Judge Holly J. Fujie, Case 21STCV06362 2023-03-02 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.

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

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 January 30, 2023, Moving Defendant filed a motion for sanctions (the “Motion”). The Motion seeks sanctions against Plaintiff’s attorney Beth Gunn (“Gunn”) for evading service of a deposition subpoena and for rejecting personal service of filings in this action on Plaintiff’s behalf.

Moving Defendant’s objections to the Declaration of Beth Gunn (“Gunn Decl.”) numbers 1-5, 7-11, and 13-19 are OVERRULED. Objections to the Gunn Declaration numbers 6 and 12 are SUSTAINED (insofar as the excerpts constitute hearsay.).

Under California Code of Civil Procedure (“CCP”) section 2023.030, after notice to any affected party, person, or attorney, where a party engages in misuse of discovery process, the court may impose monetary, issue, evidence, terminating, or contempt sanctions. (See CCP § 2023.030.)

Moving Defendant prepared a subpoena (the “Subpoena”) in order to take Gunn’s deposition as a witness based on her personal relationship with Plaintiff. (See Declaration of Jeffrey A. Payne (“Payne Decl.) ¶ 2.)[1] Moving Defendant initially attempted to serve Gunn with the subpoena electronically on November 1, 2022. (Payne Decl. ¶ 3.) On January 13, 2023, Gunn communicated that she would not accept electronic service of documents in her individual capacity. (Payne Decl. ¶ 7, Exhibit D.) Gunn also communicated that Moving Defendant was required to electronically serve documents on Plaintiff. (Id.) Moving Defendant attempted to serve Gunn at her office over the weekend of January 13, 2023 and attempted to serve her at her residence on January 17, 2023. (Payne Decl. ¶ 8.) Moving Defendant thereafter filed an ex parte application for an order deeming service of the Subpoena effective. (Payne Decl. ¶ 10.) On January 23, 2023, the Court denied the ex parte application. Moving Defendant attempted to thereafter coordinate service with Gunn, but did not hear back from her until January 26, 2023. (See Payne Decl. ¶¶ 12-13.) On January 25, 2023, Moving Defendant attempted to serve Gunn at her office. (Payne Decl. ¶ 13.) Gunn was not in the office, but her office manager informed the process server that she was authorized to accept substitute service. (See Payne Decl. ¶¶ 13-14, Exhibit I.) Moving Defendant then attempted to serve Gunn at her residence but was unsuccessful. (Payne Decl. ¶ 13.) Gunn was ultimately served with the deposition subpoena at her office on Tuesday, January 31, 2023. (Gunn Decl. ¶ 12.) Gunn declares that she did not alter her personal habits to avoid service. (Gunn Decl. ¶ 13.)

The Court declines to issue sanctions at this time. Gunn has now been served and the Court does not find that Moving Defendant’s earlier unsuccessful attempts to complete service evidence a misuse of the discovery process that warrants sanctions.

With respect to service of electronic documents on Plaintiff, CCP section 1010.6 provides: “A person represented by counsel shall, upon the request of any person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” (CCP § 1010.6, subd. (b)(4).) Moving Defendant contends that this provision does not foreclose personal service because the statute is silent on the matter. The statute, however, provides for mandatory electronic service of documents that may be served by mail, express mail, overnight delivery, or facsimile transmission—to the extent that Moving Defendant is serving Plaintiff with documents that may be served by these manners, the statute implies that electronic service is mandatory.

The Court therefore DENIES the Motion. The Court additionally DENIES Plaintiff’s request for sanctions.

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 facts forming underlying Moving Defendant’s desire to depose Gunn have previously been the subject of a motion to disqualify counsel followed by Moving Defendant and a motion for sanctions filed by Gunn, both of which the Court denied.