Judge: Anne Richardson, Case: 20STCV46525, Date: 2023-07-10 Tentative Ruling

Case Number: 20STCV46525    Hearing Date: July 10, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Howard Jian sues Defendant California State Polytechnic University, Pomona (Cal Poly) and Does 1 through 50 pursuant to a December 4, 2020 Complaint alleging claims of: (1) FEHA Discrimination Based on Disability; (2) FEHA Discrimination Based on Race; (3) FEHA Discrimination Based on Age; (4) FEHA Discrimination Based on Religion; (5) FEHA Discrimination Based on National Origin; (6) FEHA Harassment Based on Disability; (7) FEHA Harassment Based on Race; (8) FEHA Harassment Based on Age; (9) FEHA Harassment Based on Religion; (10) FEHA Harassment Based on National Origin; (11) FEHA Retaliation; (12) FEHA Failure to Prevent Retaliation; (13) FEHA Failure to Prevent Discrimination; (14) FEHA Failure to Prevent Harassment; (15) FEHA Failure to Accommodate; and (16) FEHA Failure to Engage in the Interactive Process.

Motion at Issue

On March 18, 2022, Cal Poly’s counsel noticed an April 27, 2022 deposition with request for production of documents on Plaintiff Jian.

On April 25, 2022, after several attempts to reach Plaintiff’s counsel, Cal Poly’s counsel was informed that the deposition would likely not go forward, which Plaintiff’s then-counsel (Gary Carlin) confirmed on April 26, 2022, providing alternate deposition dates in May 2022.

No deposition took place on April 27, 2022.

Counsel met and conferred regarding new deposition dates between May and September 2022, with Gary Carlin only responding to preferring mediation when Cal Poly’s counsel indicated Cal Poly’s intention to unilaterally set a new deposition. The mediation was ultimately set for October 13, 2022.

On October 12, 2022, Cal Poly’s counsel noticed an amended deposition notice with request for production of documents on Plaintiff Jian, with the deposition set for October 27, 2022.

On October 15, 2022, Gary Carlin objected to the deposition based on the unilateral setting thereof but failed to provide alternative deposition dates, in response to which Cal Poly’s counsel requested alternative deposition dates on at least two occasions.

On October 19, 2022, Gary Carlin notified Cal Poly’s counsel of availability in November 2022, with Cal Poly’s counsel replying with requests for a definite date at least four times between October 19, 2022 and November 2, 2022.

No deposition took place on October 27, 2022.

On November 2, 2022, Mr. Carlin’s office proposed deposition dates of December 9, 2022 and December 16, 2022, with Cal Poly’s counsel accepting the December 9, 2022 deposition date and requesting a second deposition session, which counsel agreed to set for three or four weeks after the initial deposition session.

On November 15, 2022, Cal Poly’s counsel served a second amended deposition notice with request for production of documents on Plaintiff, with the deposition set for December 9, 2022.

On December 5, 2022, Mr. Carlin’s office emailed Cal Poly’s counsel to cancel the deposition based on a scheduling conflict but failing to provide alternate deposition dates.

On December 5 and 6, 2022, Cal Poly’s counsel emailed Gary Carlin’s office to request a deposition on December 14 and 15, 2022, indicating that failure to respond would result in a motion to compel deposition and request for sanctions against Plaintiff. Gary Carlin’s office did not respond.

No deposition took place on December 9, 2022.

On December 15, 2022, Cal Poly made the instant motion to compel deposition and request for sanctions. The motion was set for hearing on January 25, 2023.

On January 10, 2023, Plaintiff Jian opposed the December 15th motion.

On January 13, 2023, Cal Poly replied to the January 10th opposition.

On January 18, 2023, Gary Carlin’s offices moved to be relieved as counsel for Plaintiff Jian.

On January 19, 2023, the Court continued the hearing on the motion to compel deposition from January 25, 2023 to February 16, 2023.

On February 16, 2023, the parties stipulated to a continuance of the motion to compel deposition hearing, from February 16, 2023 to May 15, 2023.

On April 12, 2023, the Court continued the hearing on the motion to compel deposition from May 15, 2023 to June 9, 2023.

On May 15, 2023, the Court granted the motion to relieve counsel by Gary Carlin’s offices—leaving Plaintiff Jian to act in pro per—and continued the motion to compel deposition from June 9, 2023 to July 10, 2023.

On July 6, 2023, Plaintiff Jian filed a Substitution of Attorney noticing entry of Farris E. Ain, Esq. as counsel for Plaintiff.

The motion to compel deposition and its request for sanctions are now before the Court.

Motion to Compel Deposition

Legal Standard

If, [1] after service of a deposition notice, [2] a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, [3] without having served a valid objection under Section 2025.410, [4] fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, [5] the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a) [Arabic numerals added for clarity].)

