Judge: Christopher K. Lui, Case: 21STCV00558, Date: 2023-02-16 Tentative Ruling
Case Number: 21STCV00558 Hearing Date: February 16, 2023 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given and the parties do not appear, the Court will
adopt the tentative ruling as the final ruling.
Plaintiff alleges that, in retaliation for Plaintiff having made multiple requests for accommodation of her physical disability, and for having filed a FEHA complaint with the DFEH, Defendant gave Plaintiff a poor performance evaluation, and was transferred. Plaintiff was also subjected to harassment. Defendant also failed to adequately accommodate Plaintiff’s disability during the COVID-19 related Safe at Home order by not allowing her to continue her temporary assignment of performing contact tracing.
Defendant County of Los Angeles moves to compel the deposition of Plaintiff and requests the imposition of sanctions.
TENTATIVE RULING
Defendant County of Los Angeles’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff’s deposition is to occur within 20 days.
Defendant’s request for sanctions against Plaintiff’s former counsel, Rick Hicks, Esq., Eugenia Hicks and Ricardo Hicks, Esq. of the firm Hicks & Hicks and Plaintiff, jointly and severally, is GRANTED in the reduced amount of $1,320.00. Sanctions are to be paid to Defendant’s counsel within 20 days.
Motion To Compel Deposition
Discussion
CCP §
2025.450 provides in pertinent part as follows:
(a) If, after service of a
deposition notice, 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, without having served a valid objection
under Section 2025.410, fails . . . to proceed with it, . . . the party
giving the notice may move for an order compelling the deponent’s attendance
and testimony, . . .
(b) A motion under subdivision (a)
shall comply with both of the following:
(1) 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.
(2) The motion shall 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.
. . .
(g)
(1) 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.
. . .
(h) If that party or
party-affiliated deponent then fails to obey an order compelling attendance,
testimony, and production, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section 2023.010)
against that party deponent or against the party with whom the deponent is
affiliated. In lieu of, or in addition to, this sanction, the court may impose
a monetary sanction under Chapter 7 (commencing with Section 2023.010)
against that deponent or against the party with whom that party deponent is
affiliated, and in favor of any party who, in person or by attorney, attended
in the expectation that the deponent’s testimony would be taken pursuant to
that order.
. . .
(Civ.
Proc. Code, § 2025.450.)
The Declaration of Irene A. Yousefi reflects that Defendant’s counsel engaged in sufficient meet and confer efforts prior to filing this motion after Plaintiff’s counsel objected to the deposition and offered alternative dates, but eventually informed Defendant that Plaintiff would not sit for her deposition because she was on medical leave. (Yousefi Decl., ¶¶ 6 – 18; Exhs. B - O.)
Because the deposition notice does not request the production of documents, Defendant need not demonstrate good cause for such production.
Defendant is entitled to an order compelling Plaintiff to appear for her deposition. because service of a notice of deposition is sufficient compel the deposition of a party. (Civ. Proc. Code, § 2025.450(a).)
Plaintiff offers no evidence that a physician has determined that Plaintiff cannot sit for a deposition, even via videoconferencing. The fact that Plaintiff is on medical leave from her employment does not automatically excuse her from participating in discovery, and Plaintiff cites not authority for this proposition.
As such, Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff’s deposition is to occur within 20 days.
Defendant’s request for sanctions against Plaintiff’s former counsel, Rick Hicks, Esq., Eugenia Hicks and Ricardo Hicks, Esq. of the firm Hicks & Hicks and Plaintiff, jointly and severally, is GRANTED in the reduced amount of $1,320.00. (8 total hours at $165/hour—Yousefi Decl., ¶ 22.) Sanctions are to be paid to Defendant’s counsel within 20 days.