Judge: Elaine Lu, Case: 22STCV25716, Date: 2023-08-03 Tentative Ruling
Case Number: 22STCV25716 Hearing Date: January 24, 2024 Dept: 26
|
leticia
jacobo, Plaintiff, v. j.h. snyyder
company;
ONE MUSEUM SQUARE LLC; LON SNYDER; et al., Defendants. |
Case No.: 22STCV25716 Hearing Date: January 24, 2024 [TENTATIVE]
order RE: Defendants’ motion to compel further
responses to form interrogatories (employment law) and compel PLaintiff’s
deposition |
Procedural
Background
On August 9, 2022, Plaintiff Leticia
Jacobo (“Plaintiff”) filed the instant wrongful termination action against
Defendants J.H. Snyder Company, One Museum Square LLC, and Lon Snyder (collectively
“Defendants”). The complaint asserts six
causes of action for (1) Sex Discrimination in Violation of the Fair Employment
and Housing Act (“FEHA”), (3) Sexual Harassment in Violation of FEHA, (4)
Retaliation in Violation of FEHA, (5) Failure to Prevent Discrimination,
Harassment, and Retaliation in Violation of FEHA, and (7) Wrongful Termination
in Violation of Public Policy.
On December 22, 2023, Defendants
filed the instant motion to compel Plaintiff’s further responses to Form
Interrogatories (Employment Law). On
December 29, 2023, Defendants filed the instant motion to compel Plaintiff’s
deposition. On January 8, 2024, the
Court granted Defendant’s ex parte application and advanced the instant motion
to compel further responses to the Form Interrogatories (Employment Law), the
instant motion to compel Plaintiff’s deposition, and a purported motion by Defendants
to deem request for admission admitted.
(Minute 1/8/24.) On January 18,
2024, Plaintiff filed a declaration attaching an amended response to the form
interrogatories with proof of service.
On January 19, 2023, Defendants filed a “Notice of Non-Opposition to
Defendants’ Motion to Compel Plaintiff’s Deposition” and a “ Notice of
Non-Opposition to Defendants’ Motion to Compel Further Response to Form
Interrogatories and Motion to Deem Requests for Admission Admitted”. In addition, on January 19, 2024, Plaintiff
filed a declaration attaching an amended response to Request for Admission, Set
One with proof of service. On January
23, 2024, Plaintiff filed oppositions to Defendants’ notices of non-opposition.
Untimely
Oppositions
“All
papers opposing a motion so noticed shall be filed with the court and a copy
served on each party at least nine court days, and all reply papers at least
five court days before the hearing.” (CCP
§ 1005(b).) This is calculated by
counting backwards from the hearing date and excluding holidays and
weekends. (CCP §§ 12-12(c).) The court may refuse to consider a late-filed
paper. (Cal. Rules of Court, Rule
3.1300(d).)
Here, the oppositions were filed on
January 23, 2024 – one court day before the instant hearing and thus
untimely. The fact that Plaintiff is pro
per does not excuse the untimely filings as “pro per litigants are not entitled
to special exemptions from the California Rules of Court or Code of Civil
Procedure.” (Gamet v. Blanchard (2001)
91 Cal.App.4th 1276, 1284.) Rather, in
pro per litigants are “entitled to treatment equal to that of a represented
party.” (Ibid.) Given the extreme tardiness of the
oppositions to the notices of non-opposition, the Court will not consider those
oppositions. However, the Court will
consider the declarations filed on January 18, 2024 and January 19, 2024.
No
Motion to Deem Admitted on File
Though the Court granted Defendants
request to advance their Motion to Deem Requests for Admission admitted, the
docket reflects that Defendants never filed a memorandum for such a motion. The sole document suggesting the existence of
such a motion is a declaration referencing an unfiled motion to deem admitted. “A
party filing a motion, …. must serve and file a supporting memorandum. The
court may construe the absence of a memorandum as an admission that the motion …
is not meritorious and cause for its denial[.]”
(Cal. Rules of Court, Rule 3.1113(a).)
As Defendants failed to file any memorandum for any motion to deem
admitted, the Court finds that the motion lacks merit and must be denied.