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

The motion shall also be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the proposed deponent made some response to the deposition notice, then a separate statement must accompany any motion to compel deposition attendance or production. (Cal. Rules of Court, rule 3.1345, subd. (b).)

Ordering Compelling Deposition: GRANTED.

Cal Poly moves to compel Plaintiff’s deposition based on proper service of notices to no avail and based on discovery prejudice to Cal Poly. (See Mot., pp. 8-10.)

Plaintiff Jian opposed the motion based on Gary Carlin acting with substantial justification insofar as Mr. Carlin was facing extremely difficult life circumstances around the time that Cal Poly sought Plaintiff’s deposition and based on Carlin attempting to set alternative deposition dates on or around January 10, 2023. (See Opp’n, p. 3.)

Cal Poly replied by arguing that, as of January 13, 2023, when the reply was filed, Mr. Carlin’s office had not offered new deposition dates, and otherwise offered a summary of the circumstances behind its motion, as well as its merit. (See Reply, pp. 3-4.)

The Court finds that Cal Poly may properly compel Plaintiff Jian’s deposition.

For ease of discussion, the Court primarily frames its analysis on the second amended deposition notice.

Cal Poly’s motion shows that on November 15, 2022, it served a valid second amended deposition notice with requests for production of documents on Plaintiff Jian. (Mot., Desmond Decl., ¶ 26, Ex. 13.) The deposition was set for December 9, 2022 per an agreement between counsel for the parties. (Mot., Desmond Decl., ¶¶ 22-26, Ex. 12.)

Cal Poly’s motion shows that this motion is properly made against a party in this action, i.e., Plaintiff Jian. (Mot., Desmond Decl., Ex. 13.)

Cal Poly’s motion shows a lack of valid objections to the third deposition notice because the “scheduling conflicts” that impeded Gary Carlin’s office from proceeding with the December 9, 2022 deposition lack merit where (1) Cal Poly had for months attempted to set a mutually agreeable deposition date for Plaintiff Jian, with this being the third attempt (Mot., Desmond Decl., ¶¶ 5-28) and (2) it was Gary Carlin’s offices that suggested and agreed to the December 9, 2022 deposition date (Mot., Desmond Decl., ¶¶ 22-25).

Cal Poly’s motion shows that Plaintiff failed to appear for deposition on December 9, 2022. (Mot., Desmond Decl., ¶ 30.)

Cal Poly thus has statutory standing to compel Plaintiff’s deposition and production of documents pursuant to Code of Civil Procedure section 2025.450, subdivision (a).

Cal Poly has also shown good cause for the production of documents in the November 15th second amended deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Though not directly argued in its motion, Cal Poly’s second amended deposition notice shows production requests within the scope of discovery, i.e., requesting production of DFEH Complaints, documents supporting discrimination by Cal Poly against Plaintiff, documents showing Plaintiff complained of harassment and/or retaliation to Cal Poly, documents showing Plaintiff engaged in protected activity, and documents showing that Plaintiff requested accommodations or that the parties engage in an interactive process. (Mot., Desmond Decl., Ex. 13, pp. 3-4; see also Code Civ., Proc., § 2017.010.)

Cal Poly also shows it made the required follow-up efforts to set a new deposition date for Plaintiff Jian following Gary Carlin’s office’s assertion that Plaintiff could not attend the December 9, 2022 deposition. (Mot., Desmond Decl., ¶ 29, Ex. 15; see Code Civ. Proc., § 2025.450, subd. (b)(2).)

Last, no separate statement was required where the deposition and production of documents never took place. (Cal. Rules of Court, rule 3.1345, subd. (b).)

Cal Poly’s motion to compel deposition and requests for production of documents is GRANTED.

Sanctions: DENIED.

If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Cal Poly also requests $3,825 in monetary sanctions against Plaintiff Jian based on Plaintiff’s dilatory and non-responsive behavior relating to his deposition, which has impeded Cal Poly’s trial preparation and has caused Cal Poly to expend significant amounts of time and money just to get Plaintiff to appear at his deposition. (Mot., p. 10.)

Plaintiff’s opposition argues that sanctions are not justified because Plaintiff’s failure to appear was connected to extremely difficult life circumstances faced by Gary Carlin during that time. (Opp’n, p. 3; see Opp’n, Carlin Decl., ¶¶ 1-6 [detailing these circumstances].)

In reply, Cal Poly makes clear that Mr. Carlin never made Cal Poly aware of his life circumstances and that this motion should be granted in full. (See Reply, pp. 3-5.)

The Court finds the imposition of sanctions unjust here.

While the Court sympathizes with Cal Poly’s position, the Court finds that punishing Plaintiff for circumstances that impeded Gary Carlin from properly representing Plaintiff is unjust.

Sanctions are thus DENIED. 

Conclusion

 Defendant California State Polytechnic University, Pomona’s Motion to Compel Deposition is GRANTED, but the Request for Sanctions is DENIED.