’s conduct and because A.O. had no parent or guardian capable of providing appropriate care, evidenced by A.O. displaying inappropriate sexualized behaviors at school and “hanging around” gang members. The section 300, subdivision (d) allegation was based on the previous reports that mother had sexually abused A.O. and his sibling, J.B.

The social worker contacted mother and notified her of the initial court date. Mother reported she would be there and would do anything for A.O. Mother asked the social worker why she could not have A.O. in her care, and the social worker responded it was because there were sexual abuse allegations that she molested A.O. and A.O.’s sibling. Mother reported the allegations were fabricated and that she would be present at the hearing.

At the detention hearing on February 25, 2020, A.O.’s care providers requested to speak to the social worker privately and shared with the social worker that when A.O. saw his father, he ran to him to give him a hug. When A.O. saw mother, mother approached him and hugged him, and said, “ ‘[y]ou know I didn’t do those things.’ ” A.O. appeared to do well when talking with father but appeared to get agitated when mother started talking about the past, which made A.O. feel uncomfortable. The care providers informed the social worker that A.O. had opened up and shared a lot with them about his past. They said A.O. had shared with them that he did not want to be left alone with mother.

At the detention hearing, the court appointed counsel for mother and father. A.O. said he would like to visit with both parents. The court ordered supervised visits between A.O. and mother and monitored visits between A.O. and father. The court ordered A.O. detained from the parents.

The Jurisdiction/Disposition Report and Attachments

To support the jurisdictional allegations, the agency attached to its report multiple emergency response referrals, police reports, and delivered services logs, which we summarize below.

A May 2014 emergency response referral indicated the Sacramento County Child Protective Services department (Sacramento department) received a referral alleging physical abuse and general neglect. It was reported then 14-year-old J.B. had a “deep gash” on his forehead, which he reported to a school employee he had received from mother slamming his head against a wall. It was reported that after J.B. received the injury, mother did not seek medical attention for him and told him “ ‘[y]ou did that to yourself.’ ” J.B. also had deep scratches on his back, left shoulder, and neck, which J.B. said happened when mother “ ‘clawed’ him.” J.B. further reported mother threw a “vacuum part” at him. J.B. stated mother hit then six-year-old A.O. on his back and bottom with a hairbrush and left a bruise on A.O.’s back. J.B. reported mother keeps “THC” and “some white substance” in a grey bag. The referral was “evaluate[d] out.” (Capitalization omitted.)

A Sacramento County sheriff’s deputy was dispatched to investigate the incident. The police report indicated mother reported to the deputy that J.B. had pushed her during an argument; the next day, he was acting up again and she punished him by making him stand in a corner. She explained she tried to grab his head to turn him around, and he pulled his head away and injured himself by hitting his head against the wall. J.B. admitted to the deputy he pushed mother but that he received his injury by mother pushing his head into the wall. A.O. was six years old at the time and told the deputy he witnessed both incidents. A.O. reported J.B. pushed mother and that mother was trying to pull J.B.’s head from the corner of the room when J.B. pulled away and hit himself on the corner, causing his injury.

In emergency response referrals from Sacramento department dated March 2015, and Placer County Family Children’s Services dated September 2014, allegations of emotional abuse and neglect of A.O.’s other sibling, then 13-year-old A.B., was described as follows: Mother had given temporary custody of A.B. to A.B.’s friend’s parents. The referrals alleged that A.B.’s guardians brought him to counseling, and he had since disclosed multiple incidents of abuse by mother. A.B. reported to his guardians that mother would slap, punch, and speak to him in a derogatory manner. The referrals alleged the probate court granted mother unsupervised visits with A.B., but A.B. was scared of visiting with his mother because of the past abuse. The Sacramento department referral was “evaluate[d] out.” (Capitalization omitted.) No action was taken on the Placer County referral as it was designated as a “secondary report.” (Capitalization omitted.)

An August 2015 emergency response referral indicated the Sacramento department received a referral from a mandated reporting party, who reported that during a normal counseling session, father and A.O.’s then stepmother (stepmother) stated that mother used to “severely emotionally [and] physically abuse” A.O. by pulling his hair, hitting him, and cussing at him. The mandated reporting party was told the most recent abuse incident happened about a year prior, at which point A.O. started living with father and stepmother. Other incidents were reported including father witnessing mother punching J.B. in the face until he bled; mother walking around the house in front of the children naked or in “a thong”; mother taking a bath with then 10- or 12-year-old A.B.; and mother having J.B. pass things to her while she was in the shower when he was 15 years old or younger. Father reported he caught J.B. trying to “ ‘bang’ (sexually)” A.B. when he was naked. The mandated reporting party also reported that A.O. had said he did not feel safe around mother. Father and stepmother gave the mandated reporting party a video that J.B. made on his phone that depicted mother cussing and yelling at A.O., pulling A.O.’s hair, and A.O. looking frightened. The video was about a year old at the time. J.B. lived with his paternal grandmother, and A.O. resided with father and stepmother. The referral was “evaluate[d] out.” (Capitalization omitted.)

An April 2016 police report indicated a Sacramento County Sheriff’s deputy was dispatched to A.O.’s home due to sexual abuse allegations against mother. A.O.’s stepmother reported A.O. and J.B. had been molested by mother, but J.B. was not present to be interviewed by the deputy. A.O. spoke to the deputy and reported he was five or six years old when mother touched his vagina and anus once when he was in his bedroom naked.[3] A.O. said mother kept her hands on his bare skin for about 30 seconds but she could have been trying to clean him as it happened at a time when mother thought there was lice in the house. A.O. said mother may have had a baby wipe in her hand when she was touching him. A.O. reported mother had only slapped his shoulder once and has never hit him since. A.O. stated father had seen mother slap J.B. in the face.

An April 2016 cross-report by the Sacramento department contained more information provided by stepmother. Stepmother reported that A.O. left mother’s home and began living with father in 2014. A.O. displayed sexual behaviors, and began counseling in 2015 to address them. In early April 2016, father had allowed A.O. to spend the weekend with mother, and when A.O. returned home, he acted “ ‘dead, lost’ ” with no emotions. A.O. began “having nightmares and fecal accidents.” Stepmother told A.O. that if something happened to him, he should report it. A.O. then shared with stepmother that he was “ ‘inappropriately touched’ ” by mother on his “ ‘front’ ” and “ ‘bottom,’ ” referring to his “private parts.” This abuse occurred when he lived with mother and father from 2012 through 2014. A.O. reported it would happen when father worked at night and he and mother shared the same bed. A.O. told stepmother the sexual abuse was not still occurring but he “began remembering” the abuse. Stepmother stated she and father called J.B. to ask if anything happened to him, and J.B. said mother “ ‘molested’ ” him from when he was five years old until 2014. Father reported that J.B. said mother had “ ‘strok[ed] and touch[ed] him’ ” and that she possibly had sexual intercourse and oral sex with him. J.B. then started crying and ended the phone call. Stepmother reported that father was filing for a restraining order and custody of A.O.

An agency delivered service log indicated that on April 16, 2016, the agency received a call from an employee at A.O.’s school, who reported A.O. disclosed to the school employee that when A.O. was five years old, mother touched A.O.’s vagina and buttocks area.

On April 20, 2016, A.O.’s counselor called the agency to report that A.O. and A.O.’s stepmother reported mother sexually abused A.O. in 2014 by putting a “ ‘squishy object’ ” in his “ ‘front and bottom’ private areas.” Stepmother clarified to the counselor this was his vagina and anus. A.O.’s counselor reported A.O. had been attending weekly therapy and had been diagnosed with “disruptive behavior disorder.”

In May 2016, an investigating social worker with the agency spoke with then eight-year-old A.O. alone. The social worker asked A.O. if anything inappropriate happened and A.O. said no. The social worker asked again, and A.O. said that his stepmother wanted him to tell the social worker that mother touched him in a bad way in the “front” and “back” and “when [he] went potty.” A.O. then said he felt mother put something in him; he told mother to stop, and she did. A.O. said it happened when he was five or six years old and nothing had happened since. The social worker observed that A.O. only said something had happened when stepmother was in “eye shot” of A.O.

Stepmother reported to the social worker that after A.O.’s last visit with mother, he started displaying sexual behaviors such as pinning down stepmother’s son and trying to kiss him, laying in bed with stepmother and trying to touch her buttocks and breast area, and trying to touch father’s buttocks. Father reported to the social worker that stepmother was the person who told him about the allegations and he just did not believe something like that happened. Father called mother to ask her about it and mother responded that “the child is into Mexican Haunting.” Father said he did not understand what she meant.

On June 7, 2016, father spoke with an agency social worker and requested the agency’s findings for his custody case. The social worker informed father he could not obtain the investigation report until after the referral was closed.

On June 20, 2016, the social worker contacted mother who began sobbing. Mother said the allegations were “an absolute lie.” Mother denied ever being sexually inappropriate with A.O. and said she would never insert anything into A.O’s private area. Mother said after her last visit with A.O., she was served with a restraining order that required her to go to family court to get visits and work out legal custody.

Following the telephone contact with mother, it was reported in the agency’s delivered service logs “[t]here is discrepant information between the mother, father and child. It is unclear what had happened when the child was about 5 years old.” The conclusion of the agency’s investigation stated:

“The allegation of sexual abuse is unfounded. The referral reported there are active concerns about the mother being sexually inappropriate with the child and states that it dates back to when the child was 5 years old. The child disclosed to law enforcement that [his] mother had touched [his] private areas when [he] was about age 4 or 5 but it was not in a sexual way. The mother had done that with a baby wipe as she was looking for signs of lice as the mother suspected there was lice infestation in the home and was washing all the clothes and sheets. When [social worker] spoke with the child[,] [he] states the mother attempted to put something near and in [his] private parts that was squishy but [he] was unable to identify what the squishy thing was. The child said it happened when [he] was about 5 and nothing has ever happened again. Per speaking with the father, his girlfriend and the mother they are experiencing some issues with custody and each parent would like to have full custody of the child. At this time of this referral and investigation there are no concerns and or neglect as the child has been with the father since April and the mother has not had contact or visits. It is for the best that the mother and father deal with their custody issues at family court. The situation at this time is stabilized.”

The agency’s jurisdiction/disposition report filed on March 27, 2020, stated the restraining order protecting A.O. from mother was issued in October 2016 and expired in October 2019.

In March 2020, the social worker spoke with mother. Mother denied the sexual abuse allegations; she stated the reports were fabricated by father and stepmother and she would never abuse her children. The social worker mentioned to mother that A.O. stated mother was looking for lice in the vaginal area, and mother responded by asking why she would have done that since A.O. did not have pubic hair at that time. Mother had started parenting classes and individual counseling but refused to engage in sex offender counseling. The social worker explained to mother that she could complete an assessment and would not have to admit to the allegations. Mother was still hesitant but said she would speak with her attorney. Mother expressed a desire to participate in family counseling with A.O. because A.O. thought mother left him, but mother could not see him due to the restraining order.

When asked to provide a statement for the jurisdiction/disposition report, A.O. stated, “I would like to live with my dad if he can get his stuff together and find stable housing. If I live with my dad, I would like to have regular visits with my mother. If my father cannot get his stuff together, I would like to go live with my mom but I would also like to have regular visitation with my dad.”

Visits between mother and A.O. in March 2020 went well. Mother was appropriate, and she and A.O. appeared happy.

Under “consideration of placement with non-custodial parent” (boldface & capitalization omitted) the report indicated it would be detrimental to the health and well-being of A.O. to be placed with mother due to the past sexual and physical abuse allegations and because there was still an active restraining order protecting A.O. from mother.

In the assessment/evaluation of the jurisdiction/disposition report, the social worker stated that although mother denied sexually abusing A.O., the agency was concerned as the matter was reported to law enforcement and a restraining order was granted. The social worker indicated mother had declined to participate in a sex offender assessment despite the social worker’s recommendation to do so and advisement mother would not have to admit to the allegations. The social worker stated that A.O. reported he wanted to have a relationship with mother and enjoyed their visits. The social worker recommended that family reunification services be granted to mother.

Combined Jurisdiction/Disposition Hearing

At the combined jurisdictional/dispositional hearing held on April 2, 2020, the agency did not submit additional evidence besides its reports, and neither mother nor father cross-examined the social worker nor presented evidence. Mother’s counsel argued the agency had not met their burden of proving the allegations against mother by a preponderance of the evidence. Mother’s counsel stated the only evidence in the report of sexual misconduct was the police report from 2016. Mother’s counsel argued “we’re dealing with a four-year-old police report dealing with an eight-year-old allegation. And there’s no additional evidence to support this.” Mother’s counsel explained criminal charges were not pursued after the police report, and requested that the sexual allegations against mother be dismissed. Mother’s counsel made no argument regarding the other allegations or as to disposition.

Counsel for the agency disputed mother’s counsel’s statement that the police report was the only evidence supporting the allegations against mother. Counsel argued there was an active restraining order in place as well as consistent statements of the abuse documented in the agency’s referral notes by both A.O. and his sibling.

Mother’s counsel responded by saying, “Although we don’t refute [the restraining order] exists, it’s not before the Court and why it was issued is also not before the Court. So I think it’s too speculative to say that that was due to the sexual assault allegations when it’s not before the Court . . . .”

A.O.’s counsel submitted on the report and noted that A.O. loves mother and wants her to receive services.

The court found the allegations were true by a preponderance of the evidence that A.O. was described by section 300, subdivisions (b)(1), (c), and (d). The court found pursuant to section 361, subdivision (c): (1) there is or would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of A.O. if he were to be returned home, and there were no reasonable means by which A.O. could be protected without removing A.O. from the parents’ physical custody; and (2) that A.O., or a sibling of A.O., had been sexually abused or is deemed to be at substantial risk of being sexually abused by a parent and there were no reasonable means by which A.O. could be protected from further sexual abuse or a substantial risk of sexual abuse without removal. The court ordered both parents to receive reunification services. The court specifically noted it considered the agency’s jurisdiction/ disposition report, argument of counsel, and all attachments to the report, including log notes and police reports, in making its findings.

DISCUSSION

I. Jurisdiction

A. Discretion to Review

Mother contends the jurisdictional findings that pertained to her were not supported by substantial evidence but does not challenge the findings regarding father. Mother acknowledges “ ‘jurisdictional finding[s] good against one parent is good against both’ ” (In re X.S. (2010) 190 Cal.App.4th 1154, 1161), and that generally, an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence (In re I.A. (2011) 201 Cal.App.4th 1484, 1492). She requests, however, that we exercise discretion to review the findings as they pertain to her because a finding in a dependency hearing that a parent committed an act of sexual abuse creates a presumption of substantial risk of abuse or neglect in future proceedings under section 355.1, subdivision (d) and because the distinction between being found an “ ‘offending’ ” parent versus a “ ‘non-offending’ ” parent may have “far-reaching implications with respect to future dependency proceedings . . . and . . . parental rights.” (In re Drake M. (2012) 211 Cal.App.4th 754, 763.)

We will address mother’s claims for the impact the jurisdictional findings may have on future dependency proceedings. (See In re Drake M., supra, 211 Cal.App.4th at p. 763.)

