Judge Holly J. Fujie, Case 19STCV23747 2023-01-17 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This order concerns two motions regarding the deposition of Plaintiff A.C. (“A.C.”), who is the plaintiff in the related/consolidated action entitled A.C. v. Los Angeles Unified School District, et al., LASC Case No. 20STCV01832. Defendant Los Angeles Unified School District (“LAUSD”) filed a motion to compel A.C.’s deposition (the “MTC”) and A.C. filed a motion for protective order (the “MPO”) (collectively, the “Motions”).

A.C.’s currently operative first amended complaint (the “FAC”) alleges: (1) sexual abuse of a minor; (2) intentional infliction of emotional distress; (3) sexual harassment; (4) negligent hiring, supervision, and retention of unfit employee; (5) breach of mandatory duty; (6) failure to report suspected child abuse; (7) negligent supervision of a minor; (8) negligent failure to warn, train, or educate; and (9) negligence.

On December 13, 2022, LAUSD filed the MTC and on December 20, 2022, A.C. filed the MPO. The Motions both concern the second session of A.C.’s deposition.

Under California Code of Civil Procedure (“CCP”) section 2025.450, if, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party, without having served a valid objection, fails to appear for examination, or to proceed with it, or to produce for inspection 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. (CCP § 2025.450, subd. (a).) The motion must both: (1) 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; and (2) include a meet and confer declaration pursuant to CCP section 2016.040, or, when 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, subd. (b)(1)-(2).)

Under CCP section 2025.420, subdivision (a), before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.¿ (CCP § 2025.420,¿subd. (a).)¿ The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.¿ (CCP § 2025.420,¿subd. (b).)¿ CCP section 2025.420, subdivision (b) sets forth a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all or that the deposition be taken at a different time. (See id.) The burden is on the party seeking the protective order to show good cause for whatever order is sought. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) The issuance and formulation of protective orders are to a large extent discretionary, and a ruling on such motions will not be disturbed absent abuse of discretion. (Id. at 316-17.)

The first session of A.C.’s deposition was taken on October 27, 2021. (Declaration of Arthur C. Preciado (“Preciado Decl.”) ¶ 5.)[1] During this session, A.C. testified for two periods of approximately forty minutes each (with two breaks in between). (Id.) A.C. requested a third break, at which point he was escorted out of the room by his attorney, who subsequently informed Moving Defendant’s counsel that A.C. would not be returning. (Id.)

On January 12, 2022, A.C. and LAUSD (the “Parties”) participated in an informal discovery conference (“IDC”).[2] During the IDC, the Parties agreed to engage a discovery referee to oversee and monitor the deposition. (Preciado Decl. ¶ 7.) On January 31, 2022, the Parties entered into a stipulation (the “Stipulation”) providing that they agreed to engage Judge Joseph Hilberman to serve as the discovery referee for A.C.’s second deposition session pursuant to CCP section 638. (Preciado Decl. ¶ 8.)

On February 24, 2022, after meeting with the Parties’ counsel and reviewing the earlier iterations of the Motions (which were not fully briefed), Judge Hilberman ruled that A.C.’s second deposition should proceed on April 5, 2022 and be limited to 2.5 hours with questioning consistent with Evidence Code section 765, subdivision (b). (See Declaration of Peter A. Reagan (“Reagan Decl.”) ¶ 30, Exhibit 12.)[3] LAUSD did not agree to the time limitation set by Judge Hilberman and objected to Judge Hilberman ruling on issues that were raised in the earlier versions of the Motions. (See Preciado Decl. ¶ 9, Exhibit B; Reagan Decl. ¶ 31.) The Parties have since been unable to agree on what time limitation should be placed on the continued deposition. (Preciado Decl. ¶ 11.)

LAUSD takes the position that Judge Hilberman improperly set limitations before the deposition occurred because the Parties agreed only that he would serve as a referee during the deposition. (See Preciado Decl. ¶ 9.) LAUSD further argues that setting a time limit on the deposition infringes upon its entitlement to seven hours of deposition testimony under CCP section 2025.290.

A.C. argues that Judge Hilberman’s ruling is binding because his appointment was pursuant to CCP section 638. (See CCP §644.) LAUSD further argues that imposing a time limitation on A.C.’s deposition is appropriate because of A.C.’s age and the nature of the allegations in the FAC.[4]

The Court observes that the Stipulation provides that the Parties agreed that Judge Hilberman would serve as the discovery referee “for the second session of Plaintiff A.C.’s deposition,” and thus does not expressly prohibit him from preliminarily setting conditions on the deposition before it proceeds. In addition, the Court does not take issue with the parameters set by Judge Hilberman. Furthermore, with respect to the MPO, LAUSD provides no estimation of the amount of time it anticipates will be required to complete A.C.’s deposition. A.C. provides evidence that four Plaintiffs in the consolidated cases have been deposed and that their depositions lasted between 2.5 and four hours on average. (Reagan Decl. ¶ 14.)[5]

The Court finds that A.C. has demonstrated good cause for imposing a time limitation on the deposition due to his age and the subject matter of his allegations, and in light of the fact that the first session of his deposition was terminated because he became too tired to continue questioning. (See Reagan Decl. ¶¶ 19-20.) The Court therefore GRANTS the MPO. A.C.’s deposition is to proceed and be conducted in accordance with the conditions set by Judge Hilberman. If LAUSD is unable to complete A.C.’s deposition within 2.5 hours, it may continue the deposition in a later session in a manner consistent with any conditions imposed by Judge Hilberman.[6] The Court DENIES A.C.’s request for monetary sanctions. Based on the foregoing, the Court GRANTS the MTC in part.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Preciado Declaration was offered in support of LAUSD’s MTC.

[2] Before the January 12, 2022 IDC, the Parties had filed a motion to compel and a motion for protective order concerning A.C.’s deposition.

[3] The Reagan Declaration was offered in support of A.C.’s MPO.

[4] A.C. is currently nine years old. (Reagan Decl. ¶ 4.) The alleged conduct underlying the FAC occurred when he was approximately five and six years old. (Id.)

[5] The Plaintiffs whose depositions have been taken are older than A.C.; their ages range from 12 to 14 years old. (Reagan Decl. ¶ 14.)

[6] If necessary to complete discovery, the Parties may request that the trial be continued.