THOMAS VS ANIMAL HOSPITAL OF EAGLE GLEN

discovery, the identity of a government employe whose alleged negligence is made the basis for vicarious liability under section 815.2, and ... such an impracticable rule would be consistent with the legislative intent in enacting that statute. [Citation.] (C.A., supra, 53 Cal.4th at 872, citing Sen. Legis. Com. com., reprinted at 32 West’s Ann. Gov. Code (1995 ed.) foll. § 815.2, p. 179 [“Under this section, it will not be necessary in every case to identify the particular employee upon whose act the liability of the public entity is to be predicated”].)

The demurrer is overruled.

4. CASE # CASE NAME HEARING NAME THOMAS VS ANIMAL MOTION TO COMPEL DEPOSITION CVRI2503346 HOSPITAL OF EAGLE ANSWERS GLEN Tentative Ruling:

The Amended Declaration of Ben Twisk (“Amended Twisk Decl.”) shows compliance with the meet-and-confer requirement.

At the June 16, 2026 deposition of Defendant Christine Farrar, defense counsel instructed the witness not to answer four separate lines of proper questions. The centerpiece of the improper instructions concerns two video recordings that Plaintiff made of a December 16, 2024 disciplinary confrontation. Defense counsel took the position that the recordings are “confidential communications” that violate Penal Code section 632, and on that basis instructed Ms. Farrar not to answer any question “related to the video, the contents of the video,” or the second recording. (Christine Farrar Depo. 89:1-18; 90:12-22.)

The instruction was improper for two reasons. First, the recordings are not “confidential communications” within the meaning of Penal Code section 632, because the recorded conversations occurred in circumstances in which the parties could reasonably expect to be overheard. One conversation occurred in an open, public shopping-center patio and, for the second recording, the public lobby of a veterinary clinic. Ms. Farrar’s own testimony, and that of Plaintiff, confirm as much. Second, even if section 632 applied (it does not), a section 632 objection is not a privilege, a court-ordered limitation, or a basis to suspend the deposition for a protective order, which are the only three grounds on which counsel may properly instruct a deponent not to answer. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-1015.)

The Opposition never responds to the above. It does not cite Stewart or section 2025.460, and it identifies no privilege, no court-ordered limitation, and no motion for a protective order, because Defendants did not seek a protective order. Instead, Defendants argue only that the recordings are inadmissible. Admissibility is a question that this Court decides on a proper record and is not a basis for counsel to foreclose the examination. "Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition." (Code Civ.

Proc. § 2025.460(c).) The Court in Stewart put it aptly, "[i]n other words, deponent's counsel should not even raise an objection to a question counsel believes will elicit" the types of testimony referenced in Section 2025.460, subdivision ©. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.)

Per Plaintiff notes that an argument left unanswered in opposition is conceded, and the concession resolves the recordings issue: whatever the ultimate admissibility of the videos, Ms. Farrar was required to answer. That she has already acknowledged the recording on the record (“You’ve got a video of it.” (Exhibit A 99:16)), and that defense counsel stipulated to no waiver (Id. at 90:3-22), only confirm that there is no basis to withhold the testimony.

As noted by Plaintiff, even on the merits, the recordings are not “confidential communications.” The test for confidentiality is objective: whether, under the circumstances, a party could reasonably expect that the conversation was not being overheard or recorded. (Pen. Code, § 632, subd. (c); Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488.) Defendants’ own authority is to the same effect. The undisputed testimony forecloses any such expectation here. The first conversation took place at the outdoor Subway tables in the shopping center, in the evening, in an unfenced area with no walls, directly in front of an open Subway, an Italian restaurant, and a sushi restaurant, where Ms.

Farrar did not speak in a hushed tone and was “literally yelling,” and where a passerby in fact walked up to ask for directions during the confrontation. (Exhibit A 77:19-25; 92:1-93:4; 103:5-104:23; 107:23-108:25; Exhibit B 162:23-164:15; 170:18-173:6.) Ms. Farrar could not say whether anyone was in the surrounding restaurants or whether cars were present, and she never checked. (Exhibit A 109:6-110:22.) The second conversation occurred in the clinic lobby, open to the public, in front of two waiting clients and a receptionist (none of whom were parties to the conversation), and surrounded by windows. (Exhibit B 174:20-177:20.)

