Judge: David Sotelo, Case: 21STCV01029, Date: 2022-10-05 Tentative Ruling

Case Number: 21STCV01029    Hearing Date: October 5, 2022    Dept: 40

MOVING PARTY:               Defendants’ Pasadena Area Community College and Robert Blizinski

This is an employment action based on Jennifer Koontz’s alleged wrongful denial of tenure and renewal of her contract with Defendant Pasadena Area Community College District (“PACCD”). Plaintiff filed her complaint on January 1, 2021 against PACCD, and individuals Robert Blizinski (collectively “Defendants”)  and Argiro Julie Koitas asserting: (1) Sex/Gender Discrimination, violation of Cal. Gov. Code Section 12940 et seq; (2) Intentional Interference With Contractual Relations; (3) Intentional Interference with Prospective Economic Advantage; and (4) Slander.

On August 10, 2021, this Court sustained a demurrer without leave to amend with regard all but the First cause of action for Sex/Gender discrimination and subsequently entered a judgment in favor of individual Defendant Koaitas, dismissing her from the lawsuit.

Deposition of Plaintiff and Concurrent Production of Documents: GRANTED

Legal Standard: Pursuant to California Code of Civil Procedure Section 2025.450(a), where, after service of a deposition notice, a party to the action fails to appear for examination or to produce any document, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.” Cal. Code Civ. Proc. § 2025.450(a).¿ To establish this ground moving party must show that (a) the deponent was properly served with a deposition notice, (b) that the deponent failed to appear at the deposition and did not serve a valid objection prior to the deposition, (c) set forth facts showing good cause exists to compel attendance at the deposition and production of the documents and (d) provide a meet and confer declaration or, if the deponent failed to appear, a follow-up contact with the deponent. (See Code Civ. Proc., § 2025.450.)

Here, on June 10, 2022, Defendants properly served a notice of taking Plaintiff’s deposition and concurrent production of documents originally set for July 25-26, 2022. (Grillot Decl. ¶ 4.) On July 13, 2022 Defendants’ counsel emailed Plaintiff’s counsel to arrange parking for the deposition, Plaintiff’s counsel failed to respond. (Grillot Decl. ¶ 6, and Exh. C.). On July 21, 2022, Defendants’ counsel followed up on the prior email, to which there was no response. (Id.) Again on July 22, 2022, Defendants’ counsel followed up on the prior email, to which there was no response. (Id.) That same day Defendants’ counsel called Plaintiffs counsel who stated that he had a call on the other line and would call Defendants’ counsel back, no such call back was made. (Grillot Decl. ¶ 7.) Defendants’ counsel followed up again on the 24^th (the day before the deposition) to which there was no response. (Grillot Decl. ¶ 8.)

Neither Plaintiff nor her counsel appeared at the deposition, nor was any objection or explanation provided for this non-appearance, nor were any documents produced. (Grillot Decl. ¶ 5, 9.) Defendants’ counsel called Plaintiffs’ counsel but did not receive a response. (Grillot Decl. ¶ 10.) After 45 minutes, Defendants counsel went on the record with the court reporter who was present for the scheduled two day proceeding and noted Plaintiff’s failure to appear and made note of the attempts to contact Plaintiff’s counsel. (Grillot Decl. ¶ 11, Exh. E [The court reporter’s affidavit].)

Defendants’ counsel attempted to contact Plaintiff’s counsel on July 29, 2022 via email, and on August 11, 2022 via a call to his cell phone, Plaintiff’s counsel did not respond and as of August 25, 2022 (the date of the filing of this motion) has been unresponsive. (Grillot Decl. ¶ 13-14.)

Despite this motion being outstanding since August 25, 2022, Plaintiff has not filed an opposition further lending credibility to the motion.¿ (See Cal. Rules of Court, rule 3.1342 [“The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits”]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [“The rule [inferring merit in unopposed motions] seems to apply only when a party has not filed any written opposition”].)

The Court finds that good cause exists to compel Plaintiff to appear at her deposition and to produce the requested documents and thus GRANTS Defendants’ motion to compel deposition and concurrent production of documents.

Sanctions:  GRANTED ($3,818.96)

Defendants also seek monetary sanctions against Plaintiff and Plaintiff’s counsel in the amount of $3,818.96 for the reasonable costs and fees incurred in bringing the instant motion. California Code of Civil Procedure § 2023.030 states that a Court “shall” impose sanctions on a party who engages “in the misuse of the discovery process” unless “it finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” See Cal. Code Civ. Proc. § 2023.030(a). A misuse of the discovery process is defined as “failing to respond or to submit to an authorized method of discovery.” See Cal. Code Civ. Proc. § 2023.010(d). Further, Code of Civil Procedure section 2025.450 additionally provides, “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent … 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.” See Cal. Code Civ. Proc. § 2025.450(c)(1).

Defendants incurred significant expense based on Plaintiff’s counsel’s complete failure to communicate regarding the properly noticed deposition, including the fees of a court reporter. Furthermore, as noted in the reply, this is not the first time Plaintiff’s counsel failed to meet and confer, or indeed respond whatsoever, requiring Defendants to seek relief from this Court.

Defendants’ Request for Sanctions is GRANTED as to Plaintiff and her Counsel in the amount of $3,818.96, to be paid within (20) days of this Court’s ruling.