B. Standard of Review

We review a juvenile court’s jurisdictional order for substantial evidence. (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) “ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.) The appellate court does not reweigh the evidence or exercise independent judgment, but merely determines if there are sufficient facts to support the findings of the trial court. We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find that the order is appropriate. (Ibid.)

C. Section 300, Subdivision (d)

We first turn to the juvenile court’s finding that A.O. came within its jurisdiction under section 300, subdivision (d). We conclude the finding is supported by substantial evidence.

A child may be adjudged a dependent of the court under section 300, subdivision (d), as pertinent here, if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code,[[4]] by his or her parent or guardian or a member of his or her household.” (Ibid.)

A child’s disclosures of sexual abuse is sufficient to support a jurisdictional finding under section 300, subdivision (d), despite inconsistencies. (In re D.C. (2015) 243 Cal.App.4th 41, 52, superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)

Here, the allegations under section 300, subdivision (d) were:

“d-1 There are previous reports reporting that [mother] sexually abused the minor and the minor’s siblings.

“a) On a report dated April 17, 2016, it was reported that [A.O.] reported to counselor that [A.O.] was inappropriately touched by . . . mother. That . . . mother touched the front and bottom, words used to describe genitalia. The abuse occurred when . . . mother and father resided together from 2012 to 2014 and [A.O.] slept in the bed with mother while . . . father worked at night. It was reported that . . . mother penetrated [A.O.], and [A.O.] did not know what . . . mother used to touch, but felt the bare hand on [A.O.’s] bare skin. . . . [F]ather then contacted the older child, [J.B.], and it was reported that . . . mother molested [J.B.] from the age of 5 years old until 2014. [J.B.] reported that . . . mother would stroke and touch him and possible intercourse and oral sex; however [J.B.] began to cry and got off the phone. It has been reported that an 8 year protective order was issued by the Superior Court of Sacramento for [A.O.] from . . . mother.

“b) On a referral dated, August 4, 2015 it was reported that . . . mother would walk around in a thong in front of the children and would have her sons pass her things while she was taking a shower and she was once caught taking a bath with the child [A.B.].”

Here, the juvenile court expressly relied on information contained in the reports and delivered service logs attached to the jurisdiction/disposition report. As respondent points out, an agency’s report “and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction . . . may be based.” (§ 355, subd. (b).) If a party timely objects to the hearsay evidence, “the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based,” unless the agency can show an exception applies. (Id., subd. (c).) A party to a jurisdictional hearing may also subpoena witnesses whose statements are contained in the agency’s report or introduce admissible evidence relevant to the weight of the hearsay evidence or credibility of the hearsay declarant. (Id., subd. (d).)

Here, mother did not object to any hearsay statements in the reports, did not seek to cross-examine the social worker, and did not introduce any of her own evidence. The juvenile court could properly rely on the information contained in the reports and attachments that mother had inserted an item into A.O.’s vagina and/or anus, which A.O. reported to his stepmother, his counselor, and an agency social worker; had “ ‘strok[ed] and touch[ed]’ ” in a sexual way and possibly had sexual intercourse with A.O.’s sibling, J.B.; and had exhibited sexualized behavior in the presence of and toward the children. The reports also documented A.O. having depressive and sexualized behavior after remembering being touched by mother. A.O.’s sexualized behavior continued into October 2019, raising the concern of a mandated reporter at A.O.’s school.

In addition, a restraining order was issued protecting A.O. from mother by the Sacramento County Superior Court. Though mother calls the restraining order “hypothetical” and argues there is no evidence the restraining order was issued due to the sexual abuse allegations, we find the record contains evidence from which the court could have reasonably inferred the restraining order was related to the sexual abuse allegations. Stepmother reported father had filed for the restraining order after the sexual abuse allegations came to light, and mother confirmed she was served with the paperwork shortly after the visit during which A.O. said he remembered the touching had occurred.

Finally, at the beginning of the dependency proceedings, A.O. mentioned he had been touched by mother “a long time ago.” He also reported to the social worker he did not feel safe with mother and told his care providers he did not want to be left alone with mother. Though A.O. also expressed wanting to visit mother and rebuilding a relationship with her, we do not find this desire to be mutually exclusive from his other comments or that his other comments, which are concerning, should be disregarded. This evidence taken in the aggregate supported the court’s finding by a preponderance that A.O. and his sibling, J.B., were sexually abused by mother or that A.O. was at substantial risk of being sexually abused by mother.

The evidence also supported the court’s finding that the risk existed at the time of the hearing. “Although ‘the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm’ [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court’s protection.” (In re T.V. (2013) 217 Cal.App.4th 126, 133.) “A parent’s past conduct is a good predictor of future behavior. [Citation.] ‘Facts supporting allegations that a child is one described by section 300 are cumulative.’ [Citation.] Thus, the court ‘must consider all the circumstances affecting the child, wherever they occur.’ ” (Ibid.)

We acknowledge the age of the allegations and conclude the court could have reasonably found by a preponderance of the evidence A.O. was at a substantial risk of abuse at the time of the hearing. Though the allegations were from years earlier, there was no evidence that supported the risk did not still exist. Rather, evidence supported the opposite inference; mother was legally barred from seeing A.O. because of the restraining order, which we have explained the court could have reasonably concluded was issued due to the sexual abuse allegations. Further, at the time of the hearing, mother had resisted taking a sex offender assessment even after being advised she would not need to admit to the allegations. Finally, in evaluating “substantial risk” of harm we look not only to the probability of the harm but the magnitude of harm. (In re I.J., supra, 56 Cal.4th at p. 778 [“ ‘Some risks may be substantial even if they carry a low degree of probability because the magnitude of the harm is potentially great. . . . [¶] . . . [¶] . . . Conversely, a relatively high probability that a very minor harm will occur probably does not involve a “substantial” risk. Thus, in order to determine whether a risk is substantial, the court must consider both the likelihood that harm will occur and the magnitude of potential harm . . . .’ ”].) Because the magnitude of sexual abuse is so great, and because there were past allegations with no interim contact with A.O. or engagement with services in the intervening years, we conclude there is substantial evidence of a substantial risk of abuse at the time of the hearing.

When viewed in the aggregate, there was enough evidence for the juvenile court to reasonably conclude by a preponderance of the evidence that A.O. was at substantial risk of being sexually abused by mother at the time of the hearing.

We are not persuaded by mother’s arguments otherwise. While we appreciate mother’s point that the substantial evidence standard is not “toothless” (citing In re I.C. (2018) 4 Cal.5th 869, 892), we view mother’s arguments as requests that we reweigh the evidence.

First, mother points out no criminal charges resulted from law enforcement’s investigation of the allegations, and the initial referral of sexual abuse was deemed to be unfounded by the agency. The absence of criminal charges did not preclude the juvenile court from finding A.O. was at substantial risk of sexual abuse, as criminal proceedings are not a requirement for a sustained section 300, subdivision (d) allegation. Nor was the juvenile court required to accept mother’s interpretation that the reason the referral was deemed “unfounded” by the agency was because “the social worker found the allegations to be coached and unreliable.” This was not the express reason given for the agency’s determination; rather, the conclusion stated: “At this time of this referral and investigation there are no concerns for abuse and or neglect as the child has been with the father since April and the mother has not had contact or visits. It is for the best that the mother and father deal with their custody issues at family court. The situation at this time is stabilized.” (Italics added.) The court could have reasonably concluded a primary reason the agency determined the referral was unfounded was because A.O. was not living with mother, father was seeking custody and not allowing A.O. to see mother, and, therefore, there was no need for the agency to intervene.

Mother also contends the sexual abuse allegations were orchestrated by stepmother in order to ensure a more favorable custody order for father. In support, mother points out that A.O. described the touching as hygienic when interviewed alone and only said the touching was sexual when he was either with or within sight of stepmother. We note that though A.O. told the deputy he thought the touching could have occurred in the context of mother checking him for lice, when mother was presented with this statement, she denied the touching occurred at all, asking why she would have checked A.O. for lice if he did not have pubic hair. Mother’s denial the touching occurred undermines A.O.’s estimation the touching may have been hygienic and gives rise to the inference that the touching he reported was instead for sexual purposes. We also note the court was not required to make the same inferences mother has made regarding any inconsistencies in A.O.’s statements or the effect of A.O.’s stepmother on him. While mother contends the evidence raises the inference stepmother pressured A.O. into making false statements, the court could have reasonably made another inference: that A.O. was more comfortable making more detailed statements to stepmother or when stepmother was present. While evidence may support mother’s inferences, we look only to whether the evidence reasonably supports any inferences the court made. We conclude it does. As mother made no objections to the information contained in the reports, the court was permitted not only to rely on the statements contained within them, including hearsay statements, but to determine the weight of them. As we have explained, the totality of the evidence contained in the reports constituted substantial evidence supporting the court’s findings.

For the reasons stated, we find the court made no error by sustaining the section 300, subdivision (d) allegations.

Because we find substantial evidence supports the court’s section 300, subdivision (d) finding, we decline to review mother’s claims regarding the findings under section 300, subdivisions (b)(1) and (c), as reversal of either of these findings would not have any practical effect on this or future dependency proceedings. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.”].)

II. Disposition

Mother argues the court erred by failing to consider placement with her as a noncustodial parent under section 361.2, and instead “removing” the children from her under section 361, subdivision (c). Respondent concedes the court erred by referring to the wrong statute but argues any error was harmless. We agree with respondent.

Section 361, subdivision (c) provides, in pertinent part: “A dependent child shall not be taken from the physical custody of [the] parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence,” that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.”

Section 361.2, subdivision (a) provides that if a “parent . . . with whom the child was not residing at the time that the events or conditions arose that brought the child within” the court’s jurisdiction requests custody, “the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” To comport with due process requirements, the party opposing placement has the burden to show by clear and convincing evidence the child will be harmed if the noncustodial parent is given custody. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1084.)

As it is clear from the plain language of the statutes that section 361, subdivision (c) relates to custodial parents and section 361.2 relates to noncustodial parents, and it is undisputed mother was a noncustodial parent at the time the proceedings were initiated, we conclude the court erred by referring to section 361, subdivision (c).

The issue before us, therefore, is whether the error was harmless. In similar cases, because the findings required under each statute are substantively similar, and both sets of findings require proof by clear and convincing evidence, reversal is generally not required when the juvenile court’s findings under section 361, subdivision (c) are supported by substantial evidence. (See In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303-304; accord, In re Andrew S. (2016) 2 Cal.App.5th 536, 545, fn. 5; cf. In re Abram L. (2013) 219 Cal.App.4th 452, 460-464 [finding miscarriage of justice where court made § 361 finding as to custodial mother, but not noncustodial father, and “[n]othing in the record” indicated the court considered the requirements of § 361.2].) Mother argues both that the dispositional findings were not supported by substantial evidence and that the court prejudicially erred by failing to “state the facts on which the decision to remove the minor is based” (§ 361, subd. (e)). We disagree with mother’s contentions.

We conclude the juvenile court’s findings were supported by substantial evidence, bearing in mind the clear and convincing standard (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012), and that mother would not have obtained a more favorable result had the juvenile court applied the section 361.2 detriment standard at the dispositional hearing. (See In re D.P. (2020) 44 Cal.App.5th 1058, 1068; In re D’Anthony, supra, 230 Cal.App.4th at p. 303.) We also conclude that any failure to state facts on the record was also harmless because, based on the evidence, we do not find it is reasonably probable a result more favorable to mother would have been reached had the court done so. (In re D.P., at p. 1068.)

Here, the evidence of the prior referrals due to mother’s past behavior, including not only the sexual abuse, which we have discussed at length, but physical abuse toward all her children, the existence of a court-issued restraining order protecting A.O. from mother, and A.O.’s reports that he did not feel safe with mother and did not want to be left alone with her, all support the juvenile court’s finding that A.O. was at substantial danger if placed with mother. The danger existed at the time of the hearing and no reasonable means existed to protect A.O. because of mother’s resistance to the recommended sex offender services.

Since there is substantial evidence to support the juvenile court’s “substantial danger” finding, we infer the juvenile court would have relied on the same evidence to make a detriment finding against mother. Thus, it is not reasonably probable the juvenile court would have made a different finding had it expressly considered whether the placement would be detrimental to A.O.’s safety or physical well-being under section 361.2. We also conclude it is not reasonably probable the court would have come to a different conclusion had it put facts supporting its decision on the record, based on the evidence as well as the fact that mother made no objections to, or argument against, the agency’s dispositional recommendation, which the court followed. In the absence of contest or argument on the issue of disposition, we presume the court simply made its finding based on the evidence that supported it, as we have discussed.

Accordingly, any error was harmless and reversal is not required.

DISPOSITION

The court’s jurisdictional and dispositional findings and orders are affirmed.

DE SANTOS, J.

WE CONCUR:

SMITH, Acting P.J.

MEEHAN, J.

[1] The reports list A.O.’s gender as female but indicate A.O. prefers “he/him” pronouns. Respecting A.O.’s preference, we refer to A.O. using the he/him pronouns throughout this opinion.

[2] All further undesignated statutory references are to the Welfare and Institutions Code.

[3] See footnote 1, ante, page 2.

[4] Penal Code section 11165.1 defines “ ‘sexual abuse’ ” as “sexual assault” as defined by the criminal offenses of rape, statutory rape, rape in concert, incest, sodomy, oral copulation, lewd or lascivious acts upon a child, sexual penetration, or child molestation. (Id., subd. (a).) “ ‘[S]exual assault’ ” includes but is not limited to: (1) penile penetration of the vagina; (2) oral sex; (3) penetration of the genitals or anal opening, including by use of object, excluding acts performed for a valid medical purpose; (4) intentional touching of the genitals or intimate parts for the purposes of sexual arousal or gratification, excluding acts reasonably construed as normal caretaker responsibilities, interactions with or demonstrations of affection for the child, or acts performed for a valid medical purpose; and (5) masturbation in the presence of the child. (Id., subd. (b).)