Legal
Standard
Interrogatories
Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a
response to interrogatories, the propounding party may move for an order
compelling a further response if the propounding party deems that any of the
following apply: (1) An answer to a particular interrogatory is evasive or
incomplete; [or] (2) An exercise of the option to produce documents under
Section 2030.230 is unwarranted or the required specification of those
documents is inadequate; [or] (3) An objection to an interrogatory is without
merit or too general.” (CCP §
2030.300(a).)
Notice of the motion must be given within 45 days of service of the
verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any
right to compel a further response. (CCP
§ 2031.310(c).) The motion must also be
accompanied by a meet and confer declaration.
(CCP § 2031.310(b)(2).)
The burden is on the responding party to justify any objection or failure
to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)
Motion to Compel
Deposition
“Any party may obtain discovery . . . by
taking in California the oral deposition of any person, including any party to
the action. The person deposed may be a
natural person, an organization such as a public or private corporation, a
partnership, an association, or a governmental agency.” (CCP § 2025.010.)
Code of Civil Procedure § 2025.450(a)
provides: “If, after service of a deposition notice, a party to the action
. . . , without having served a valid objection under Section 2025.410, 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 of Civil Procedure § 2025.450(b)
provides: “A motion under subdivision (a) shall comply with both of the
following:
Code of Civil Procedure § 2025.450(c)
provides, “(1) 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 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.”
Under Code of Civil Procedure §
2023.030(a), “[t]he court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney advising that
conduct, or both pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. . . . If a monetary
sanction is authorized by any provision of this title, the court shall impose
that sanction 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.” Failing to respond or to submit to
an authorized method of discovery is a misuse of the discovery process.
(CCP § 2023.010(d).)
Discussion – Form Interrogatories
As noted in the procedural history above, Plaintiff has served further
responses to the Form Interrogatories (Employment Law) at issue. (Jacobo 1/18/24 Decl.) Per the attached declaration, Plaintiff
appears to have substantively responded to each at issue interrogatory without
objection. Pursuant to Code of Civil Procedure § 2030.300
“[o]n receipt of a response to interrogatories, the propounding party
may move for an order compelling further response to the demand”
[.] (Id., [italics added].) As Plaintiff has served further responses to
the Form Interrogatories (Employment Law) at issue, Defendant has received the
further response that it sought to compel, further to the original
responses. Accordingly, the instant
motion to compel Form Interrogatories
(Employment Law) is MOOT.
Discussion – Compel Deposition
Meet
and Confer
Code of Civil Procedure § 2025.450
requires the motion to be accompanied by a meet and confer declaration under
Code of Civil Procedure § 2016.040. (CCP
§ 2025.450.) Code of Civil Procedure §
2016.040 provides that “[a] meet and confer declaration in support of a motion
shall state facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.” (CCP § 2016.040.) “[W]hen 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.” (CCP § 2025.450(b)(2).)
The Court finds that Defendants have
sufficiently met and conferred. (Kourouyan
Decl. ¶¶ 6-8, Exhs. E-G.)
An Order Compelling
Plaintiff’s Deposition is Warranted
Here, on November 6, 2023, Defendants
sent their Third Amended Notice of Deposition for Plaintiff’s deposition
scheduled for November 27, 2023 at the office of Defendants’ counsel, located
at 725 S. Figueroa Street, Suite 2500, Los Angeles, CA 90017. (Kourouyan Decl. ¶ 3, Exh. C.) In open court, on November 8, 2023, Plaintiff
confirmed receipt of the Third Amended Notice of Deposition. (Kourouyan Decl. ¶ 5, Exh. D.) However, Plaintiff informed Defendants that
she would not appear. (Kourouyan Decl. ¶
5.)
