Judge: Anne Richardson, Case: 23STCV08352, Date: 2023-10-27 Tentative Ruling

Case Number: 23STCV08352    Hearing Date: January 9, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Diana Villagomez sues Defendants Victory Professional Products, Inc. (Victory Products) and Does 1 through 50 pursuant to a July 19, 2023 First Amended Complaint (FAC) alleging claims of (1) Pregnancy Discrimination (Govt. Code § 12940, et seq.), (2) Interference in Violation of Pregnancy Disability Leave Law (Govt. Code § 12940, et seq.), (3) Disability Discrimination (Govt. Code § 12940, et seq.), (4) Retaliation (Govt. Code § 12940(h)), (5) Failure to Accommodate (Gov. Code § 12940(m)), (6) Failure to Engage in the Interactive Process (Govt. Code § 12940(n)), (7) Retaliation (Labor Code § 1102.5 et seq.), (8) Failure to Investigate and Prevent Discrimination and Retaliation (Govt. Code § 12940(k)), and (9) Wrongful Termination in Violation of Public Policy.

The claims arise from allegations that in her employment with Victory Products, Plaintiff Villagomez was subjected to conduct amounting to various Fair Employment and Housing Act (FEHA) and Labor Code violations and to wrongful termination.

On December 12, 2023, Plaintiff filed the instant motion to compel the deposition of Mark Spitaleri and for monetary sanctions.

On December 26, 2023, Defendant Victory Products opposed the motion and requested monetary sanctions against Plaintiff.

On January 1, 2024, Plaintiff replied to the opposition.

Plaintiff’s motion is 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 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).)

Order Compelling Deposition: GRANTED.

Plaintiff moves to compel the deposition of Defendant Victory Products’ owner Marc Spitaleri. Plaintiff served both a notice of deposition for Defendant’s PMQ (assuming it would be Mr. Spitaleri) and for Mr. Spitaleri in his individual capacity. As to Mr. Spitaleri, Defendant sent meet and confer correspondence that he had no relevant information and would move for a protective order unless the deposition was limited to one-hour. Plaintiff’s counsel sent correspondence back requesting dates for depositions and explaining the need for more time than just one-hour and stating the deposition would not be prolonged or a waste of time. (Chami Decl., ¶¶12-13, Exhs. H-I.)

In opposition, Defendant Victory Products contends that it does not oppose the motion as to the taking of Mr. Spitaleri’s deposition, but requests the imposition of limits on it. Defendant argues that the deposition should be limited to one hour and should be done remotely as Mr. Spitaleri has limited relevant information. However, the Court does not find the arguments set forth by Defendant to be sufficient to limit the deposition in time. Defendant does not provide sufficient evidence for a one-hour time limit, and Plaintiff’s counsel has indicated he will not prolong the deposition. If Mr. Spitaleri has little relevant information, then the deposition will conclude early on its own. However, his position at the firm and the fact of emails directly to him relating to the Plaintiff’s complaint raise a legitimate need for his deposition, and the Court does not see any reason to limit it to one hour based on this record. If the deposition becomes harassing as Defendant argues is the whole reason for it, then defense counsel may raise these objections at the deposition.

Moreover, while the Court usually has granted requests for a remote deposition during the period of and following the Covid-19 pandemic, Defendant has not articulated any need to do so in its Opposition, and Plaintiff’s Reply indicates that Defendant insisted on the in-person deposition of his client (thus proving the absence of a mutual agreement on remote depositions.) The Code of Civil Procedure generally requires that the deposition take place either 75 miles from the deponent’s residence, or in the county where the action is pending and 150 miles from the deponent’s residence. (Code Civ. Proc. § 2025.250.) The Court has not seen any basis in Defendant’s opposition to deviate from the statutory requirements.

The Court also notes that Defendant opposes the motion on the basis that Plaintiff has not met and conferred. The Court does not agree based on the correspondence exchanged.

Accordingly, the motion is GRANTED.

Sanctions: GRANTED.

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).)

As the motion is granted, the Court finds that sanctions are warranted against Defendant Victory Products. Plaintiff requests $4,820 in sanctions based on 3.8 hours drafting this motion and declaration, 2 hours reviewing the opposition and replying, and 1 hour attending the hearing, all at counsel’s hourly rate of $700, plus a $60 filing fee. The Court finds the amount reasonable.

Defendant Victory Products’ request for sanctions is denied. 

Conclusion

Plaintiff Diana Villagomez’s Motion to Compel Deposition is GRANTED. Plaintiff Diana Villagomez’s request for sanctions is GRANTED in the amount of $4,820. Defendant Victory Products’ request for sanctions is DENIED.