Judge Gregory Keosian, Case Number: 20STCV19075, Date: 2023-04-26 Tentative Ruling

Judge: Gregory Keosian, Case: 20STCV19075, Date: 2023-04-26 Tentative Ruling

Case Number: 20STCV19075 Hearing Date: April 26, 2023 Dept: 61

Defendants TPUSA-FHCS, Inc., Sandy Matthews, Denise Brackeen, and Christopher Keveny’s Motion for Terminating Sanctions is GRANTED in part. Plaintiff is directed to appear for another session of deposition within 30 days. Sanctions are awarded against Plaintiff in the amount of $5,000.00.

Defendants to provide notice.

I. MOTION FOR TERMINATING SANCTIONS

The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This conduct include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

Defendants TPUSA-FHCS, Inc., Sandy Matthews, Denise Brackeen, and Christopher Keveny (Defendants) move once more for terminating sanctions against Plaintiff Jane Doe (Plaintiff) on the grounds that Plaintiff has failed to appear or proceed for her court-ordered deposition. Similar conduct was the subject of a prior motion for sanctions, which this court granted only with respect to monetary sanctions against Plaintiff. In the prior ruling of November 28, 2022, the court provided the following account of the facts:

This court on August 9, 2022, granted Defendant’s motion to compel Plaintiff’s deposition, based on her failure to appear for an earlier deposition scheduled for August 2, 2022. That deposition was ordered to take place on September 30, 2022. After Defendants served a deposition notice confirming the date, Plaintiff served objections to the new deposition, and failed to confirm whether she would attend the deposition until after it had begun on the date ordered, when she stated that she would not be attending. (Alguire Decl. ¶¶ 13–19.)

Defendants provide an account of what occurred after this order. A deposition was scheduled and took place on December 14, 2022, per this court’s order. (Alguire Decl. ¶ 5.) But Plaintiff was uncooperative throughout, refusing to answer basic questions about her employment or these proceedings based on spurious objections or misinterpretations of the questions being asked. (Alguire Decl. Exh. C.) Plaintiff refused to state why she used her “government name” in verifying discovery, rather than her Jane Doe pseudonym. (Id. at pp. 23–25.) Plaintiff refused to answer whether she kept a journal, based on her confusion as to what was meant by “journal.” (Id. at pp. 54–56.) Plaintiff denied verifying the discovery responses previously served in this case, and further refused to provide any elaboration as to the basis for her denial. (Id. at pp. 68–71.) Plaintiff claimed that any contacts she made with current or former employees to serve as her witnesses was protected by her pro-per attorney-client privilege. (Id. at p. 81.) Plaintiff stated that she did not recall whether she had ever testified in a deposition, and could not recall whether she has any professional licenses or certificates. (Id. at pp. 88, 93.) While she confirmed that she had worked at locations other than those listed on her resume, she refused to provide examples, on the grounds that she would need more time to recall the full list of employers. (Id. at pp. 97–98, 100.) Plaintiff refused to confirm the date that she was hired or whether she had any reason to believe the date listed on her new hire form was inaccurate . (Id. at pp. 117–120.) Plaintiff also refused to answer whether a given defendant had authority over her. (Id. at pp. 140–141.) When asked concerning her discovery responses or allegations in her complaints, Plaintiff broadly claimed there were “discrepancies” that she “came in pro per to address,” but that she would not “address those [discrepancies] in the deposition.” (Id. at pp. 165–168, 183–186, 189–190.) When asked the date she was terminated, Plaintiff denied that she was terminated on May 22, 2018, and stated that her date of termination of “under discovery.” (Id.at pp. 194–196, 209–210.) When asked to review a two-page email chain and state whether she recalled receiving the emails, she stated that the actual email chain was 13 pages long it was “too corrosive [coercive]” to expect her to read the emails at the deposition. (Id. at p. 222.)

While the deposition ran to a close, Plaintiff stated that she would agree to a further session of deposition “after I do all of my depositions because she [opposing counsel] held on to my discovery for ten months.” (Id. at p. 246.) After the deposition, when Defendant attempted to secure dates for Plaintiff’s further deposition, Plaintiff stated that she was unavailable for the dates described, but the only stated basis for unavailability was that she intended to take other depositions on other dates. (Alguire Decl. Exh. F, H.) When a second deposition notice was served upon Plaintiff, Plaintiff served no objections, and did not appear on the noticed date of January 5, 2023. (Alguire Decl. ¶¶ 8–19.) Thus Defendants ask for an order imposing terminating sanctions upon Plaintiff, dismissing all of her claims, or else compelling her to attend another deposition session with an additional $5,000.00 in sanctions imposed upon her.

An award of further monetary sanctions, and an order to attend a further session of deposition, is appropriate. Although Plaintiff appeared for deposition as ordered by the court, Plaintiff’s obstreperous conduct and meritless objections impeded Defendants’ ability to complete the deposition in time, making a further deposition session necessary. Plaintiff acknowledged the need for further deposition both at the deposition itself and in later correspondence, but refused to appear for further deposition based on the unilateral condition that she take the deposition of all of her witnesses first, despite the existence of a court order compelling her attendance at her own deposition.

Plaintiff’s repeated refusal to answer the questions proffered to her was improper. To the extent Plaintiff has any objections “to the form of any question,” she may state her objection and answer. (Code Civ. Proc. § 2025.460, subd. (b).) Objections based on “relevancy, materiality, or admissibility at trial” are “unnecessary.” (Code Civ. Proc. § 2025.460, subd. (c).) It is improper to decline to answer questions at a deposition save on grounds of privilege, privacy, or trade secret protections. (See Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, (The Rutter Group 2022) Discovery, ¶ 8:734.2.) Plaintiff has presented no opposition justifying her conduct during the deposition or the objections asserted therein.

The motion is therefore GRANTED in part. Plaintiff is directd to appear for another session of deposition. Sanctions are awarded against Plaintiff in the amount of $5,000.00.