“On November 9, 2023, Defendants
served Plaintiff with a meet and confer letter asking for her availability for
a deposition for November 2023 or early December 2023.” (Kourouyan Decl. ¶ 6, Exh. E.) “On November 13, 2023, Plaintiff mailed
Defendants a letter providing a list of demands she insisted Defendants agree
to appear. Plaintiff’s demands include the following: [¶] a. That Defendants
provide topics or subjects of the deposition; [¶] b. That the deposition be
limited to three hours maximum; [¶] c. That Defendants may not use a
videographer to record the deposition; [¶] d. That the deposition cannot take
place at Defendants’ counsel’s office; [¶] e. That Plaintiff be allowed to
bring ‘family members’ to be present during the deposition; [¶] f. That
Plaintiff be allowed to use a laptop during the deposition; [¶] g. That
Defendants provide a list of witnesses who will be present during the
deposition; [¶] h. That Defendants provide ‘the rules and procedures that will
govern the deposition’; [¶] i. That Defendants provide any documents or
exhibits that will be used during the deposition; [¶] j. That Plaintiff be
allowed to use a note pad for personal notes during the deposition; [¶] k. That
Plaintiff will be provided with 30 minutes ‘for cross examination during the
deposition and court reporter will incorporate such cross examination in
transcript’; [¶] l. That Defendants ensure the court reporter provide her with
a copy of the deposition transcript and disclose the fee.” (Kourouyan Decl. ¶ 7, Exh. F.) “Plaintiff vaguely indicated that any
deposition would have to take place after December 27, 2023, but did not
provide any specific dates.” (Kourouyan
Decl. ¶ 8.) “Plaintiff re-iterated these
requests in a second letter dated December 7, 2023, but still did not provide
specific dates for her deposition.”
(Kourouyan Decl. ¶ 8.)
After encountering an inability to
further meet and confer, on December 12, 2023, Defendants served their Fourth
Amended Notice of Deposition for Plaintiff’s deposition scheduled for January
3, 2024 at the office of Defendants’ counsel, located at 725 S. Figueroa
Street, Suite 2500, Los Angeles, CA 90017.
(Kourouyan Decl. ¶¶ 8-9, Exh. H.)
On December 19, 2023, Plaintiff filed declaration objecting to the
deposition with the Court objecting on the grounds that the deposition was
unilaterally set. (Kourouyan Decl. ¶ 10,
Exh. I.)
Objections to a notice of the
deposition are very limited and may only pertain to errors or irregularities in
the deposition notice itself. (CCP §
2025.410, [“Any party served with a deposition notice that does not comply with
Article 2 (commencing with Section 2025.210) waives any error or
irregularity unless that party promptly serves a written objection specifying
that error or irregularity at least three calendar days prior to the date for
which the deposition is scheduled, on the party seeking to take the deposition
and any other attorney or party on whom the deposition notice was
served.].) Article 2 which consists of
Code of Civil Procedure §§ 2025.210-2025.295 provide specific requirements that
a deposition notice must satisfy.
The unilateral setting of a
deposition is not a valid basis for an objection. As no valid objection has been raised to the
deposition notice, and Plaintiff has failed to provide alternative dates for
the deposition, Defendants motion to compel Plaintiff’s deposition is GRANTED.
Sanctions
Sanctions were not
requested in the respective notices.
Therefore, no sanctions can be awarded.
(CCP § 2023.040, [“A request for a sanction shall, in the notice of
motion, identify every person, party, and attorney against whom the sanction is
sought, and specify the type of sanction sought.”].)
CONCLUSIONS AND
ORDER
Based on the foregoing, Defendants J.H.
Snyder Company, One Museum Square LLC, and Lon Snyder motion to compel
Plaintiff Leticia Jacobo’s further responses to Form Interrogatories
(Employment Law) is DENIED AS MOOT.
As no motion was filed, any request by Defendants
J.H. Snyder Company, One Museum Square LLC, and Lon Snyder to deem requests for
any admissions admitted is DENIED.
Defendants J.H. Snyder Company, One Museum
Square LLC, and Lon Snyder’s motion to compel Plaintiff Leticia Jacobo’s
deposition is GRANTED.
Plaintiff Leticia Jacobo is ordered to
appear for a deposition within ten (10) days of notice of this order at a date,
time, and location noticed by Defendants.
Moving Parties are to give notice and file
proof of service of such to all parties.
DATED:
January ___, 2024 ___________________________
Elaine
Lu
Judge
of the Superior Court