In People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, the Court considered a novel scenario in which a trial court denied a city's motion for a protective order that would have barred a dispensary operator from testifying or offering evidence on topics he earlier refused to discuss at his deposition based on his Fifth Amendment privilege.
The trial court then inexplicably and summarily excluded the defendant's evidence opposing summary judgment.
Specifically, without a hearing and despite denying the protective order, the court granted the city's request under Evidence Code section 352 at summary judgment to strike the operator's declarations and evidence opposing summary judgment, which were directly relevant to key areas in dispute. (Id. at p. 1031.)
The Court explained section 352 "furnished no basis to exclude Holistic Health's evidence, and the trial court abused its discretion by effectively granting discovery sanctions without a motion or a hearing on the motion." (Ibid.)
Drawing on A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554 (A & M Records) and Fuller v. Superior Court (2001) 87 Cal.App.4th 299 (Fuller), the Court explained those cases "illustrate the established procedure that a trial court must consider a protective order or otherwise hold a hearing to evaluate the important interests at stake before excluding testimony or other evidence when a defendant asserts the Fifth Amendment in a civil trial." (Holistic Health, supra, 213 Cal.App.4th at p. 1031.)
Thus, in A & M Records, the plaintiff obtained a protective order under which the trial court ordered the recalcitrant defendant "to turn over the requested documents by a specified date before trial, or the defendant would be barred from introducing them at trial, and the court also precluded the defendant '"from testifying at trial respecting matters and questions . . . he refused to answer at his deposition.'" " (Holistic Health, at p. 1031.)