Judge: Holly J. Fujie, Case: 21STCV06362, Date: 2022-10-26 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.

Case Number: 21STCV06362    Hearing Date: October 26, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant The Board of Trustees of California State University (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            This action arises out of an employment relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent, investigate and remedy harassment and discrimination; (5) whistleblower retaliation; and (6) reprisal/retaliation. 

            On October 4, 2022, Moving Defendant filed a motion to compel Plaintiff’s deposition (the “Motion”) pursuant to California Code of Civil Procedure (“CCP”) sections 2025.280, 2025.450, and 2025.270.  The Motion requests that the Court order that Plaintiff’s deposition commence within two weeks of the date of this order unless Plaintiff and Moving Defendant (collectively, the “Parties”) stipulate to an alternative date. 

DISCUSSION

            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).)[1]  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); see Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (the statute also applies when the deponent simply fails to appear).)

On August 10, 2022, Moving Defendant served a notice for Plaintiff’s oral deposition for October 10, 2022.  (Declaration of Jeffrey A. Payne (“Payne Decl.”) ¶ 18, Exhibit H.)  Also on August 10, 2022, Moving Defendant’s counsel sent Plaintiff’s counsel an email asking that Plaintiff confirm within one week if October 10. 2022 was a suitable date for the deposition or to propose alternative dates.  (Payne Decl., Exhibit G.)  While Plaintiff’s counsel did not respond to Moving Defendant’s request to confirm the deposition date or propose alternative options by October 17, 2022, the Parties conferred on various occasions regarding possible alternative dates.  (See id.)  Plaintiff represented that he could not appear for the deposition until late December 2022, as a result of his counsel’s schedule.  (See id. at 1, 3.) The attempts to agree upon a date for Plaintiff’s deposition culminated on September 29, 2022, with Moving Defendant’s counsel informing Plaintiff’s counsel that if the Parties did not confirm dates by the following day, Moving Defendant would file the Motion.  (See id.) 

On October 4, 2022, Moving Defendant filed the Motion.  Also on October 4, 2022, Plaintiff served objections to the deposition notice.  (Declaration of Beth Gunn (“Gunn Decl.”) ¶ 16, Exhibit C.)^[2]  Plaintiff objected on the grounds that: (1) he was unavailable on October 10, 2022; and (2) he is not able to appear for an in-person deposition as opposed to a deposition conducted via videoconference.  (See id.)

Analysis

            Of the three bases for the Motion, only CCP section 2025.450 provides for a procedural mechanism to compel Plaintiff’s deposition.  It is undisputed that Moving Defendant filed the Motion before the October 10, 2022 date of Plaintiff’s noticed deposition.  Therefore, at the time the Motion was filed, it was premature, as Plaintiff had not yet failed to appear at the deposition.  The Court therefore DENIES the Motion without prejudice.  In addition, the Court declines to award Plaintiff monetary sanctions. 

            Notwithstanding the Motion’s procedural noncompliance with CCP section 2025.450, the Court notes that Moving Defendant is entitled to take Plaintiff’s deposition and it appears that the Parties have not yet been able to agree upon a date for the deposition to occur.  In consideration of approaching deadlines associated with the reserved April 19, 2022 hearing date for Moving Defendant’s motion for summary judgment, the Court will discuss with the Parties possible continuances for the summary judgment hearing date and/or trial dates during the hearing on this Motion. 

Moving party is ordered to give notice of this ruling.

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.

             Dated this 26th day of October 2022