Judge: Gregory Keosian, Case: 21STCV33705, Date: 2023-02-15 Tentative Ruling
Case Number: 21STCV33705 Hearing Date: February 15, 2023 Dept: 61
Plaintiff Lindsey Sterling’s Motion to Compel Depositions is
DENIED. Sanctions are awarded against Plaintiff’s counsel in the amount of $1,275.
Defendant Prada USA Corp.’s Motion to Compel Deposition of
Plaintiff Lindsey Sterling, and Motions to Compel Further Responses to
Supplemental Requests for Production and Form Interrogatories, are GRANTED.
Sanctions are awarded against Plaintiff’s counsel in the amount of $4,080.
Defendant to provide Notice.
MOTION
TO COMPEL DEPOSITION
A party may make a
motion compelling a witness’s deposition “after service of a deposition notice”
if that witness “fails to appear for examination, or to proceed with it.” (Code
Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration
and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450,
subd. (b)(1), (2).)
1. Defendant’s Motion
Defendant Prada USA Corp. (Defendant) moves to compel the deposition of
Plaintiff Lindsey Sterling (Plaintiff) . Although a first session of
Plaintiff’s deposition was completed on August 12, 2022, Defendant contends
that the deposition was not concluded, and attempted to arrange dates for
another deposition session. However, Plaintiff’s counsel has refused to provide
dates for Plaintiff’s deposition until Defendant provides dates for its own
witnesses. (Papac Decl. ¶¶ 3–7.) Although Defendant provided dates for
deposing its own witnesses, Plaintiff’s counsel refused to provide dates for
Plaintiff’s deposition. (Papac Decl. Exhs. A–C.)
Plaintiff in opposition contends that Defendant has already taken seven
hours of Plaintiff’s deposition and therefore cannot seek further deposition
under Code of Civil Procedure § 2025.290. (Opposition at pp. 4–6.)
Plaintiff’s argument is unsupported. A plaintiff in an employment suit is
not limited to seven hours of deposition. (Code Civ. Proc. § 2025.290, subd.
(b)(4).) The correspondence between the parties’ respective counsel, presented with
Defendant’s motion, demonstrates that Plaintiff’s counsel never previously
challenged the necessity of a further session of deposition, but rather agreed
that it would proceed, subject to Defendant’s providing of dates for the
witnesses that Plaintiff sought to depose. (Papac Decl. Exhs. A–C.) But
Plaintiff refused the dates offered by Defendant’s counsel and filed the
instant motion. This was improper, and an order compelling deposition is
appropriate.
Defendant’s motion is therefore GRANTED.
2.
Plaintiff’s
Motion
Plaintiff moves to compel the
depositions of the following Defendant-affiliated witnesses: Piergiorgio
Maraffa, Sharilyn Gant, Amanda Parrette, Anna Hall, Kristin Gerlick, and
Defendant’s person most knowledgeable (PMK). Plaintiff contends that despite
requesting dates for these depositions from Defendant, no dates have been
provided. (Westmoreland Decl. ¶¶ 6–10.)
Plaintiff’s motion misrepresents
the facts. Although the declaration of Plaintiff’s counsel states that no dates
were offered — and omits any of Defendant’s email communications from the supporting
exhibits — the more complete correspondence reflected in Defendant’s opposition
shows repeated attempts to offer dates for the witnesses that Plaintiff now
seeks a court order to depose. (Papac Decl. Exh. B, O, P.) If no depositions
were concluded, it is because Plaintiff’s counsel rebuffed Defendant’s scheduling
efforts with vituperative comments and imperious demands.
The motion is DENIED. The court
finds this motion to be brought without substantial justification, and
therefore to be an abuse of the discovery process under Code of Civil Procedure
§ 2023.010, subd. (h), warranting monetary sanctions under Code of Civil
Procedure § 2023.030, subd. (a). Defendant seeks $1,275.00 in sanctions,
representing five hours of attorney work at $255 per hour. (Papac Decl. ¶ 14.) Sanctions
are awarded against Plaintiff’s counsel in that amount.
MOTIONS TO COMPEL FURTHER
“Any party may obtain discovery . . . by propounding to any other party to
the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a
propounding party is not satisfied with the response served by a responding
party, the former may move the court to compel further interrogatory
responses. (Code Civ. Proc., § 2030.300;
Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the
responses were incomplete, inadequate or evasive, or that the responding party
asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)
“A propounding party may demand a responding
party to produce documents that are in their possession, custody or control.
(Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by
propounding interrogatories to another party to be answered under oath. (Code
Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the
production demand either by complying, by representing that the party lacks the
ability to comply, or by objecting to the demand. (Code Civ. Proc., §
2031.210.) The responding party must respond to the interrogatories by
answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the
responding party fails to serve timely responses, the propounding party may
move for an order compelling responses to the production demand and
interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)
Defendant seeks further responses to
supplemental requests for production and interrogatories that it served upon
Plaintiff on October 14, 2022. (Papac Decl. ¶ 9.) The impetus for these
supplemental discovery requests — seeking later-acquired information and
documents responsive to prior discovery, and promulgated under Code of Civil
Procedure §§ 2030.070 and 2031.050 — was evidently Plaintiff’s August 12, 2021
deposition.
During this deposition. Plaintiff testified
that she had updated her resume since the termination of her employment with
Defendant, and had sent approximately 30 applications for new employment.
(Papac Decl. Exh. H at pp. 18–19.) Plaintiff also testified that she had
visited certain doctors and taken certain medications to treat injuries
attributed to Defendant. (Papac Decl. Exh. G at pp. 102–109.) This testimony
did not correlate with Plaintiff’s prior response to Request for Production No.
33, which sought all documents relating to Plaintiff’s search for new
employment since January 2020, and to which Plaintiff responded that she had no
such documents. (Separate Statement.) This also belied earlier responses to
Form Interrogatories No. 212.4, 212.5, and 212.7, which sought information
concerning health care providers, medications, and future treatment
necessitated by Defendant’s alleged conduct, and to which Plaintiff responded
that she had no such information to give. (Separate Statement.)
Thus uncovering new information in
Plaintiff’s deposition, Defendant promulgated supplemental discovery seeking
the evidence indicated. But Plaintiff’s responses to this discovery consisted
only of the statement: “All objections and responses are reasserted.” (Separate
Statement.) Thus no new documents or responses were given.
Plaintiff in opposition contends
that the motions to compel further are untimely, because the underlying
discovery requests for which further responses are sought were delivered in
November 2021, and the statutory 45-day deadline for bringing motions to compel
further response has long since expired. (Opposition at p. 5.)
Plaintiff’s argument is meritless.
The present motions relate to discovery responses that were served in November
2022, not the year prior. Although Plaintiff contends that a party may not
revive a time-barred motion deadline by promulgating an identical request, the
discovery sought here is not improperly duplicative, but is specifically authorized
by Code of Civil Proceudre §§ 2030.070 and 2031.050. Plaintiff’s incomplete,
inadequate, and evasive responses to supplemental requests promulgated pursuant
to these statutes are timely and properly before the court.
Plaintiff further argues that there
is no proof that Plaintiff is in possession of responsive documents.
(Opposition at p. 7.) She also argues that her deposition itself constitutes
adequate answer to the interrogatories at issue. Both arguments fail.
Plaintiff’s testimony concerning her updated resume and dozens of employment applications
is highly suggestive that such documents presently exist in her possession. And
Plaintiff’s verbal testimony concerning medical treatment for injuries
sustained is a complement, not a substitute, to the precise written information
sought in the Form Interrogatories at issue.
The motions are GRANTED.
SANCTIONS
Statute provides that the court shall impose sanctions upon
a party who unsuccessfully makes or opposes a motion to compel further response
to interrogatories or requests for production of documents, absent substantial
justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310,
subd. (h).)
Defendant seeks a total of $4,080. in sanctions in
connection with its motions to compel further, representing 16 hours of
attorney work at $255 per hour. (Papac Decl. ¶ 12.) Such sanctions are
appropriately awarded against Plaintiff’s counsel, Dominque Westmoreland,
rather than Plaintiff individually. The deposition testimony produced by
Defendant suggests that Plaintiff delivered at least some responsive documents
to her counsel, which were not turned over to Defendant pursuant to the
requests at issue. (Papac Decl. Exh. G at p. 29.) The conclusion that the fault
lies with Plaintiff’s counsel is further corroborated by Westmoreland’s moving
papers and email correspondence.
Sanctions are awarded against Plaintiff’s counsel in the
amount of $4,080.