Adams v. Superior Court (1957), 49 Cal.2d 427
Amoco Chemical v. Certain Underwriters of Lloyds (1995), 34 Cal.App.4th 554
Andrews v. Superior Court (1960) 183 Cal.App.2d 756
Armstrong v. Gates (1973) 32 Cal.App.3d 952
Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.
Associated Brewers Distr. Co. v. Superior Court (1967), 65 Cal.2d 583
In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240
Bailey v. Superior Court (!977), 19 Cal. 3d 970
Beesley v. Superior Court (1962), 58 Cal.2d 205
Beltone Electronics Crop. v. Superior Court (1978), 87 Cal.App.3d 452
Bernson v. Browning-Ferris (1994), 7 Cal.4th 926
Beverly Hills Nat. Bank & Trust Co. vs. Superior Court (1961), 195 Cal.App.2d 861
Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.
Boal v. Price Waterhouse(1985), 165 Cal.App.3d 806
Bolles v. Superior Court (1971), 15 Cal.App.3d 962.
Calcor v. Superior Court(1997), 53 Cal.App.4th 216
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16
Las Canoas Co., Inc. v. Kramer (2013), 216 Cal.App.4th 96
Carlson v. Superior Court (1961) 56 Cal.2d 431, 440.
Carter v. Superior Court(1990), 218 Cal.App.3d 994
Chapman v. Superior Court(1968), 261 Cal.App.2d 194
Chavez v. Zapata Ocean Resources (1984) 155 Cal.App.3d 115
Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d 1142
Christy v. Superior Court (1967), 252 Cal.App.2d 69
City of Woodlake v. Tulare County Grand Jury (2011), 197 Cal.App.4th 1293
Civiletti v. Municipal Court(1981), 116 Cal.App.3d 105
Clark v. Superior Court (1960),177 Cal.App.2d 577
Cooke v. Superior Court(1989), 213 Cal.App.3d 401
Cooley v. Superior Court (Greenstein) (2006) , 140 Cal.App.4th 1039
Coopman v. Superior Court (1965), 237 Cal.App.2d 656
Crippen v. Superior Court (1984), 159 Cal.App.3d 254
Crummer v. Beeler (1960) 185 Cal.App.2d 851.
Dept. of Health Services v. Superior Court (1980) 104 Cal.App.3d 80
DiNapoli v. Superior Court (1967), 252 Cal.App.2d 202
Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)
Dow Chemical v. Superior Court (1969) 2 Cal.App.3d 1.
Duggan v. Superior Court (Hasso) (1981) 127 Cal.App.3d 267 , 179 Cal.Rptr. 410
Elmore v. Superior Court (1967), 255 Cal.App.2d 635
Emerson Electric Co.v. Superior Court(1997), 16 Cal.4th 1101
Estate of Ruchti(1993), 12 Cal.App.4th 1593
Filipoff v. Superior Court (1961), 56 Cal.2d 443 .
Fireman's Fund Ins. Co. v. Superior Court (1977), 72 CA3d 786
Flora Crane Service Inc. v. Superior Court (1965), 234 Cal.App.2d 767
Flynn v. Superior Court (1979) 89 Cal.App.3d 4916.
Fuss v. Superior Court (1969), 273 Cal.App.2d 807
George v. Double D. Foods(1984), 155 Cal.App.3d 36
Glass v. Superior Court(1988), 204 Cal.App.3d 1048
Goodman v. Citizens Life & Casualty Ins. Co. (1967) 53 Cal.App.2d 807
Grannis v. Board of Medical Examiners (1971), 19 Cal.App.3d 551
Green v. G.T. E. California, Inc (1994), 29 Cal.App.4th 407
Greyhound v. Superior Court (1961) 56 Cal.2d 355, 388.
Hall v. Clifton Precision (1993 EDPa), 150 FRD 525
Hand v. Superior Court (Boles) (1982) 134 Cal.App.3d 436 , 184 Cal.Rptr. 588
Hill v. Superior Court (1974),10 Cal.3d 812 (criminal case).
Hinoiosa v. Superior Court (1976) 55 Cal.App.3d 692 (criminal case).
Hoiles v. Superior Court(1984),157 Cal. App.3d 1192
Housing Authority v. Gomez (1972) 26 Cal.App.3d 366
IES Corp. v. Superior Court (1955) 44 Cal.2d 559
In re Bongfeldt (1971) 22 Cal.App.3d 465.
In re Lemon (1981) 113 Cal.App.3d 769
In re marriage of Stephens(1984), 156 Cal.App.3d 909
Inabnit v. Berkson(1988), 199 Cal.App.3d 1230
International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367
Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616.
Johnson v. Superior Court (1968), 258 Cal.App.2d 829
Kaplan v. Eldorado Ins. Co. (1976) 55 Cal.App.3d 587
Kenney v. Superior Court (1967), 255 Cal.App.2d 106
Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405
Kramer v. Superior Court (1965) 237 Cal.App.2d 753
Lantz v. Superior Court(1994), 28 Cal.App.4th 1839
Las Canoas Co., Inc. v. Kramer (2013), 216 Cal.App.4th 96
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109
Lemelle v. Superior Court (1978)77 Cal.App.3d 148,157. (Fn. l, criminal case.)
Liberty Mutual Insurance Co. v. Superior Court(1992), 10 Cal.App.4th 1282
Lowy Development Corp. v Superior Court(1987), 190 Cal.App.3d 317
Lund v. Superior Court (1964) 61 Cal.2d 698.[contempt of court
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390
MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 290.
McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386
Meritplan Ins. Co. v. Superior Court (1981), 124 CA3d 237
Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282
Morris Stulsaft Foundation v. Superior Court(1966), 245 Cal.App.2d 409
Ngai v. Old Navy (D.N.J.2009), Civil Action No. 07-5653 (KSH) (PS). July 31, 2009
Nagle v. Superior Court (1994), 28 Cal. App.4th 1465
Naser v. Lakeridge Athletic Club (6/27/2014) , Cal.App.4th
In re Natural Gas Commodity Litigation (S.D.NY. 2005) Slip Copy, 2005 WL 3036505
Neary v. Regents(1986), 185 Cal.App.3d 1136
Nowell v. Superior Court (1963), 223 Cal.App.3d 652
Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal. App.2d 61
Pacific Telephone v. Superior Court(1970), 2 Cal.3d 161
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285
Pember v. Superior Court (1966), 240Cal.App.2d 888.
Pember v. Superior Court (1967) 66 Cal.2d 601, 604;
People v. Younger (1970) 5 Cal.App.3d 575
Person v. Farmers Ins. Group (1997), 52 Cal.App.4th 813
Pierburg GmbH v. Superior Court (1982), 137 Cal.App.3d 238
Poe v. Diamond(1987), 191 Cal.App.3d 1394
Poeschl v. Superior Court (1964), 229 Cal.App.3d 383
Pollard v. Pollard (1959), 166 Cal.App.2d 698
Rifkind v. Superior Court(1994), 22 Cal. App. 4th 1255
Roberts v. Superior Court (1973) 9 Cal.3d 330,342
Rosemont v. Superior Court (1964), 60 Cal.2d 709
Rosen v. Superior Court (1966) 244 Cal.App.2d 586
San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400
San Diego Prof. Assn. v. Superior Court(1962), 58 Cal.2d 194
Sasson v. Katash (1983), 146 Cal.App.3d 119
Scheerer v. Plaza Marine Coml. Corp. (1971) 16 Cal.App.3d.
Serrano v. Stefan Merli Plastering Co., Inc. (2008),162 Cal.App.4th 1014
Shively v. Stewart (1966) 65 Cal.2d 475
Slagle v. Superior Court (1989), 211 Cal.App.3d 1309
Snyder v. Superior Court (1970) 9 Cal.App.3d 579.
Sobado v. Morago(1987)189 Cal.App.3d 1
Southern Cal. Edison v. Superior Court (1972) 7 Cal.3d 832
Southern Railway Co. v. Lanham (5th Cir. 1968) 403 F.2d 119, 123 & 127.(Re
Spectra-Physics Inc. v. Superior Court(1988), 198 Cal.App.3d 1487
Spraque v. Equifax (1985), 166 Cal.App.3d 1012
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006
Suezaki v. Superior Court (1962) 58 Cal.2d 166.
Sullivan v. Superior Court(1972), 29 Cal.App.3d 64
Terry v. SLICO (2009) , 175 Cal.App.4th 352
Tops & Trousers v. Superior Court (1973) 31 Cal.App.3d 102.
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431
Trade Center Properties v. Superior Court(1960), 185 Cal.App.2d 409
Tucker v. Pacific Bell Mobile Services (2010),186 Cal.App.4th 1548
Twin Lock Inc. v. Superior Court (1959), 52 Cal.2d 754
Union Trust Co. v. Superior Court (1938) 11 Cal.2d 449.
United States ex rel Tyson v. Amerigroup Ill., Inc. (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929
Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688
Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507
Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326
Volkswagen Aktiengesellschaft v. Superior Court (1981 ) 123 Cal.App.3d 840
Waters v. Superior Court (1962) 58 Cal.2d 885
Weinkauf v. Superior Court (1966) 64 Cal.2d 662
Weisman v. Bower (1987), 193 Cal.App.3d 1231, 238 Cal.Rptr. 756
West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407
Westly v. Superior Court (2004), 125 Cal.App.4th 907,
Willoughby v. Superior Court(1985), 172 Cal.App.3d 890
Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618
Zinn v. Superior Court (1980) 108 Cal.App.3d 583
CONTENTS -------CASES
SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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CASE OUTLINE

20 DAY HOLD: Without leave of court, Plaintiff may not notice a deposition until 20 days after service or appearance by any defendant [C.C.P. §2025.210(b)]
Based on service or appearance of ANY defendant
Bernson v. Browning-Ferris (1994), 7 Cal.4th 926. fn.2

Prior law accord [Waters v. Superior Court (1962), 58 Cal.2d 885]
Applies to C.C.P. §2020.410 records only deposition
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16, 23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]
Court Order "to serve...on an earlier date." C.C.P.§2025.210(b)
Courts have not determined that depositions may procede without any notice, as contasted to shortened notice, or protection to unserved parties or third parties. Protection might be afforded by parties who have a duty or an interest in protecting privacy rights of persons who do not receive notice. The statute expressly authorizes shortening time on a showing of good cause but does not authorize orders dispensing with notice entirely.

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16, 23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]

O'Grady v. Superior Court (2006), 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72, 2006 WL 1452685 A writ issued directing the trial court to enter a protective order sought by publishers of a website to prohibit discovery of sources or content of e-mails stored on a service providers servers. "Along with the complaint Apple filed an ex parte application for commissions and orders empowering it to [serve subpoenas] on...any Internet service providers or other persons or entities....The stated basis for the application was that 'the true identities of the defendants in this action cannot be ascertained without these subpoenas.'....The court then granted the application for discovery, ... for documents that may lead to the identification of the proper defendant or defendants in this action.” Although it was not an issue in the case, the court noted in background:
"Here, however, Apple made petitioners into targets of discovery by securing orders authorizing it to conduct discovery against them. It was required to secure such orders because, by statute, a plaintiff's power to conduct depositions without leave of court does not arise until “20 days after the service of the summons on, or appearance by, any defendant.” (Code Civ. Proc., § 2025.210, subd. (b).) Not having yet named any defendant, and a fortiori having served none, Apple needed leave of court before it could propound discovery to petitioners or anyone else.'
FRCP provisions on initiating discovery differ from California and federal cases permit discovery to determine the names of unknown defendants when authorized by court order. See FRCP Rule 26(d); Paramont Pictures v. Davis (E.D.Pa.), 2006 WL 2092581 ["Comcast receives over 600 subpoenas a month requesting subscribers' identities based upon the subscriber's IP address and date/time of activity. Ninety percent of these subpoenas are from law enforcement agencies investigating serious crimes, such as pornography and bomb threats."]

PRIORITY [C.C.P. §2019.020, former §2019(c)] No priority in order of taking depositions a matter of law but court may determine.
Rosemont v. Superior Court (1964), 60 Cal.2d 709 [the issue was whether recorded statements of a party and its employees should be produced prior to the depositions; while giving deference to the normal order of discovery, the Supreme Court recognized that on a showing of good cause, a trial court could exercise its discretion to control the timing]

Poeschl v. Superior Court (1964), 229 Cal.App.2d 383. Plaintiff tape recorded conversation with defendant and its employees. The trial court denied the motion to compel production of the recordings prior to the deposition of defendant in order for defendant to refresh recollection. Relying on Rosemont the appellate court reversed the trial court. Based on the "inequitable" use by only one side of the recordings, it ordered production of recordings of conversations with defendant but not its employees prior to the defendant's deposition.
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PROTECTIVE ORDER C.C.P. §§2025.420, 2017.020(a), 2025.420, 2025.470 [former C.C.P. §§2025(i), 2017(c), 2025(g) 2025(n)]
Timing
Slagle v. Superior Court (1989), 211 Cal.App.3d 1309, 1312 [motion brought after production date is not prohibited]
See Rosemount and Poeschl cases above.
Postponement of deposition
Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110. [Trial court precluded deposition until after summary judgment hearing.]

Protection from improper depositions
Carlson v. Superior Court (1961) 56 Cal.2d 431. [Trial Court prohibition of depo when motion to modify interlocutory decree pending reversed; right to take deposition absent a showing of embarrassment, harassment, oppression etc. fn.5 states depo on new facts certainly permitted;]
Weisman v. Bower (1987), 193 Cal.App.3d 1231, 238 Cal.Rptr. 756 Motion to prevent a deposition was denied and sanctions issued for a frivolous motion. The trial court reversed based on the standards of 128.5 but on remand the trial court should exercise its discretion to award sanctions under section 2019. While the appellate court impied a motion to prevent a deposition was unlikely to be granted, it conceded it could and that the trial court must consider all facts in exercising its discretion.
"Here, the particular facts included: a history of discovery in both this case and the related New York action which apparently included the deposition of Bower in the New York action; the fact that only the limited issue of jurisdiction was contested; the fact that extensive written discovery had been completed, and that Bower's attorney may have offered to provide more information; the fact that all of Weisman's discovery requests followed Bower's stipulations to continue the hearing on the motion to quash, which may have been made with the understanding that no further discovery would be needed. [193 Cal.App.3d 1239]While these facts do not constitute a compelling argument for a protective order, and while we do not suggest that the court should have granted the motion in this case, it would not necessarily have been an abuse of discretion to do so. The court might have ordered, for example, that Bower's deposition be stayed pending receipt of more complete answers to Weisman's written discovery requests. In light of this conclusion, we cannot rule that, under the facts of this case, Bower's motion for a protective order was "totally and completely without merit."
Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616.
Estate of Ruchti (1993) 12 Cal.App.4th 1593 , 16 Cal.Rptr.2d 151 [depo of opposing counsel prohibited; only permit on showing of extermely good cause: no reasonable alternatives, crucial to case and not infringing on privilege or work product]
Trade Center Properties Inc. v. Superior Court (1960) 185 Cal.App.2d 409[Tr.Ct granted motion to quash attorney depo; writ denied; ]

Fireman's Fund Ins. Co. v. Superior Court (1977) 72 Cal.App.3d 786, 790. [Tr.ct. denial of depo of attorney rev'd; Atty was sole negotiator, provider of information to resolve dispute prior to trial and percipient if not major witness in bad faith claim based on those negotiations.]

State Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 41 [Tr.Ct denial of motion to quash deposition of public official rev'd]
Protection from production of privileged documents
Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [Motion to quash or appearing at deposition and objecting to production are alternatives; Motion to quash not required or a prerequisite to raising objections on a motion to compel production]

Slagle v. Superior Court (1989), 211 Cal.App.3d 1309 [Claim re irrelevancy of medical records of defendant overruled; motion may be brought after production date ]
Protection from improper conduct at deposition 2025(n)
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [Sanctions imposed against counsel for instructing client to not answer on relevancy grounds. Instruction not to answer only proper on privilege issues. Otherwise, only recourse against improper questioning is to terminate the deposition, seek a protective order and run the risk of sanctions]
Extraordinary costs may be shifted to requesting party:
San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."Tr Ct. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]

WITNESS FEES
DiNapoli v. Superior Court(1967), 252 Cal.App.2d 202 [witness fees are not required to be paid to a party in advance and refusal to appear as noticed in accord with the distance limitations of the C.C.P. was basis for monetary sanctions]
CONTENTS CASES CASE OUTLINE
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NOTICE OF DEPOSITION to "party who has appeared in the action" C.C.P. §2025.240 [ former C.C.P. §2025(c)]
Notice must be given to "some adverse party"
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 at p.23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]

Lund v. Superior Court(1964), 61 Cal.2d 698,712 [dictum. "the failure to give any party to the principal action any notice that the contemplated depositions were to be taken may be argued as a valid ground for refusal to appear. It can be argued that failure to give notice results only in an inability to use the deposition at trial. But, on the other hand, a more convincing argument may be made, arriving at a contrary result. If a party were allowed to compel an independent witness to give his deposition, all without notice to the opposing party, a situation not contemplated by the discovery statutes would result. For then a party might resort to all manner of discovery without adequate protection to his opponent, so long as he intended to forego any formal introduction of the material at time of trial. This would present an intolerable situation."]
Unserved Parties need not be served with notice of deposition
Cf. Good cause required under prior law [§2019(a)(3)] to take depositions without notice to unserved parties
Waters v. Superior Court (1962) 58 Cal.2d 885.(Prior evasion of service is good cause.)
Required for Records Only Deposition [C.C.P. §2020]
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 [General provisions of C.C.P. §2025 & §2028 apply to C.C.P. §2020(d) records only deposition]
Video / Audio Recording
Remote electronic depositions
California Rule of Court, Rule 3.1010
CONTENTS CASES CASE OUTLINE
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COMPELLING ATTENDANCE BY SUBPOENA
NOTE: the subpoena process expressly allows for production of electronically stored information "ESI"
C.C.P. §1985.8 effective in July 2009 is similar to provisions permitting a demand for production by parties purusant to C.C.P. §2031 et seq
A similar provision was not added for noticed depositions of parties.

Statutes
C.C.P. §§2020.210(b), 1985(c): a deposition subpoena can be issued by any attorney of record.
C.C.P. §1985(b) affidavit must be served with subpoena to require production at deposition
(1) showing good cause for production [but see provision in 1987.5 & Discovery Act below eliminating the requirement to show "good cause"]
(2) specifying exact matters to be produced
(3) "setting forth in full detail the materaility thereof to the issues involved in the case"
(4) "stating" under oath the witness has the items
The affidavit showing good cause required by C.C.P. §1985(b) is not required for any nonparty deposition. C.C.P. §§2020.310, 2020.410(c), 2020.510(b)
The affidavit requirements for identification, possession and materiality to the issues required by C.C.P. §1985(b) is not addressed in the Discovery Act sections on nonparty depositions. However, C.C.P. §1987.5 expressly provides that the affidavit need not be served in the case of a business records only deposition pursuant to C.C.P. §2020.410.
C.C.P. §1983.5 personal records of consumer, CCP 1985.6 employment records, and CCP1985.8 electronically stored information
C.C.P. §1987.5 subpoena "invalid" unless §1985(b) affidavit served with it except subpoena for "only the production of business records" pursuant to C.C.P. §2020.410.
C.C.P. §2020.220(c) subpoena can require deponent to appear, testify and produce at deposition and appear in court on specified issues
C.C.P. §2020.010 et seq recognizes 3 types of nonparty depositions:
C.C.P. §2020.310 "only the attendance and testimony of the deponent";
C.C.P. §2020.410 "only the production of business records";
C.C.P. §2020.510 attendance, testimony and production by deponent

City of Woodlake v. Tulare County Grand Jury (2011), 197 Cal.App.4th 1293 Good cause affidavit requirements of C.C.P.§1985 for a subpoena does not apply to civil grand jury proceedings because they are not civil proceedings

Terry v. SLICO (2009) , 175 Cal.App.4th 352 [Jun. 25, 2009.] An affidavit showing "good cause" is not required to be served with a subpoena on a non-party witness to compel attendance and/or production of documents. C.C.P. §§2020.310, 2020.410(c), 2020.510(b) apply and expressly provide that a deposition subpoena that requires production of business records or attendance, testimony and production "need not be accompanied by an affidavit or declaration showing good cause for the production...."
No objection or motion for protective order was made and the non-party deponent did not appear for deposition. A motion to compel attendance and sanctions was opposed based solely on lack of service of an affidavit showing "good cause" which is expressly and directly eliminated as a requirement by Discovery Act Section 2020.510(b). The objection was of course overruled. The trial court ordered the non-party witness to appear at deposition and pay sanctions for the prior failure to appear. The Court of Appeal affirmed and awarded costs to be paid by the non-party. Caution should be exercised in reading the opinion with implications that go far beyond the facts and issues presented and does not appear to be supported by the statutory language or any legislative history. The opinion noted what the court believed were inconsistencies in statutory provisions on affidavit requirements that had been enacted twice in recent years by the legislature and suggested the legislature made a mistake.
COMPELLING ATTENDANCE BY NOTICE [C.C.P. §2025.280(a)]
Deponents: party, officer, managing agent, employee
See below re compelling attendance of deponents in California
Managing Agent.
Waters v. Superior Court (1962), 58 Cal.2d 885,896. ["Managing Agent" exercises judgment & discretion in dealing w/ corp matters; Identifies self w/ interests of corp; Expected to comply w/ employer directive to appear; Not just sole shareholder who manages & controls corp & executives e.g. in this case, not Howard Hughes.]
"Person for whose immediate benefit ..." subject to notice under current statute but protective order quashing depo notice and requiring subpoena upheld
Southern Cal. Edison v. Superior Court (1972) 7 Cal.3d 832. [Deposition of class members. Court applied practical approach and discretion to determine issue of discovery in the context of the class action setting. Although finding that unnamed class member were persons for whose immediate benefit an action was prosecuted and thus normally the subject of deposition by notice, the court relied on the general protective order provisions to affirm the trial court's quashing of a noticed deposition without prejudice to subpoena to the unnamed class members. Despite extensive efforts by class reps to produce unnamed class members, only 2 of 20 were produced. The court was compelled by the practicalities and noted at p.838-9 "...most importantly, the named plaintiffs contend that the allowance of merely a notice procedure for the taking of depositions will destroy the effectiveness of the class action as a litigation tool and as an economic method of adjudication." The court also rejected a general rule that defendants must show good cause to propound discovery to unnamed class members. p.841 "... The underlying problem posed by the trial court's order is, as with so many discovery situations, a practical one: the allocation of the burden of securing the attendance at depositions of the unnamed plaintiffs...."]

Waters v. Superior Court(1962), 58 Cal.2d 885
Hand v. Superior Court (Boles) (1982) 134 Cal.App.3d 436 , 184 Cal.Rptr. 588 [spouse with community property interest in recovery of plaintiff in med mal case must be produced on notice as person for whose immediate benefit action is prosecuted]
Duggan v. Superior Court (Hasso) (1981) 127 Cal.App.3d 267 , 179 Cal.Rptr. 410[In this case, petitioner was a partner in a real estate venture. We conclude that, under the authority heretofore set forth, petitioner's spouse has no present, immediate, or direct interest in the property constituting the partnership assets. Any claim to a community property interest in the partnership would be against petitioner rather than real parties, and under the showing made here, the action is not being prosecuted for the immediate benefit of the person whose deposition is sought.]
Corporate Depositions
see also corporate custodians

C.C.P. §2025.230 [former§2025(d)(6)2d¶]:
"If the deponent named is not a natural person"
deposition notice describes subject matter
deponent designates and produces persons
persons designated as "most qualified to testify on its behalf"
"to the extent of any information known or reasonably available to the deponent"
Officer, director, managing agent, employees, agents,
Not former employees
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The court criticized the witnesses lack of familiarity with basic documents, policy and general knowledge and procedures. The court noted that the statute does not obligate a corporation to produce former employees. In paraphrasing the statute, it stated that the corporation's "duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation." The court also required documents to be produced at the deposition even if produced previously. The writ issued for the return of the witnesses to the deposition.]
Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)
At a corporate 30(b)(6) deposition, the witness produced by the party “was unable to provide knowledgeable testimony on the majority of the sixteen topics designated in the deposition notice” and the party was “ordered...to produce a knowledgeable and fully prepared witness or witnesses to testify...concerning the ten topics not adequately addressed by [the witness] in the prior Rule 30(b)(6) deposition.” In addition the party was ordered “to conduct a diligent search and reasonable inquiry into each...requests for production and to produce all internal email regarding the subject matter of this case, communications between Taishan and CTG, relevant documents Taishan identified but did not produce, and documents for which Zhang admits no search was previously undertaken. If no documents are found, Taishan will be required to submit a declaration stating that a search was made for all responsive documents, explaining why any responsive documents could not be produced, or providing the circumstances under which the responsive documents were misplaced or destroyed.”
Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [When expense raised as objection to providing information re prior similar claims, plaintiff sought a corporate deposition re claims processing, recording, storage and retrieval. The claims director could not answers questions on the subject and plaintiff requested a person who could respond. Defendant refused despite the fact plaintiff had traveled to the corporate offices. Under FRCP 30(b)(6) the corporation had a duty to produce and prepare the witness to give "complete, knowledgeable and binding answers". The corporation had a duty to substitute a proper witness(p.126). The failure to designate was a failure or refusal to answer deposition questions justifying appropriate sanctions.]
Liberty Mutual Fire Ins. Co. v. LCL Administrators, Inc. (2008) , 163 Cal.App.4th 1093 Terminating and monetary sanctions for “vacuous, meaningless responses” to “straightforward interrogatories.. The opinion noted the lack of knowledge of the responding party's PMQ's deposition as part of a history justifying the sanctions.
Custodian of Records: see below
Compelling attendance in California
Parties
Housing Authority v. Gomez (1972) 26 Cal.App.3d 366. [Stipulated and court ordered depositions.]
Corporate Officers [2025.260(a)]
Glass v. Superior Court (1988), 204 Cal.App.3d 1048 [Corporate top management must attend Calif. deposition]

Twin Lock Inc. v. Superior Court(1959), 52 Cal.2d 754

Tops & Trousers v. Superior Court (1973) 31 Cal.App.3d 102.[A corporate officer is not a "party" within the meaning of 2019(a) (2) for deposition purposes and a party must obtain a prior court order to compel attendance for a deposition more than 75 miles but less than 150 miles from his residence]

Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 5.[Jurisdiction over foreign corporation may not provide jurisdiction over corporate officers outside jurisdiction.]
Corporate custodians
See also Corporate Depositions
What or who is a custodian of corporate records?
Corporation [Amoco Chemical]

Person(s) comparable to spokesman for corp. per C.C.P. §2025.230

Officer, director, managing agent [see Waters]

Officer/employee with possession, custody or control [Boal]

Employee who can authenticate documents [Amoco Chemical p.530]

See Chapman v. Superior Court(1968), 261 Cal.App.2d 194 [bookkeeper and
receptionist found not custodian of doctor's records; doctor or prior secretary to doctor was custodian; subpoena directed to "custodian" questioned; no notice of service in capacity of custodian]

CF. Trial: Out of state custodian cannot be noticed to appear at trial. Amoco Chemical v. Certain Underwriters at Lloyds(1995), 34 Cal.App.4th 554.[C.C.P. 1987(c) only applies to residents at time of service. Objection not required since notice void on its face . Sanctions order for failure to produce reversed. Boal case questioned. At p.560 the court distinguishes procedures compelling attendance and production at trial per 1987(c) and production at deposition or for discovery.]

Boal v. Price Waterhouse(1985), 165 Cal.App.3d 806 [error to grant motion to quash subpoena for trial served on partner in venue since documents are in the "presence" of the party over which the court has jurisdiction; court distinguishes from serving a non-party custodian in NY and requiring that person to appear in Calif.]
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Out of State Depositions
Parties:
Notice sufficient [C.C.P. 2026.010(b): Court Order and commission not required; opposing party must seek protective order.
Snyder v. Superior Court (1979) 9 Cal.App.3d 579.

Glass v. Superior Court(1988), 204 Cal.App.3d 1048 [dictum re alternative procedures]

California law governs [C.C.P. §2026.010(a)]
International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367

Ordering payment to attorney of attorney fees or expenses for travel to out of state deposition may be abuse of discretion.
Goodman v. Citizens Life & Casualty Ins. Co. (1967) 53 Cal.App.2d 807, 818.
Non-Parties:
Commission when necessary or convenient
Beverly Hills Nat. Bank & Trust Co. vs. Superior Court (1961), 195 Cal.App.2d 861 [denial of commission reversed; Bof P on party opposing to show good cause]

Dow Chemical v. Superior Court (1969) 2 Cal.App.3d 1 [Objections to out of state deposition considered with motion for commission; commission denied for failure to show good cause for expert's deposition]
C.C.P. §2026.010(f)
Clerk issues commission on request. If the foreign jurisdiction requires a court order, it issues on ex parte application.
Noticed motion for commission not required by C.C.P. §2026.010 though required by prior law C.C.P. §2018(b)
JUDICIAL COUNCIL FORM COMMISSION
Foreign nation depositions[C.C.P. §2027]
See Discovery Case Outline - HAGUE CONVENTION
Procedures may have to conform with host country's procedures.
Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507

Volkswagen Aktiengesellschaft v. Superior Court(1981), 123 Cal.App.3d 840

Pierburg GmbH v. Superior Court (1982), 137 Cal.App.3d 238[Discovery orders vacated by ct ap; 1st seek discovery in compliance with Hague Convention]

Cooke v. Superior Court(1989), 213 Cal.App.3d 401

Jurisdiction over foreign corporation may not provide jurisdiction over corporate officers outside jurisdiction
Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507
Volkswagen Aktiengesellschaft v. Superior Court(1981), 123 Cal.App.3d 840
CONTENTS CASES CASE OUTLINE
SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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OBJECTIONS TO DEPOSITION
Procedure - Protective Order per C.C.P. §2025.420
Deposition as a matter of right
Greyhound v. Superior Court(1961), 56 Cal.2d 355,388.

Kramer v. Superior Court(1965), 237 Cal.App.2d 753, 755.

Goodman v. Citizens Life & Cas. Ins. Co.(1967), 253 Cal.App.2d 807, 819.