Defendants imply section 632 excludes only communications made at a “public gathering,” but the statute independently excludes any communication made “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Pen. Code, § 632, subd. (c).) That is what happened here.

Applying the objective test, the Court of Appeal has held that recordings of confrontational conversations in public places are not confidential communications. In Malinowski v. Martin (2024) 104 Cal.App.5th 559, 572, the court held that recordings were not confidential because “the communications were made during supervised exchanges that took place in a public parking lot during daylight hours, and the parking lot was adjacent to businesses and public buildings... the commotion during the exchanges often attracted the attention of bystanders... [T]he circumstances were such that the parties to the exchanges could reasonably expect their statements to be overheard at any time by members of the public who happened to be nearby.”

Likewise, in People v. Pedersen (1978) 86 Cal.App.3d 987, 994, the court approved the admission of a surreptitiously recorded confrontation in which several principals questioned an employee about alleged wrongdoing, holding the meeting was not a confidential communication, despite that communication taking place in a private office. Here, Defendants’ try to distinguish Malinowski and Pedersen but as noted by Plaintiff, this effort only confirms Plaintiff’s position rather than rebutting it. Defendants say Malinowski turned on “court-ordered supervised visitation exchanges where the parties knew they were being recorded.”

But the Malinowski court’s holding rested on the public location and the resulting expectation of being overheard: the communications were made “in a public parking lot ... adjacent to businesses and public buildings,” where “the parties to the exchanges could reasonably expect their statements to be overheard at any time by members of the public who happened to be nearby.” (Malinowski v. Martin (2024) 104 Cal.App.5th 559, 572.) Those are the circumstances here. Whether a party subjectively knew that a recording was being made is beside the point; section 632 turns on the objectively reasonable expectation that a communication “may be overheard or recorded,” not on knowledge of the recording.

Defendants concede that Pedersen found no confidential communication even though the recorded confrontation occurred in a private office. (People v. Pedersen (1978) 86 Cal.App.3d 987, 994.) If a confrontation in a private office is not confidential, a confrontation at public restaurant tables and in a public clinic lobby with non-participant bystanders present is not either. Next, Defendants’ reliance on what the video does or does not depict is misplaced. That the recording does not show bystanders or a receptionist says nothing about whether third parties could reasonably be expected to overhear; the objective inquiry looks to the circumstances of the conversation, not to the camera’s field of view.

Nor may Defendants rely on Ms. Farrar’s subjective intent to conduct the conversation where coworkers would not overhear. A subjective hope of privacy does not create an objectively reasonable expectation of privacy, and it is contradicted by her own testimony as well as Plaintiff’s. (Exhibit A 92:16-23; 96:23-97:4.) Because the recordings are not confidential communications, and because, in any event, a section 632 objection cannot support an instruction not to answer, Plaintiff is entitled to an order compelling Ms.

Farrar to answer questions authenticating and addressing both recordings.

Defendants now contend that Plaintiff produced the recordings shortly before the deposition and thereby engaged in "deposition by ambush." (Defendants' Opposition 2:23.) The argument fails. First, the timing of a document's production is not a permissible basis for an instruction not to answer. (Stewart, supra, 87 Cal.App.4th at pp. 1014-1015.) There is likewise no rule that a deponent may answer questions only about documents her attorney has reviewed in advance. A witness may be examined about a document produced at or before the deposition regardless of whether opposing counsel has previously studied it.

Further, Plaintiff’s premise is factually baseless. The recordings were produced before Ms. Farrar's deposition, not during it, and Plaintiff's counsel then gave defense counsel more than an hour to review them during the lunch recess. (Exhibit A 84:5-25.) The combined running time of both videos is less than three minutes. (Exhibit D; Exhibit E.) Defense counsel could have reviewed the recordings before the deposition and elected not to. Plaintiff should not be penalized, and Ms. Farrar's testimony should not be withheld, because defense counsel was unwilling to spend fewer than three minutes watching the videos before examining the witness about them.

