Judge Cherol J. Nellon, Case Number: 23STCV29493, Date: 2024-11-16 Tentative Ruling

Judge: Cherol J. Nellon, Case: 23STCV29493, Date: 2024-11-16 Tentative Ruling

Case Number: 23STCV29493 Hearing Date: November 16, 2024 Dept: 14

Case Background

This is an action for fraudulent inducement, intentional and negligent misrepresentation, promissory estoppel, violations of the FEHA, violations of the Labor Code , wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, and violations of Bus. & Prof. Code, section 17200, et seq. Plaintiff alleges that while she was employed as an executive officer by Defendants, Plaintiff suffered discrimination due to her gender and race. Additionally, Plaintiff was not given the pay and other benefits she was promised in her employment contract. After she requested the missing benefits, Plaintiff was terminated.

On December 1, 2023, Plaintiff Noel Mika Bahamon filed her Complaint against Defendants Jet Edge International, LLC (Jet Edge), Western Air Charter, Inc. (Western), Vista Global Holding Limited (Vista), and Bill Papariella.

On September 24, 2024, Plaintiff filed this omnibus motion to compel Defendants’ responses to requests for production and special interrogatories, and to compel the depositions of Defendant Papariella and Defendant Jet Edge’s Vice President of Human Resources, Karin Saidiner.

On October 3, 2024, Defendants filed their opposition.

On October 9, 2024, Plaintiff filed a reply.

Instant Pleading

Plaintiff moves to compel Defendants’ responses to requests for production and special interrogatories, and to compel the depositions of Defendant Papariella and Defendant Jet Edge’s Vice President of Human Resources, Karin Saidiner.

Decision

Plaintiffs’ motions to compel Defendants’ responses to discovery are DENIED. The Court awards Defendants sanctions in the reduced amount of $1,260 for four hours of attorney time at a rate of $300 per hour and a $60 filing fee.

Plaintiff’s motion to compel the deposition of Papariella is GRANTED. The motion to compel the deposition of Karin Saidiner is DENIED. Plaintiff’s request for sanctions against Papariella is GRANTED in the reduced amount of $1,260 for four hours of attorney time at a rate of $300 per hour and a $60 filing fee.

Plaintiff is ordered to pay nine additional filing fees of $60 for a total of $540 to the Court.

Sanctions and the missing filing fees are to be paid within 10 days of this order.

Discussion

Plaintiff filed an improper omnibus motion compelling two different types of discovery from four different Defendants, and compelling two different depositions. Plaintiff was required to file each motion separately against each party and pay a separate filing fee for each motion. (Gov. Code, section 70617(f).) Plaintiff must pay nine separate filing fees to the Court.

Motions to Compel Discovery

Plaintiff moves to compel two sets of discovery from all four Defendants. Plaintiff represents that she propounded the first set of discovery requests on January 26, 2024. (Zonne Decl., ¶2.) Defendants served responses consisting solely of objections on March 19, 2024. (Id., ¶4.) Plaintiff argues that the objections are not responses to discovery and that the objections were not verified. (Reply, pp. 2-3.)

A party to whom interrogatories and requests for production have been propounded may respond with objections. (Code Civ. Proc., sections 2030.210 (a)(3), 2031.210(a)(3). Objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

Here, Defendants’ responses consisting solely of objections are valid under the Discovery Act. Plaintiff’s assertion that they are not responses is incorrect. If Plaintiff was not satisfied with the sufficiency of the responses, she was required to participate in IDC and file a motion to compel further. The Court notes that it has now been more than 45 days since Defendants served their responses.

Failure to timely move to compel further responses within the specified period constitutes a waiver of any right to compel a further response. The 45–day rule to bring a motion to compel is mandatory and jurisdictional “in the sense that it renders court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Ct. (1997) 58 Cal.App.4th 1403, 1410.)

Here, even if Plaintiff filed a motion to compel Defendants’ further responses to special interrogatories and requests for production, the Court lacks the authority to rule on the motion. Therefore, Plaintiff’s motion to compel discovery is DENIED. Plaintiff may not file a motion to compel further.

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or request for production, 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. (Code Civ. Proc., sections 2030.290(c), 2031.290(c).)

Here, because both motions were denied and Defendants responded to both motions in one opposition, the Court awards Defendants $1,260 for 3 hours of attorney time at a rate of $300 per hour plus a $60 filing fee.

Motions to Compel Deposition

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, or to proceed with it, or to produce for inspection any document, … described in the deposition notice, 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 … described in the deposition notice.” (Code Civ. Proc., section 2025.450, subd. (a).)

Here, Plaintiff moves to compel the depositions of Defendant Papariella and Defendant Jet Edge’s Vice President of Human Resources, Karin Saidiner. Plaintiff served deposition notices on Papariella and Saidiner setting deposition dates for March 2024. (Zonne Decl., ¶3.) Papariella and Saidiner objected to the deposition date due to unavailability. (Id., ¶¶3,6.) Thereafter, Defendants’ counsel failed to send deposition dates despite Plaintiff’s attempts to meet and confer. (Id., ¶¶8-11.)

Defendants argue that Plaintiff’s deposition notices were improper because they were unilaterally noticed and Plaintiff failed to meet and confer before serving the notices. (Opp., p. 3.) However, the Discovery Act does not require Plaintiff to meet and confer over deposition dates prior to serving a deposition notice. Although Defendants may object to the notices due to unavailability, Defendants failed to proceed with a properly noticed deposition notice by failing to provide dates of availability.

The motion to compel the deposition of Defendant Papariella is GRANTED because Papariella failed to proceed with Plaintiff’s properly noticed deposition.

The motion to compel the deposition of Saidiner is DENIED because she is not longer employed by Defendants. (Lallite Decl., ¶4.) If Plaintiff wishes to depose Saidiner, Plaintiff must proceed with the nonparty discovery procedures set forth in Code Civ. Proc., sections 2020.240-2022.)

If a motion to compel deposition is granted, sanctions are mandatory 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., section 2025.450, subd. (g)(1).)

Here, sanctions are granted as to the motion to compel Defendant Papariella only because the motion was granted. Plaintiff’s counsel’s rate of $1,040 per hour is excessive and the number of hours expended is excessive. The Court awards Plaintiff sanctions totaling $1,260 for four hours of attorney time at a rate of $300 per hour and a $60 filing fee.

Conclusion

Plaintiff is ordered to pay nine additional filing fees of $60 for a total of $540 to the Court.

Sanctions and the missing filing fees are to be paid within 10 days of this order.