Inabnit v. Superior Court (1988), 199 Cal.App.3d 1230 [when no objection by patient, Dr. has no choice re prod of docs]

Person v. Farmers Ins.Group (1997), 52 Cal.App.4th 813 [ treating physician must produce records per subpoena from patient]
Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 ["Lower level officials, with some probable connection with plaintiff's case, are not permitted to avoid deposition by filing conclusory affidavits of ignorance."]
Opposing party must seek protective order to prevent, limit or continue the deposition per C.C.P. §2025.420
Carlson v. Superior Court (1961), 56 Cal.2d 431 [Procedure followed.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 586.[Only recourse to noticed deposition is to move for protective order; letter objection insufficient.]
Slemaker v. Woolley (1989) 207 Cal.App.3d 1377, 255 Cal.Rptr. 532 In a scheduling dispute regarding a non-party witness, counsel appeared at the depositon and immediately suspended it to seek a protective order. That lawyer was sanctioned by the trial court. The appeal was dismissed on the technicality that it was not an appealable order. In reviewing the facts the court stated "the situation was overtaken by schoolyard protocol".
Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [limiting deposition or offering written answers was improper; even if proper, a protective order should be obtained rather than insisting on the procedure at the deposition and not providing the information when asked]
NOTE: No automatic stay when seeking protective order pursuant to the broader protective order provisions of C.C.P. §2025.420
Cf.C.C.P. §2025.410 automatic stay provision when there is an objection as to notice errors or irregularities plus a motion based on that alleged defect. Such objectiongoes to notice issues & affects use of depo against the objecting party if the objection is valid and if the objecting party does not appear; the deposition is stayed only if the party both objects and moves for stay based on the notice defect pursuant to subpart (c) of §2025.410
NTENTS CASES CASE OUTLINE
topBurden of Proof on Opponent to show good cause
Armstrong v. Gates (1973) 32 Cal.App.3d 952, 957 [Prohibiting deposition was abuse of discretion when good cause not shown]

Carlson v. Superior Court (1961) 56 Cal.2d 431, 440.

Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616. [Depositions prohibited when five depositions noticed shortly before trial, 4 had previously been taken, "exhaustive discovery proceedings" had been taken, and the subject matter was irrelevant or of minor importance.]
See High Officials: when protective order sought, burden of proof shifts to party seeking deposition.
Procedure - Objection insufficient
C.C.P. §2025.410 objection goes to notice & affects use of depo
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285 [A party waives objections to distance limitations by failing to object 3 days prior to the deposition.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579

Procedure - Notice void on its face
Amoco Chemical v. Certain Underwriters of Lloyds(1995), 34 Cal.App.4th 554 [No objection required to a notice void on its face that purported to require an out of state custodian to attend trial.]
CF §2025.410.(a) Failure to object "waives any error or irregularity"

Valid objections
Abusive: excessive discovery
Jaffe v. Albertson Co. (1966), 243 Cal.App.2d 592, 616.[Depositions prohibited when five depositions noticed shortly before trial, 4 had previously been taken, "exhaustive discovery proceedings" had been taken, and the subject matter was irrelevant or of minor importance.]

Extraordinary costs may be shifted to requesting party:
San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."TrCt. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order]
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Abusive: improper deponents
Attorneys: must show extremely good cause, no alternatives & crucial to case to depose opposing counsel
Hickman v. Taylor, 329 U.S. 495, 513, 516-517 [91 L.Ed. 451, 67 S.Ct. 385] ... (it causes 'the standards of the profession [to] suffer'), and recognized as disrupting the adversarial nature of our judicial system,
Lund v. Superior Court
Carehouse Convalescent Hospital v. Superior Court (Sims) (2006)143 Cal.App.4th 1558 , -- Cal.Rptr.3d – Deposition of opposing counsel denied. Opposing counsel had made calculations and determinations regarding a staffing ratio in order to respond to a request for admission. Interrogatories sought follow up information and the response stated the basic information was available for the propounder to make calculations. The trial court granted further answers and permitted a deposition of counsel as an alternative means of obtaining the information if necessary, suggesting counsel might be considered an expert witness. Court of Appeals reversed. Deposition of opposing counsel may only be taken upon a showing of extremely good cause(1) lack of alternatives (2) information crucial to the preparation of the case. Opposing counsel has burden to show privilege or work product objection.
RD infringes on adversarial policy, disruptive, chill the attorney-client relationship, impede civility and easily lend themselves to gamesmanship and abuse, counter to public policy re work product, adds to expense of litigation,
Trade Center Properties v. Superior Court (1960), 185 Cal.App.2d 409 [trial court denial of motion to compel attorney deposition aff'd.; opposing counsel sought to take attorney deposition and obtain a witness statement that attorney had taken; At page 411: "Whether to protect the work product of that attorney or to restrict the picking of his brains, the court clearly should bar such a proceeding except upon a showing of extremely good cause"At page 412: "The reasoning of Hickman is well-nigh conclusive as to the need for restrictions upon taking the deposition of opposing counsel."
Spectra-Physics Inc. v. Superior Court (1988), 198 Cal.App.3d 1487, 1494, 1496 [Trial court reversed for permitting the deposition of counsel for non-settling defendants to be taken by settling defendant in a good faith settlement hearing;
"We do not hold that opposing trial counsel is absolutely immune from being deposed. We recognize that circumstances may arise in which the court should order the taking of opposing counsel's deposition. But those circumstances should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, [citation]; (2) the information sought is relevant and nonprivileged; and (3) [198 Cal.App.3d 1495] the information is crucial to the preparation of the case."
At page 1496: "The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case. (Shelton v. American Motors Corp., supra, 805 F.2d at p. 132]

Estate of Ruchti(1993), 12 Cal.App.4th 1593, 1603[trial attorney subpoenaed; motion for protective order plus 1/2 actual attorney's fees granted; Spectra Physics followed and tests not met]

Hoiles v. Superior Court (1984), 157 Cal. App.3d 1192 [possible to depose atty in his role as director]
Valdez v. Town of Brookhaven (E.D.N.Y.2007), Slip Copy, 2007 WL 1988792 (July 05, 2007) “...the plaintiffs move to compel the deposition of a Rule 30(b)(6) witness from... (the “Law Department”). ... because the Law Department allegedly established and supervised the operation which the plaintiffs' claim illegally targeted Latino residents for eviction. *** While it is well-established that communications made for the purpose of providing legal advice are protected by the attorney-client privilege, the privilege is limited to said communications. Given that the deposition has not yet occurred, the defendants do not know what questions will be asked and whether the responses would call for the disclosure of privileged communications. Thus, the defendants' assertion of the attorney-client privilege in advance of the deposition is premature. Accordingly, the plaintiffs' motion to compel the deposition of a Rule 30(b)(6) from the Law Department is granted."
Attorneys: Percipient witness may be deposed
Lund v. Superior Court (1964), 61 Cal.2d 698, [ p. 712, " Ordinarily, the law does not contemplate deposition of the attorney of record of a party...."]

Fireman's Fund Ins Co. v. Superior Court (1977), 72 Cal.App.3d 786 [Trial court reversed when it denied motion to compel attorney deposition. Attorney for plaintiff handled all negotiations and provided information to resolve the matter prior to filing a bad faith claim; attorney negotiations were at the heart of the claim and his appearance as a witness was probable; At page 790: "While the practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause (Trade Center Properties, Inc. v. Superior Court, supra) in those cases in which an attorney for a party is the sole, or principal, negotiator and in which bad faith is alleged and punitive damages are sought based upon that allegation of bad faith, then we think the facts fall outside attorney-client privilege, and outside the work product rule, and the deposition of the attorney may be taken, subject to all proper objections.]

Meritplan Ins. Co. v. Superior Court (1981),124 Cal.App.3d 237, 241-2 [attorney deposition permitted; after judgment in a PI case a a declaratory relief action on coverage and a bad faith cross complaint based on wrongful refusal to settle were brought; Meritplan insured one defendant and sought to depose two counsel in the underlying PI case who had represented plaintiff and the other defendant; the trial court's protective order quashing those two depositions was reversed; At page 242: "The trial court was in no position to determine in advance of the depositions the existence of privilege or the relevancy of the questions to be asked. Needless to say, the single fact that the proposed deponents are lawyers rather than lay witnesses provides no basis per se for preventing the taking of their depositions. Yet from the record it appears that this was the only possible basis for the protective order."]
Hoiles v. Superior Court (1984), 157 Cal. App.3d 1192 [possible right to depose attorney in his role as director]

Spectra Physics v. Superior Court(1988), 198 Cal.App.3d 1487 [dictum re atty as sole negotiator leading to insurance bad faith case]

Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d 1142 at p. 1154 [AC issue; merger of business; legal role of house counsel made clean distinction of roles impossible and made attorney and client indistinguishable. House counsel was most knowledgeable person in corp and could be compelled to answer questions at deposition as to his knowledge. Specific questions not identified in opinion.]

High Officials: government & corporate; B of P on party seeking depo
Westly v. Superior Court (2004), 125 Cal.App.4th 907 [Agency heads and other top governmental executives are not subject to deposition absent compelling reasons. Calif. AG and Controller not requried to testify on statutory duty of Gambling Commission to collect money from tribes. Neither had factual information, both were sued in their official capacity and the issue was a matter of law.]
Liberty Mutual Insurance Co. v. Superior Court(1992), 10 Cal.App.4th 1282 [writ compelling tr ct to grant protective order denying depo of defendant CEO in bad faith case until show reason to believe he has "unique or superior knowledge" & exhaust less intrusive disc.; dictum re normally can't avoid depo w/ conclusory declaration of ignorance]

Nagle v. Superior Court (1994), 28 Cal. App.4th 1465 [director of state dept.accused of invading privacy protected; no personal knowledge; tr ct rev'd for permitting depo; high gov't official must have "direct personal factual information pertaining to material issues" that is "not available through any other source"; p.1468]

State Board of Pharmacy v. Superior Court (1978) 78 Cal. App. 3d 641, 644 [AG testimony in official capacity & as expert re atty fees; no personal knowledge and equal or better witnesses available; when challenged must be some showing by party seeking depo to justify; no "clear showing" depo "required" or "essential" "to prevent prejudice or injustice"]

Deukmejian v. Superior Court (1983) 143 Cal. App. 3d 632, 633[Concede basic principle"that a busy public official should not be required to give evidence in his or her official capacity in the absence of compelling reasons." Issue re adequacy of reasons. Testimony irrelevant since issue re constitutionality of jail overcrowding & depo sought re gov't policy rather than jail conditions.]
Civiletti v. Municipal Court(1981), 116 Cal.App.3d 105 [U.S Atty Gen. not req. to testify absent clear showing essential to prevent prejudice]
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SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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CONDUCT OF DEPOSITION
General principles
C.C.P. 2025.330(d) "Proceed as permitted at trial"

Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 818. [Marking documents for identification and providing original to court reporter. "It contemplated the use of those documents in connection with the deposition, a use which is frustrated if the documents cannot be marked for identification. The civil discovery statutes are to be given a practical interpretation consistent with their purpose to ease the course of litigation."

Emerson Electric Co. v. Superior Court(1997), 16 Cal.4th 1101 [diagram & reenactment at videotaped depo]

Hall v. Clifton Precision (1993 ED Pa), 150 F.R.D. 525 [Controversial re guidance re improper conduct of counsel on consulting with client etc.]
Ngai v. Old Navy (D.N.J.2009), Civil Action No. 07-5653 (KSH) (PS). United States District Court, D. New Jersey. July 31, 2009. [Hall case cited. Communication by attorney via text messaging during video conferenced depo not protected by attorney-client privilege since improper to communicate during deposition]
International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367[hardball tactics condemned in awarding sanctions for not producing docs per EC 771]
Persons present at deposition
Evidence Code §777. (a) Subject to subdivisions (b) and (c), the court may exclude
from the courtroom any witness not at the time under examination so
that such witness cannot hear the testimony of other witnesses.
(b) A party to the action cannot be excluded under this section.
(c) If a person other than a natural person is a party to the
action, an officer or employee designated by its attorney is entitled
to be present.
Parties cannot be excluded from depostion
Willoughby v. Superior Court(1985), 172 Cal.App.3d 890
Corporations
Lowy Development Corp. v Superior Court(1987), 190 Cal.App.3d 317 [Proper to limit to one officer or employee + deponent & to require the same corporate representative at each depo except a deposition of that representative]
Scope of exam
Should not be limited unless the information sought is clearly privileged or irrelevant
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing not to answer on relevancy grounds; only proper to instruct on privilege grounds; relevancy can only be addressed on motion for protective order when it is bad enough to justify the disruption of the deposition and risk being sanction for the disruption]

Beverly Hills Nat'l Bank v. Superior Court (1961) 195 Cal.App.2d 861, 865. [The scope of examination should not be limited unless the information sought is clearly privileged or irrelevant...."

IES Corp. v. Superior Court (1955) 44 Cal.2d 559, 562-3. [tr ct denied motion to compel answers to 52 deposition questions; ct ap rev'd on 48 but affirmed on privileged and 3 irrelevant questions; "...the witness in a deposition ... must answer all questions seeking nonprivileged information that is material to the subject matter of the pending action. ....At the same time, the taking of a deposition must not be abused, ... and the witness need not answer questions that serve no proper purpose or are irrelevant." ]
Video / audio recording; instant visual display
Proper notice or court order required
Green v. G.T. E. California, Inc. (1994), 29 Cal.App.4th 407 [party defending depo attempted to videotape opposing counsel without any prior notice then moved to terminate the deposition, was sanctioned on that motion and appealed; sanctions affirmed; court suggests that in an appropriate case, a motion to permit videotaping prior to the depo might be appropriate; court questions appropriateness of videotaping opposing counsel; court suggests a 3 day notice might have been sufficient; current statute only provides for "simultaneous" videotaping ]

Notice of intent to video / audio record
Party taking deposition C.C.P. §2025.220(a)(5; §2025.330(c)
Other parties C.C.P. §2025.330(c) served 3 calendar days in advance, personal service, deponent
Physicians & Experts C.C.P. §2025.220(a)(6) notice of intent to use physician or expert depo at trial
Treating / Consulting Physicians and Experts C.C.P. §2025.220(a)(6) C.C.P. §2025.620(d) [note requirements for independence of operator]
Operational details prescribed C.C.P. §2025.340
Remote electronic depositions
Code of Civil Procedure §2025.310 deposition by telephone or remote electronic means
A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. The court may expressly provide that a nonparty deponent may appear at his or her deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer. The procedures to implement this section shall be established by court order in the specific action proceeding or by the California Rules of Court.
California Rule of Court, Rule 3.1010
Notice requirements
Who makes arrangements
Allocation of expenses
Deponent must be physically present
Party may be physically present
Trial court orders to resolve other issues

Demonstrations & Diagrams
Emerson Electric Co.v. Superior Court(1997), 16 Cal.4th 1101 [tr ct aff'd; compelling diagramming location of saw and reenacting accident]
Execution of document
Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913. Although the legal basis for the original motion to compel execution was not discussed and the deposition process was not used, the case was dismissed for refusal to comply with a court order requiring execution of an authorization required by hospitals to release medical records.
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Objections and Improper Questions [Note distinctions from other forms of discovery]
Necessary Objections that are waived if not made: C.C.P. §2025.460(a)(b)
Privileges and work product
Privileges; waived if not preserved per §2025.460(a) former §2025(m)(1)
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [" Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure." attorney sanctioned for instructing not to answer on relevancy grounds]

Errors and irregularities that could be cured "include, but are not limited to":
Manner of taking deposition
Oath or affirmation
Conduct of party, attorney, deponent or depo officer
Form of question
Form of answer
NOTE: "...the deposition shall proceed subject to the objection."
Unnecessary Objections that are not waived by failure to object C.C.P.§2025.460(c)
Competency of deponent

Relevancy, materiality
Stewart v. Colonial Western Agency (2001) supra["...the deponent's counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition." When things get too bad the remedy is to suspend the depo and seek a protective order at the peril of being sanctioned for doing so. ]
Admissibility at trial
Preserving objections to form of question

Chavez v. Zapata Ocean Resources (1984), 155 Cal.App.3d 115, 124 Trial court erred in excluding questions. "None of the questions put to Chavez, an adverse witness, during the deposition can be characterized objectionable as to form."
"Questions subject to objection as to form include
leading questions (subject to exceptions such as cross-examination, examination of an adverse witness, preliminary matters and expert witnesses) and
argumentative,
repetitive,
uncertain or unintelligible,
omnibus or compound questions and
those assuming facts not in evidence"

Greyhound v. Superior Court(1961), 56 Cal.2d 355, 392 (fn.16).(Witness requires protection from inter alia questions which cannot be answered without an admission of facts assumed therein.)
Improper questions
All facts supporting contentions
Pember v. Superior Court(1967), 66 Cal.2d 601, 604; Pember v. Superior Court (1966) 240 Cal.App.2d 888. ["All facts" questions requiring deponent to supply factual basis for legal theory of contributory negligence may not be appropriate at deposition.]