Defendants respond to the hearing-condition instruction with a constitutional-privacy balancing analysis. Every person enjoys a constitutional right to privacy with respect to his or her medical condition. (Cal. Const., art. I, § 1.) In assessing whether constitutional privacy protections apply, courts consider whether (1) a legally protected privacy interest exists, (2) the individual has a reasonable expectation of privacy, and (3) the challenged conduct constitutes a serious invasion of that interest. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37; Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Once a protected interest is established, the court must carefully balance the right to privacy against the need for disclosure. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.)

Here, the balance favors disclosure. Ms. Farrar injected her hearing into the record, testifying she could not have overheard the conversation if she walked out of the nearby Subway “[b]ecause I have a hearing problem,” and confirming that she has medical records of the condition. (Exhibit A 105:16-20.) Having offered her hearing as affirmative evidence on a central section 632 question, she placed it directly at issue, and her ability to perceive her surroundings is plainly relevant and discoverable. (Code Civ. Proc., § 2017.010.) Plaintiffs are right that Defendants’ argument that the recording itself depicts the volume of the conversation goes to the weight of the evidence, not to its discoverability, and it concedes that audibility is a live and relevant issue.

Plaintiff inquired of Mrs. Farrar whether employees who voted on the alternative workweek schedule in ~ 2021 were compensated “for their time by clocking in on the ... time clock system ... .” (Twisk Decl., Ex. A, pp. 149:16-18, 155:1-3.) Defense counsel invited Plaintiff to make an offer of proof regarding relevancy given that: (1) Mrs. Farrar was not employed at the time the vote commenced; in fact, she was not hired until ~ three years later, (2) the compensation of employees in connection with the vote does not have any bearing on whether an alternative workweek is lawful, and (3) Plaintiff is not pursuing a representative wage and hour action on behalf of any other employee. (Id., pp. 155:1- 156:13.) Plaintiff, however, declined to provide any explanation for the relevancy of the subject matter. (Id.)

Defendant contends Plaintiff’s line of questioning constitutes an improper “fishing expedition” that has no bearing on this present action and is not reasonably calculated to reasonably lead to admissible evidence. Relevance is not a permissible ground for an instruction not to answer. (Stewart, supra, 87 Cal.App.4th at pp. 1014-1015.)

Defendants argue Ms. Farrar answered the fact-specific questions and cannot be compelled to answer a “hypothetical.” But the objection actually made at the deposition, that the witness is not here as an expert, is a form and relevance objection, and neither authorizes an instruction not to answer. (Stewart, supra, 87 Cal.App.4th at pp. 1014- 1015.) Whether a layperson may opine that a particular comment is mocking goes to the weight of the testimony and is preserved for trial; it is not a basis to refuse to answer at all. The question bears directly on Plaintiff’s pregnancy-discrimination and harassment claims and is discoverable. (Code Civ. Proc., § 2017.010.)

The Court “shall impose a monetary sanction ... against any party, person, or attorney who unsuccessfully ... opposes a motion to compel an answer ... unless it finds that the one subject to the sanction acted with substantial justification.” (CCP § 2025.480(j).) Substantial justification means a position “clearly reasonable because it is wellgrounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.) Defendants’ instructions were neither. They rested entirely on inadmissibility, relevance, privacy, and form objections that, as a matter of settled law under section 2025.460 and Stewart, do not authorize an instruction not to answer, a rule the Opposition does not acknowledge, let alone distinguish.

The late-production theory supplies no justification either: it is not a recognized basis for an instruction not to answer; defense counsel had an opportunity to review the videos prior to deposition, but elected not to; and Plaintiff's counsel graciously provided defense counsel more than an hour to review the videos during the lunch break. Defense counsel still issued an instruction not to respond. Plaintiff was compelled to prepare this Motion, review the Opposition, prepare the Reply, and prepare for hearing, all as a result of Defendants' unjustified discovery conduct.

The requested sanction is $5,000.00. Mr. Twisk declares his hourly rate is $400 per hour and asks for $5,000 in sanctions but does not break down the amount in any way. The $5,000 fee asks at a rate of $400 per hours results in 12.5 hours of attorney time. However, this is not noted in the Amended Decl. of Twisk. A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (CCP § 2023.040.)

The Court awards a reduced reasonable amount of $2,000 ($400 per hour for 5 hours).

The motion is granted, and the court awards sanctions in the reduced reasonable amount of $2,000. The court will signed the proposed order, amending only the amount of sanctions from $5,000 to $2,000.