Judge: Daniel M. Crowley, Case: 21STCV18487, Date: 2023-03-08 Tentative Ruling

Case Number: 21STCV18487    Hearing Date: March 8, 2023    Dept: 28

Plaintiffs Jane CGA and Jane CMT Doe’s Motion to Compel Deposition of Defendant Kimberly McMann

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On May 17, 2021, Plaintiffs Jane CGA (“CGA”) and Jane CMT Doe (“Doe”) filed this action against Defendants Covina-Valley Unified School District (“CVUSD”), Kimberly McMann (“McMann”), Richard Sheehan (“Sheehan”) and Patricia Gonzales (“Gonzales”) for negligence, negligent supervision, negligent hiring/retention, negligent failure to warn, train or educate, intentional infliction of emotional distress, assault, sexual battery, sexual harassment, gender violence, sexual abuse and harassment in the education environment, breach of fiduciary duty and constructive fraud.

On September 14, 2021, Plaintiffs filed the First Amended Complaint against the same defendants for negligence, negligent supervision, negligent hiring/retention, negligent failure to warn, train or educate, intentional infliction of emotional distress, assault, sexual battery, sexual harassment, and gender violence.

On April 5, 2022, Plaintiffs filed the Second Amended Complaint.

On June 29, 2022, Plaintiffs filed the Third Amended Complaint.

On October 13, 2022, the Court dismissed Richard Sheehan. CVUSD responded on October 20, 2022. On November 22, 2022, Gonzalez filed an answer.

On January 18, 2023, Plaintiffs filed a Motion to Compel Defendant Kimberly McMann’s Deposition to be heard on March 8, 2023.

Trial is currently scheduled for August 21, 2023.

PARTY’S REQUESTS

Plaintiffs request the Court compel McMann to appear for her deposition.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“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 or tangible thing 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 or tangible thing described in the deposition notice.”  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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Plaintiffs served McMann with a notice of deposition set for October 5, 2022; McMann’s counsel served an objection to the notice on the basis of preserving her 5^th amendment rights. Plaintiff requested a legal basis for this objection shielding McMann from her entire deposition but received no response. McMann did not appear for her deposition, nor did she provide any other dates for her deposition. While McMann and counsel can utilize 5^th amendment objections to certain questions during the deposition, McMann cannot use this as a barrier to Plaintiffs conducting discovery generally. The Court grants the motion, compelling McMann to appear for a deposition.

CONCLUSION

Plaintiffs Jane CGA and Jane CMT Doe’s Motion to Compel Deposition of Defendant Kimberly McMann is GRANTED. McMann is ordered to appear for a deposition within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.