Rifkind v. Superior Court(1994), 22 Cal. App. 4th 1255 [Contention and "all facts" questions improper; atty/party; unfair to expect witness to have total recall]

Objections that are normally inappropriate to discovery may still be appropriate at depositions.
Greyhound v. Superior Court(1961), 56 Cal.2d 355, 392 Fn.16 ".... Depositions are governed by subdivision (c) of section 2016 which provides that examination shall "proceed as permitted at the trial. ..." The fact that this provision was not incorporated into the sections dealing with other forms of discovery indicates that the Legislature recognized a distinction between oral examination and other forms of discovery. In the former, the witness requires the protection afforded by those rules which prohibit questions which cannot be answered without admission of facts assumed therein, or which require lengthy explanation, or which cannot be readily understood. Such protection is not necessary in the other forms of discovery in which the party is not confronted by the requirement of immediate answer, and is entitled to the aid of counsel in framing an explanatory reply.

West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407, 421.("... objections... to the form of the question are for the protection of a witness on oral examination.")
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Instructions not to answer
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [Privilege is only basis for instructing not to answer; attorney sanctioned $2400 for instructing not to answer on relevancy grounds]

Nowell v. Superior Court (1963), 223 Cal.App.3d 652 [refuse to answer on advice of counsel re attorney-client privilege]

Pacific Telephone v. Superior Court(1970), 2 Cal.3d 161 [employees of defendant not answering on advise of counsel on relevancy grounds; ct ruled on relevancy issues; "An appellate court cannot reverse a trial court's grant of discovery under a "relevancy" attack unless it concludes that the answers sought by a given line of questioning cannot as a reasonable possibility lead to the discovery of admissible evidence or be helpful in preparation for trial"]

Morris Stulsaft Foundation v. Superior Court(1966), 245 Cal.App.2d 409 [3d party deponent followed suggestion of attorney for party and refused to answer questions on relevancy grounds; tr ct sustained and ct ap rev'd on relevancy issues]

Sobado v. Morago (1987), 189 Cal.App.3d 1 [128.5 sanctions against atty who advised wife of client re marital privilege reversed since no bad faith attempt to delay]
Coaching Witnesses
Tucker v. Pacific Bell Mobile Services (2010),186 Cal.App.4th 1548 Monetary sanctions for attorney coaching of witness at deposition affirmed but reversed in part because the amount cannot include anticipated cost that have not been incurred: “We conclude the court did not have the authority to award sanctions for 'further deposing Plaintiff Julie Knapp' because defendants had not 'incurred' those expenses within the meaning of section 2023.030, subdivision (a).” In dictum the opinion contains language that suggests that communications between the client/witness and counsel during the deposition may not be privileged
Resolving discovery disputes at the deposition
Parties should meet and confer at depo to resolve problems and efforts to do so are relevant to sanctions issue
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [off the record discussion sufficient when simple issue, positions clear, and time urgency

Sobado v. Morago (1987), 189 Cal.App.3d 1 [attorney should attempt to resolve issue re deponent's privilege with opposing counsel even when counsel does not represent the deponent]
Absent good faith efforts, "cooling off" period and further efforts may be required prior to any motion
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431 [although efforts at deposition were insufficient since counsel were just arguing, court does not conclude such discussions are always insufficient]
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SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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COMPELLING ANSWERS & DOCUMENT PRODUCTION [C.C.P. §2025.480]
Meet & confer requirements [C.C.P. §2025.480(b); See Meet & Confer Case Outline]
Burden of initiation on moving party
Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326 at p. 330 [prior rule of court 222.1]

Sobado v. Morago (1987), 189 Cal.App.3d 1 [attorney should attempt to resolve issue re deponent's privilege with opposing counsel even when counsel does not represent the deponent]
Sufficient efforts
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431 [argument at depo insufficient]

Volkswagenwerk Aktiengesellshaft at p. 333 [ Phone call by paralegal without authority and 2 uncompleted phone calls by atty. 25 days after answers to interrogs served were insufficient efforts to meet and confer.]

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [off the record discussion on simple issue is sufficient]

Sanctions [C.C.P. §2023.020]
Volkswagenwerk Aktiengesellshaft v. Superior Court (1981), 122 Cal.App.3d 326,

Denial of motion for failure
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431[tr ct acting "in excess of jurisdiction" w/o M&C]

Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326 at pp.328-9 [ prior rule 222.1; ct heard motion despite failure to meet & confer]
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Lodging of transcript [C.C.P. §2025.480(d)]
Lodging means present the documents to the court for purposes of motion.
Beltone Electronics Corn v. Superior Court (1978) Cal.App.3d 452, 456.
Failure to lodge is a potential ground for denial of the motion and perhaps for sanctions.
Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 514.
Separate statement [C.R.C. Rule 3.1343]
Neary v. Regents (1986), 185 Cal.App.3d 1136, 1145 [Dictum. Tr Ct denied motion for failure to provide separate statement pursuant to then Rule 335 though that was not an issue on appeal]

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p.1270
Rulings on individual questions [C.C.P. 2025.480(a) uses singular tense: "any", "the", "that"]
Specific questions and answers as contrasted to subject matter.
Dept. of Health Services v. Superior Court (1980) 104 Cal.App.3d 80.)

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p.1270 [order compelling response to "otherwise appropriate question concerning his knowledge of the investigation" was vague and overbroad and counsel's stipulation at the deposition to such rulings was not an estoppal; the court noted that both parties contributed to the vagueness problem by not delineating the questions and by not complying with C.R.C. 3.1020 separate statement requirements.]
Burden of proof to compel
San Diego Prof. Assn v. Superior Court(1962), 58 Cal.2d 194
Corporate Depositions
Questions "outside the scope" of the deposition notice
Federal trial courts are split but most do not limit the scope of the deposition questioning to the subject matter of the notice. Counsel may want to clarify that the witness was not produced to speak for the entity on subjects beyond the notice.
Teknowledge Corp. v. Akamai Technologies, Inc. Slip Copy, 2004 WL 2480707 (N.D.Cal.2004) ["The first issue is whether Mr. O'Mahoney should be compelled to answer questions at a Rule 30(b)(6) deposition that go beyond the subject matter designated in the deposition notice. As Teknowledge notes in its letter brief, there is a division of authority on whether the questions asked of a 30(b)(6) deponent must be limited to these matters or whether the scope of the deposition is limited only by the general relevance standard of Rule 26(b)(1). Compare Paparelli v. Prudential Insurance Co., 108 F.R.D. 727,730 (D.Mass. 1985)( limiting questioning to matters designated in the deposition notice) with Detoy v. City and County of San Francisco, 196 F.R.D. 362, 367(N.D.Cal. 2000); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499, (M.D.Pa. 2000) King v. Pratt & Whitney, 161F.R.D. 475 (S.D. Fla 1995) (all rejecting Paparelli ). This Court also declines so to limit the scope of a Rule 30(b)(6) deposition; the liberal discovery requirements of the Federal Rules are still applicable.....Accordingly, the Court GRANTS defendants' motion to compel plaintiff to answer the questions to which it made only an "outside the scope" objection."]
Hearings
Required on privilege issues
Titmas v. Superior Court (Iavarone) (2001) 87 Cal.App.4th 738 , 104 Cal.Rptr.2d 803
HELD: Oral hearing must be afforded on attorney-client privilege issues on a motion to quash depositions.
"Plaintiffs opposed the motion to quash on a variety of grounds, including waiver and the crime-fraud exception." A ruling was made without a hearing. "The Court ruled that the Motion to Quash the Subpoenas was denied, and that the attorney client
privilege was waived."
"...we hold that when there is a prima facie claim of attorney-client privilege, the trial judge must
accord a full hearing, with oral argument, before ordering the revelation of client confidences to the
other side and, in effect, compelling attorney testimony against a client."
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SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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DOCUMENT PRODUCTION:
See also Depostion and Document case outlines for cases applying concepts
ALTERNATIVE MEANS OF OBTAINING
Written Request for Document Production per C.C.P. §2031. See document production case outline
Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 818-9. [Using C.C.P. §2031 alternative does not affect manner of marking and use of documents at deposition. "The original order [per 2031] required the documents to be produced at the time and place of the deposition of Jerome Rosenthal. It contemplated the use of those documents in connection with the deposition, a use which is frustrated if the documents cannot be marked for identification. The civil discovery statutes are to be given a practical interpretation consistent with their purpose to ease the course of litigation. To require, as Rosenthal argues, that where documents are produced at deposition pursuant to an order obtained pursuant to section 2031 the documents cannot be marked for identification unless a subpoena duces tecum is obtained for the same documents is to adopt an impractical approach.]

Carter v. Superior Court (1990), 218 Cal.App.3d 994 [ Waiver by failing to move within 45 days not bar to seeking same documents by deposition]

See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [Corporation required to produce documents at P.M.K. deposition even though previously produced in discovery]
Noticed deposition of Party [C.C.P. §2025.220(a)(4) etc.] See Depostion case outline
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [corporate deposition]
Subpoena of non-party [C.C.P. 2020, 1985, 1987.5]
Terry v. SLICO (2009) , 175 Cal.App.4th 352
A non-party subpoena issued for a witness to attend and produce documents. No objection was made and the deponent did not appear. A motion to compel attendance and sanctions was opposed based on lack of service of an affidavit showing "good cause." The motion was granted and $2265 sanctions awarded. The appellate court affirmed and awarded costs to the party against the non-party.
Monarch Healthcare v. Superior Court (2000),78 Cal.App.4th 1282

United States ex rel Tyson v. Amerigroup Ill., Inc. (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929 Motion to quash production of e-mails of 3 employees of a non-party governmental agency was granted on grounds of relevance and undue burden despite (1) the requesting party's offer to pay the costs, (2) the limit of search efforts to certain terms, and (3) the limitation to one year. The trial court noted a stronger mandate to protect non-parties from burden:
Rule 45(c)(3)(A)(iv) mandates that a court "shall quash or modify" a subpoena if it "subjects a person to undue burden." The Advisory Committee's Notes to the 1991 amendments to Rule 45 make clear that the amendments have "enlarged the protections afforded persons who are required to assist the court by giving information or evidence." The rule "requires the court to protect all persons from undue burden imposed by the use of the subpoena power." Id. This is not the discretionary language of Rule 26(c), under which a court "may make any order which justice requires to protect a party or person from . . . undue burden . . . ." It is a "command[]." Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).

In keeping with the text and purpose of Rule 45(c)(3)(A), it has been consistently held that "non-party status" is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue. See N.C. Right to Life, Inc. v. Leake, -- F.R.D. --, 2005 U.S. Dist. LEXIS 22554, 2005 WL 2456982 (D.D.C. Oct. 6, 2005); Wyoming v. United States Dep't of Agric., 208 F.R.D. 449, 452 (D.D.C. 2002); In re Automotive Refinishing Paint, 229 F.R.D. 482, 495 (E.D.Pa. 2005). As the First Circuit has explained:
Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (Emphasis added). Here, the "unique burden" of restoring the email records and the "special weight" to be accorded HFS's non-party status combine to require that the defendants' subpoena be quashed under Rule 45(c)(3)(A)(iv).
In re Natural Gas Commodity Litigation (S.D.NY. 2005) Slip Copy, 2005 WL 3036505 [Court recognized that greater scrutiny would be afforded non-party discovery, balanced the burden against the utility of the information, and employed both cost shifting and sampling."The serving party bears the burden of showing the appropriateness of a subpoena served on a nonparty. [citation] 'In addition, where, as here, the discovery is sought from a non party, the Court should be particularly sensitive to weighing the probative value of the information sought against the burden of production on the non party .'{citation] ("[T]he status of a witness as a non-party to the underlying litigation 'entitles [the witness] to consideration regarding expense and inconvenience." ');"]
Litigation Privilege protection of custodian producing documents
Civil Code Section 47. "A privileged publication or broadcast is one made:...(b) In any (1) legislative proceeding, (2) judicial proceeding,(3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except...."
Jacob B. v. County of Shasta (2007), 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 April 05, 2007 [Litigation privilege applies to and prohibits an action based on the constitutional right to privacy. Official writing a letter to be used in litigation is protected by the litigation privilege and cannot be sued for violating the right to privacy of a non-party. The Constitutional Right to Privacy is not absolute and must be balanced against the absolute litigation privilege of Civil Code 47(b).]
Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.
Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]
Records deposition [C.C.P. §§2020.010(a)(3), 2020.020(b), 2020.410, 2025]
C.C.P. §2020.020 provides for three situations for the issuance of a subpoena: (a) only testimony (b) only business records for copying per §2020.410 and (c) testimony and production. C.C.P. §2020.410(c) provides that when seeking only production of business records for copying the subpoena must be directed to a custodian "qualified to certify the records." C.C.P. §2020.430 requires the "qualified person" to deliver the affidavit required by Evid. Code §1560. Affidavit accompanying records requires witness to attest that "(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act,condition, or event." Evid. C. Sec. 1561(a)(3). NOTE: the same affidavit requirement does not apply to a subpoena for both testimony and production.

See also this online guide provided by the Sacramento Law Library www.saclaw.org/pages/busine...ness-records-subpoena.aspx

Cooley v. Superior Court (Greenstein) (2006), 140 Cal.App.4th 1039 The business records subpoena can only be used to obtain documents from persons who can execute the business records affidavit. "At first blush, it would seem that a person or entity that maintains records would also be the custodian of those records. Nevertheless, the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness. As such, execution of a section 1561 affidavit is more than simply a clerical task." ..."And as section 1561 now stands, the [person merely in possession of records] is unable to comply with subdivision (a)(4) and (5), and, thus, is not a [proper] custodian of the records sought."

Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688 [reporter's transcript is product of and not business record of reporter]

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 [C.C.P. 2025 notice provisions apply and notice must be given to some adverse party]

Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]

Monarch Healthcare v. Superior Court (2000),78 Cal.App.4th 1282 [3d party objections to production at depo; need not make a motion to quash or motion for protective order]
Naser v. Lakeridge Athletic Club (6/27/2014) , Cal.App.4th [Records deposition is a "deposition" for all purposes including recovery of costs]
Documents used at depo to refresh recollection [Ev.C §771}
International Insurance Co. v. Montrose Chemical Co.(1991), 231 Cal.App.3d 1367 [Calif. law governs parties at out of state depo of non-party & doc used to refresh recollection must be produced; sanctions awarded for both refusal to produce at depo& for frivolous appeal]

Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405 [privilege waived by voluntary disclosure]

Cf. Sullivan v. Superior Court (1972), 29 Cal.App.3d 64.[no production of privileged documents]

Filipoff v. Superior Court(1961), 56 Cal.2d473 [compelling witness to refresh recollection]
Segregation of documents by category
Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 820. [Prior law. Segregation not required when producing counsel agreed at hearing to assist in locating documents from 10 boxes. "The issue presented here--whether a party complies with such an order when he produces not only the designated documents but also others without segregating those designated--is one of first impression in California. We conclude that no all-encompassing rule can be promulgated to determine that issue. The question is basically one of fact: has the party against whom the order is issued acted so as to give the party obtaining the order reasonable access to the documents? The trial court on the record before it had no evidence from which it could conclude that reasonable access had been afforded. However, it did have the representation of Rosenthal's counsel that he would participate with Hunter's lawyer in arranging for that access as to all of the documents except the time summaries. Under these circumstances we do not find an abuse of discretion in the trial court's denial of the motion. The supervision of the conduct of discovery proceedings is peculiarly the province of the trial judge. We cannot assume at this point that if the joint efforts of counsel to segregate the documents come to naught the trial court will not permit the motion to be renewed or that it will act improperly upon the renewed motion."]

C.C.P. §2031 production attempt not bar to noticed production at deposition
Carter v. Superior Court(1990), 218 Cal.App.3d 994
See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [documents must be produced at corporate deposition even if produced previously]
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SPECIAL NOTICE REQUIREMENTS
See also this online guide provided by the Sacramento Law Library www.saclaw.org/pages/busine...ness-records-subpoena.aspx
Examples
personal records, C.C.P. §1985.3;
employment records C.C.P. §1985.6;
telephone records, C.C.P. §1985.3(f) [consent required]

Failure to comply with notice & timing requirements may void subpoena
Lantz v. Superior Court(1994), 28 Cal.App.4th 1839 [med records obtained without 1985.3 notice though actual notice provided by letter to counsel; tr ct denied motion for protective order and return of documents; Ct.Ap.re'vd for failure to give notice and for failure to apply the proper balancing test for privacy

Sasson v. Katash (1983), 146 Cal.App.3d 119 [docs of Plt in UD excluded at trial for failure to comply with C.C.P.§1985.3 notice & timing requirements when subpoened 4-6 days before trial; court also found docs to be irrelevant; judgment for plt aff'd.]
Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.
Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]
Custodian producing documents protected from liability by Litigation Privilege of Civ.C. Sec. 47(b)
Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.
Jacob B. v. County of Shasta (2007), 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 (April 05, 2007) Litigation privilege applies to and prohibits an action based on the constitutional right to privacy. Official writing a letter to be used in litigation is protected by the litigation privilege and cannot be sued for violating the right to privacy of a non-party. The Constitutional Right to Privacy is not absolute and must be balanced against the absolute litigation privilege of Civil Code 47(b).

Personal documents not limited to confidential docs
Sasson v. Katash (1983), 146 Cal.App.3d 119 [ lease in bank files protected]

PRIOR INVESTIGATION TO DETERMINE EXISTENCE & DESCRIPTION OF DOCUMENTS SUGGESTED BY COURTS

Calcor v. Superior Court(1997), 53 Cal.App.4th 216, 222

Adams v. Superior Court (1957), 49 Cal.2d 427, 433.

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 398.

Shively v. Stewart (1966) 65 Cal.2d 475, 482.

Pacific Auto Ins. Co. v. Superior Court (1969), 273 Cal.App.2d 61, at p. 70.

West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 419.

Cf. Kenney v. Superior Court (1967), 255 Cal.App.2d 106 at p. 110.["It would be unrealistic and time consuming, however, to require plaintiff first to exhaust all discovery processes to determine precisely what the hospital does possess fitting the prescription of the demand as a condition precedent to the issuance of the subpoena duces tecum."]
CONTENTS CASES CASE OUTLINE
SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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RELEVANCY TO SUBJECT MATTER
DISCOVERY STANDARD APPLIES
Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216,223-4 [party seeking discovery must provide evidence by declaration to support; specific facts relating to each category; not "mere generalities"]

Associated Brewers Distr. Co. v. Superior Court (1967) 65 Cal.2d 583, 587.

Shively v. Stewart (1966) 65 Cal.2d 475, 481.

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal. App.2d 61, 65.

Grannis v. Board of Medical Examiners (1971) 19 Cal.App. 3d 551, 565.
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DESIGNATION WITH REASONABLE PARTICULARITY
Pre Discovery Act cases apply regarding the designation requirement.
West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 419-420.
Designation requirements apply equally to a request for production and a subpoena duces tecum.
Calcor Space Facility v. Superior Court(1997) 53 Cal.App.4th 216,221

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 69.

Flora Crane Service Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 786.
Documents and things should be described with reasonable particularity and should not be so broad that the persons required to produce cannot determine whether the documents exist, are relevant, are privileged etc.
Calcor v. Superior Court(1997), 53 Cal.App.4th 216 at p.222 [facially detailed subpoena in essence asked for all documents on subject and required extensive search and effort to fit into categories]

Shively v. Stewart (1966) 65 Cal.2d 475, 482.["Reports and documents gathered by investigators and employees" -too broad, must show need and specificity beyond mere wish for all information in the adversary's files.]

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 70.[All records and correspondence between investigator and insurance company from date of accident to filing of complaint was "too broad."]

Flora Crane Services Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 783-787.[Condemns omnibus description e.g. "All financial statements, statements of assets and liabilities, journal entries, ledger books, bank statements and canceled checks."]

Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 565.[The principal reason for the specificity requirement is to adequately apprise the custodian of what records are desired and the requested identification may be defeated by generality of description."]

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 397.[". . . it is sufficient if they are identified by a description that can be reasonably understood by the adverse party."]

Union Trust Co. v. Superior Court (1938) 11 Cal.2d 449.
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POSSESSION, CUSTODY & CONTROL
Duty to compile available data & create document if not unduly burdensome
Person v. Farmers Insurance Group of Companies (1997), 52 Cal.App.4th 813
Possession of attorney for insurance company is possession of the defendant insured for purposes of C.C.P. 2031
Unger v. Los Angeles Transit Lines (1960) 180 Cal.App.2d 172, 175.

Clark v. Superior Court (1960) 177 Cal.App.2d 577, 579.
Possession etc. of corporate officer, partners: issue re jurisdiction over entity
Coopman v. Superior Court (1965) 237 Cal.App.2d 656.[If only personal jurisdiction over officer, can't compel production of corporate documents]

Boal v. Price Waterhouse (1985), 165 Cal.App.3d 806 [L.A. partner has custody of partnership docs in NYC]
Posession of subsidiaries
In re ATM Fee Antitrust Litigation, 2005 U.S. Dist. LEXIS 36195 (N.D. Cal. 2005) [Legal Control Test in Federal Court. Bank holding company must produce discoverable documents in possession of a wholly owned subsidiary.]
Plaintiffs rely on a Ninth Circuit decision that "[a] corporation must produce documents possessed by a subsidiary that the parent corporation owns or controls." United States v. International Union of Petroleum and Industrial Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir.1989). The Ninth Circuit stated this in dictum but in dictum that is cited by numerous courts throughout the United States for the same proposition, that for purposes of compliance with Rule 34, a parent company has control of documents in the custody and possession of its wholly owned subsidiary
See also In re Citric Acid Litigation, 191 F.3d 1090 (9th Cir.1999) (court affirmed the "legal control" test as the standard for a parent's obligation to produce documents in the possession and custody of its subsidiary)("Even if International Union does not conclusively settle the question, we conclude-consistently with all of our sister circuits who have addressed the issue--that the legal control test is the proper standard under Rule 45).[citations] Courts apply the legal control test to requests for documents under both Rule 34 and Rule 45. "A rule 45 subpoena, as well as a rule 34 document request, may reach only those documents within the possession, custody or control of the subpoenaed person.[citations]
The Ninth Circuit in both International Petroleum and in the Citric Acid case reiterated the law as reflected in other rulings throughout the U.S. See, e.g. Hubbard v. Rubbermaid, Inc., 78 F.R.D. 631 (D.Md.1978) (stating that the nonparty status of wholly owned subsidiaries does not shield their documents from production, since the crucial factor is that the documents must be in the custody, or under the control of, a party to the case); In re Investigation of World Arrangements, Etc., 13 F.R.D. 280 (D.D.C.1952) (holding that corporation has control over subsidiary and must produce subpoenaed documents); see also Advance Labor Service, Inc. v. Hartford Acc. & Indem. Co., 60 F.R.D. 632 (N.D.Ill.1973) (corporation required to produce books and records of sister corporation with same directors and shareholders), cited in International Union of Petroleum and Indus. Workers, 870 F.2d at 1452.
Proof of existence
Hill v. Superior Court (1974) 10 Cal.3d 812, 817 (criminal case).

Hinoiosa v. Superior Court (1976) 55 Cal.App.3d 692, 696 (criminal case).

Lemelle v. Superior Court (1978)77 Cal.App.3d 148,157. (Fn. l, criminal case.)
DUTY TO CONDUCT REASONABLE INVESTIGATION
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The appellate court made clear that a "reasonable search" for documents had to be conducted and documents had to be reproduced at deposition: "…the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.".
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OBJECTIONS TO PRODUCTION:
ALTERNATIVE MEANS OF OPPOSING
Objection per C.C.P. §2025.410 prior to deposition re lack of particularity required by C.C.P. §2025..220(a)(4)
Motion for protective order per C.C.P.§2025.410(c) provides automatic stay of deposition
See Practice Points re duty to appear for deposition

Motion to quash subpoena duces tecum prior to deposition
Filipoff v. Superior Court (1961) 56 Cal.2d 443

Johnson v. Superior Court (1968) 258 Cal.App.3d 829. (C.C.P. 1987.)

Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [Motion to quash or appearing at depo and objecting to production are alternatives; Motion to quash not required or a prerequisite to raising objections on a motion to compel production]
Slagle v. Superior Court (1989), 211 Cal.App.3d 1309 [ motion may be brought after production date ]

Protective order limiting scope of deposition prior to deposition
Filipoff, supra

Johnson, supra.

Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282
Suspend deposition when production is sought and seek protective order
Filipoff, supra.
Refuse to produce at deposition and require party seeking production to move and obtain court order
Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [3d party can object at time of depo need not make motion to quash; 1987.5 is permissive]

Johnson, supra.

Roberts v. Superior Court (1973) 9 Cal.3d 330,342.("There is nothing to require an assertion of the privileged nature of subpoenaed documents prior to a refusal to disclose the documents made in response to the subpoena." Subpoena to plaintiff's psychiatrist.)
CONTENTS CASES CASE OUTLINE
SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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COMPELLING PRODUCTION: GOOD CAUSE
Showing of good cause with subpoena to nonparty no longer required [C.C.P. §2020.410, 2020.510]
Showing of good cause required on motion to compel production by party [C.C.P. §2025.450(b)(1); Cf §2025.480]; not required with notice; affidavit not expressly required.

See Production below re cost shifting

Showing of good cause
Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819.

Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 836.
["Similarly, an affidavit wherein the material facts necessary for the issuance of the subpoena duces tecum are alleged only on information and belief without setting forth supporting facts is insufficient."]

Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564.["The facts that must be set forth in the affidavit other than the statutory requirements, may not be alleged on information and belief without setting forth facts in support of said information and belief." (Distinguishing Kenney v. Superior Court, infra.)]

Kenney v. Superior Court (1967) 255 Cal.App.2d 106, 108-110. [Mere legal conclusion that documents contain relevant and material evidence upon the issue of negligence would be insufficient. ". . . as a practical matter, how is plaintiff ever to learn of the existence of these perhaps important sources of evidence vital to his cause except through information and belief?"]

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 67.[". . . to secure discovery by use of a subpoena duces tecum, there must be a showing of more than a wish for the benefit of all information in the adversary's files . . . the trial court must be afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of materiality and good cause.")

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 396.["The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material."]

Adams v. Superior Court (1957) 49 Cal.2d 427, 433.

Elmore v. Superior Court (1967) 255 Cal.App.2d 635, 638.
CONTENTS CASES CASE OUTLINE
Examples of Good Cause
Although unavailable, witnesses couldn't recall content of their written statements and had not received copies.
Beesley v. Superior Court (1962) 58 Cal.2d 205.(Independent witnesses.)

Clark v. Superior Court (1960) 177 Cal.App.2d 577.(Plaintiff statement to insurance company investigator.)

Southern Railway Co. v. Lanham (5th Cir. 1968) 403 F.2d 119, 128.(Mere lapse of time in itself may be sufficient to satisfy good cause requirement for production of witness statement.)

Documents necessary to refresh recollection
Christy v. Superior Court (1967) 252 Cal.App.2d 69, 71(Statements of parents of minor plaintiff made to insurance company investigator.)

Fuss v. Superior Court (1969) 273 Cal.App.2d 807.
(Defendant required documents in order to refresh plaintiff's recollection..)

Difficulty or inability to obtain witness statements obtained by opposing party due to geographic dispersion.
Greyhound v. Superior Court (1961) 56 Cal.2d 355.[Protect against surprise and prepare for examination of possible witness.]

Suezaki v. Superior Court (1962) 58 Cal.2d 166.[(Movies of plaintiff taken by defendant's investigator.]
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Lack of alternative sources may be a factor but is not a prerequisite for production.
Associated Brewers Distr.Co. v. Superior Court (1967) 65 Cal.2d 583, 588.

People v. Younger (1970) 5 Cal.App.3d 575

Greyhound v. Superior Court (1963) 56 Cal.2d 355, 388.

Bolles v. Superior Court (1971) 15 Cal.App.3d 962.

Southern Railway Co. v. Lanham (5th Cir. 1988) 403 F.2d 119, 127.["It does not follow, however, from a holding that the above factors were sufficient to establish good cause that anything less must be considered insufficient and that the movant is required in every case to show why he was unable to obtain statements on his own."]
Consequences of inadequate affidavit
C.C.P.§1987.5:"The service of a subpoena duces tecum is invalid unless at the time of such service a copy of the affidavit upon which the subpoena is based is served on the person served with the subpoena." Section does not apply to C.C.P. §2020.410 but statute silent re C.C.P. §2020.510. Affidavit re "good cause" is not required for either nonparty deposition per §2020.410 or .510

Johnson v. Superior Court (1968), 258 Cal.App.2d 829, 835.
("The clear import of all the cases dealing with the subject is that a subpoena duces tecum has no force or effect if the affidavit required by 1985 of the Code Civ.Proc. does not comply with the provisions of that section.")

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 68. ("Deficiencies in the required affidavit cannot be supplied by allegations of facts in this court.")
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PRODUCTION
Production, marking & retention of documents
Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819-820.[Re segregation of documents by category; must provide reasonable access to documents]
Copying costs [Evid.C. §1563(b)(4)]
computer printout costs of non party
In re marriage of Stephens (1984), 156 Cal.App.3d 909 [H successfully challenged $40 computer cost in $45.40 bill]
Extraordinary costs may be shifted to requesting party:
San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002)95 Cal.App.4th 1400 , 116 Cal.Rptr.2d 65. [In dictim citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."TrCt. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]
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SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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SANCTIONS (see generally Sanctions Case Outline)
Findings / Court Discretion
Findings required when sanctions denied [note change in statutory language in 1986]
Do v. Superior Court (2003)109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734 "The subdivision further states: 'If this motion is granted, the court shall also impose a monetary sanction under Section 2023 against the deponent . . ., unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' (Italics added.) The trial court made no such finding here. Therefore, considering the mandatory language of the statute, it would seem petitioner is entitled to sanctions."]

California Shellfish v. United Shellfish(1997) [express findings only required if sanctions denied]

Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.[Findings required by prior law re "without substantial justification" based on statutory language at time]
Discretion/Mandatory
C.C.P. §2025.450(c)(1) provides for denial of sanctions if
1. act with substantial justification
2. circumstances make imposition unjust
Pember v. Superior Court (1967), 66 Cal.2d 601.[Sanctions under prior law were discretionary even if refusal to answer was without substantial justification]
No appearance [C.C.P. §2025.430 et seq variations]
Party noticing depo [C.C.P.§2025.430)
Poe v. Diamond (1987), 191 Cal.App.3d 1394 [prior law; not issue on appeal]
Failure to secure attendance [C.C.P. §2025.440]
Andrews v. Superior Court (1960), 183 Cal.App.2d 756, 758.[Failure to proceed with noticed deposition and to secure attendance of witness: C.C.P. 2019(g).]

Rosen v. Superior Court (1966), 244 Cal.App.2d 586.(Abuse of discretion to deny sanctions when noticed New York deposition date changed without notice to attorney. Sanctions for failure to secure attendance and proceed with notice depo]
Crippen v. Superior Court (1984), 159 Cal.App.3d 254, 261. [Trial court imposed "sanctions against defendants for noticing a deposition without serving the deponent with a subpoena and thereafter failing to give petitioners' counsel notice of this oversight. As a consequence, petitioners' counsel had traveled to San Bernardino only to find that there was to be no deposition." Issue was raised in argument and the Court of Appeal stated "The latter sanctions were clearly justified under the circumstances, and no reason exists to vacate those sanctions. Consequently, the sanctions imposed upon defendants shall stand."]
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Party deponent nonappearance [C.C.P. §2025.450]
See below re failure to produce competent witness at corporate deposition

Leko v. Connerstone Building Inspection Service (2001), 86 Cl.App.4th 1109 [Duty to contact after no show includes a duty to attempt to resolve issues without motion; attorney sanctioned for unnecessary motion to compel attendance when deponent was willing to reset the deposition

Housing Authority v. Gomez (1972) 26 Cal.App.3d 366.[Answer stricken when no appearance at stipulated or court ordered deposition; unsuccessful imposition of lesser sanction not absolute prerequisite to default.]

Kaplan v. Eldorado Ins.Co.(1976) 55 Cal.App.3d 587,1592.[Unilateral cancellation of deposition is one factor to be considered but is insufficient by itself to require dismissal.]

Crummer v. Beeler (1960) 185 Cal.App.2d 851.[Too drastic to strike pleading when party is able and willing to appear for depositions.]

Scheerer v. Plaza Marine Coml. Corp. (1971) 16 Cal.App.3d.[Strike pleading for failure to appear at two depositions and pretrial conference.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579.[Advice of counsel not a defense to monetary sanctions.]
Non-party deponent nonappearance
Deponent served with subpoena: contempt, $500 & damages [C.C.P. §§2025.440(b); 2020.240; 2023; 1992 damages]
Terry v. SLICO (2009) , 175 Cal.App.4th 352 [Jun. 25, 2009.] A non-party subpoena issued for a witness to attend and produce documents. No objection was made and the deponent did not appear. A motion to compel attendance and sanctions was opposed based on lack of service of an affidavit showing "good cause." The motion was granted and $2265 sanctions awarded. The appellate court affirmed and awarded costs to the party against the non-party.
Person v. Farmers Ins. Group (1997), 52 Cal.App.4th 813 [$3000 awarded for refusing to create & produce doc until obtain lien for fees]

Lund v. Superior Court (1964) 61 Cal.2d 698.[contempt of court only recourse per former C.C.P. 2034(b)]

Zinn v. Superior Court (1980) 108 Cal.App.3d 583, 587.[Compelling attendance at deposition is a "lesser penalty."]

Cf. In re Lemon (1981) 113 Cal.App.3d 769.(Monetary sanctions against non-party deponent for failure to answer questions at deposition at which he appeared.)

Chapman v. Superior Court(1968), 261 Cal.App.2d 194 [receptionist/bookkeeper contempt annulled since not "custodian" of doctor's records and not served in capacity of custodian per notice; court also questions propriety on subpoena to "custodian"]
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Failure to Answer or Produce Document
Procedure
Personal service of papers on nonparty deponent [Cal.Rules of Court, Rule 3.1346]
Oral or written notice of motion [C.C.P. §2025.480]
La Bella v. Kaiser Foundation Health Plan.(1977), Inc. 72 Cal.App.3d 499. Non-party served with subpoena duces tecum objected to production on privilege grounds.
“Now that the trial court has overruled Dr. Detel's claim of privilege, he can either comply or subject himself to a contempt order. Such an order, if made, is reviewable in this court by habeas corpus or by writ of review. That is the only procedure by which a nonparty witness may secure relief from a discovery order.
“The appeal is dismissed.”
Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.

Cf. Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.
Objections
Sanctions for objections without substantial justification at deposition.
In re Lemon, at p. 782.

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing client not to answer on relevancy grounds; only permissible to instruct on privilege issues; otherwise seek protective order and risk sanctions]
Failure to produce competent witness at corporate deposition
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The court criticized the witnesses lack of familiarity with basic documents, policy and general knowledge and procedures. The court noted that the statute does not obligate a corporation to produce former employees. In paraphrasing the statute, it stated that the corporation's "duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation." The court also required documents to be produced at the deposition even if produced previously. The writ issued for the return of the witnesses to the deposition.]

Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [When expense raised as objection to providing information re prior similar claims, plaintiff sought a corporate deposition re claims processing, recording, storage and retrieval. The claims director could not answers questions on the subject and plaintiff requested a person who could respond. Defendant refused despite the fact plaintiff had traveled to the corporate offices. Under FRCP 30(b)(6) the corporation had a duty to produce and prepare the witness to give "complete, knowledgeable and binding answers". The corporation had a duty to substitute a proper witness(p.126). The failure to designate was a failure or refusal to answer deposition questions justifying appropriate sanctions.]
Advise of counsel no defense
In re Lemon (1981) 113 Cal.App.3d 769. [Sanctions against non-party deponent and his counsel.]

In re Bongfeldt (1971) 22 Cal.App.3d 465.[Acting on advice of counsel is no defense to contempt for failure to comply with court order to answer questions.)
Failure to produce document per EC §771
International Insurance Co. v. Montrose Chemical Corp.(1991), 231 Cal.App,3d 1367
Failure to comply with court order
MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 290.

In re Bongfeldt (1971) 22 Cal.App.3d 465.[Acting on advice of counsel is no defense to contempt for failure to comply with court order to answer questions.]

Andrews v. Superior Court(1960), 183 Cal.App.2d 756,758
La Bella v. Kaiser Foundation Health Plan Inc. (1977), 72 Cal.App.3d 499. Non-party served with subpoena duces tecum objected to production on privilege grounds.

Priority disputes
Flynn v. Superior Court (1979) 89 Cal.App.3d 4916.(Sanctions and contempt against attorney.)
CONTENTS CASES CASE OUTLINE
Against attorney
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109 [attorney sanctioned for unnecessary motion pursuant to C.C.P. §2023(a) ]

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing client not to answer on relevancy grounds]

Sobado v. Morago(1987)189 Cal.App.3d 1 [128.5 sanctions rev'd dictum re "...sanctions may be appropriate if an attorney offers meritless legal advise to a witness which results in a delay of the proceedings"]

Andrews v. Superior Court (1960) 183 Cal.App.2d 756.[Contempt and monetary sanctions against attorney pursuant to Code of Civil Procedure sanction 2034(b)(2)(iv) require a finding that the attorney advised disobedience of court order.]

Weinkauf v. Superior Court (1966) 64 Cal.2d 662, 665 [Sanctions against attorney for client's willful failure to answer interrogatories pursuant to Code of Civil Procedure section 2034(d) doesn't require finding that attorney advised disobedience and burden of proof is on attorney to show he was blameless.]

Cf. In re Lemon (1981) 113 Cal.App.3d 769, 782.[To justify such a statutory award directly against counsel, the evidence must show that his conduct is culpable.Citing Weinkauf]

Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.[Attorney must be given notice and opportunity to be heard. Former C.C.P. §2034(d) requires noticed motions.]

In re Bongfeldt (1971) 22 Cal.App.3d 465, 476.
Third party awards
Sanctions to non-party witness
Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 514.
Sanctions to County [C.C.P. 177.5, C.R.C.Rule 2.30(b)]
Caldwell v. Samuel Jewelers (1990), 222 Cal.App.3d 970
In limine motions
Mardirossian & Associates, Inc. v. Ersoff (2007) , Cal.App.4th . The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.'" (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669 (Kelly).) ***
His deposition testimony is not inconsistent with his trial testimony on that point; but, even if it were, the trial court properly concluded such inconsistency was to be evaluated by the trier of fact. (Kelly, supra, 49 Cal.App.4th at p. 673.) As our Division Four colleagues recognized in Kelly, although a party may be precluded from introducing evidence contrary to its response in a request for admission (Code Civ. Proc., § 2033.410, subd. (a)), deposition testimony does not serve the same purpose as a request for admission, which is aimed primarily "at setting at rest a triable issue so that it will not have to be tried." (Kelly, at p. 673.) Accordingly, "[i]t is a misuse of a motion in limine" to attempt to compel a witness or a party to conform his or her trial testimony to his or her deposition testimony. Trial testimony may be impeached by inconsistent deposition testimony, but absent an abuse of the discovery process, such testimony should not be precluded. (Id. at p. 672.)

CONTENTS CASES CASE OUTLINE
SAN FRANCISCO DISCOVERY
CALIFORNIA DISCOVERY
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CORRECTION OF TRANSCRIPT [C.C.P. 2025.520]
Note statutory changes and use of usual stipulations.
George v. Double D. Foods (1984), 155 Cal.App.3d 36,45

USE OF DEPOSITION [C.C.P. §§2025.620, 2025.410]
Chavez v. Zapata Ocean Resources (1984), 155 Cal.App.3d 115 [Motion to suppress properly denied. Transcript regular on its face; reporter certification; both had copies; note 1976 changes in statute re earlier cases]

Bailey v. Superior Court (1977), 19 Cal. 3d 970at p.974 ["In Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688 [312 P.2d 51], the court held that the written deposition of a witness who had died before he read and signed it could not be read into evidence because it had not been properly authenticated. The court also stated that the term "deposition" is "now confined in meaning to testimony delivered in writing." (Id., at p. 692; see also People v. Hjelm (1969) 224 Cal.App.2d 649, 654-655 [37 Cal.Rptr. 36].)"]

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 637 [Def could not use co-defendant's expert's deposition at trial when plaintiff had not cross examined because C.C.P. §2034(f)(2)(C) includes a rep that expert will testify at trial and C.C.P. §2025(u)(4) applies to use of expert depositions at trial if notice given with deposition]

D'Amico v. Board of Med.Examiners (1974), 111 Cal.3d 1

Sprague v. Equifax (1985), 166 Cal.App.3d 1012 [exclusion of depo at trial when tr ct finds a lack of fair opportunity to cross examine is not abuse of discretion]
Pollard v. Pollard (1959), 166 Cal.App.2d 698 at p.705 ["Appellant and trustor commenced the taking of trustor's deposition in a proceeding to perpetuate testimony. Their attorney substantially completed direct examination, and then asked for a continuance to permit his attendance at a trial. He was to notify counsel for the other parties of a convenient date to resume the deposition. Trustor died before such notice was given. Thus there was no cross-examination, and there is some question whether even the direct examination was completed. Nevertheless, the deposition was offered in evidence in this trial. Objection was sustained, and appellant claims error in this ruling. The authority relied upon by appellant (Scott v. McCann, 76 Md. 47 [24 A. 536]) specifically limits admission of a partially completed deposition to cases where the cross-examination "has not in any way been prevented" by the party producing the witness. We find no abuse of discretion in refusing admission of the partial deposition here."]
CONTENTS CASES CASE OUTLINE
TRANSCRIPT OF DEPOSITION
Payment of fees required no matter how unconscionable
Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688

See C.C.P. §2025.510
Las Canoas Co., Inc. v. Kramer (2013), 216 Cal.App.4th 96 Reasonableness of court reporter fees for transcript copy must be challenged in pending action and not subsequent action. . “Here we hold that, absent extraordinary circumstances, the court in the action in which the dispute arises is the only court to resolve the issue.”
Serrano v. Stefan Merli Plastering Co., Inc. (2008),162 Cal.App.4th 1014 B193502. Second Dist., Div. Three. May. 7, 2008 Trial Court can determine if a court reporter fee charged a non-noticing party is reasonable and, if not, determine the appropriate amount and order payment on appropriate terms.
Expert depositions were taken a month before trial and the non-noticing party requested a copy of the transcript but objected to the reporter's fee. “The [parties] agreed that the court would determine "the validity and reasonableness" of the expedited service fee and that the ruling would govern the fees for all other deposition transcripts in this action.” The trial court expressed the opinion that the reporter's fee was unconscionable but determined it could not determine the fee based on Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App. 4Th 688. The Court “remanded with directions to the trial court to (1) determine whether the expedited service fees charged by Coast for copies of deposition transcripts were reasonable, and (2) if any of those amounts were unreasonable, order Coast to refund to the Serranos the amounts paid by the Serranos in excess of the reasonable charges.
“Our holding is limited to circumstances where (1) there is no relevant contractual relationship between the deposition reporter and the non-noticing party relating to the cost of a copy of the deposition transcript and (2) court intervention is required to ensure that the deposition reporter provide a copy of a deposition transcript to a non-noticing party in a pending action where the reporter has either refused to provide such a copy or is willing to do so only on the condition that the non-noticing party pay what it believes to be an unreasonable fee.”