Judge Jill Feeney, Case 19STCV17962 2022-07-26 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Plaintiff now has the opportunity to file further motions as outlined below if no agreement is reached with respect to the deposition.

Whatever course of action taken, the Court expects that any motion or motions necessary be filed within 60 days after the date of this order at the latest.

There is no need to serve a deposition subpoena on an opposing party in order to take that party’s deposition. Proper service of notice of deposition compels the opposing party to appear, to testify and to produce documents if requested. (CCP Section 2025.280(a).) This procedure applies to employees of parties as well. (Ibid.)

In order to seek sanctions against the MTA, Plaintiff should serve a notice of deposition for Nakeya Whitman on the Defendant. If the deponent does not appear for examination, Plaintiff may move for a motion to compel attendance, after meeting all requirements necessary to file such a motion. (CCP Section 2025.450(a), (b).)

Beyond that, it is the obligation of Defendant MTA to move for a protective order or to quash the notice if Defendant MTA believes that there is a legal basis to so move. (CCP Sections 2025.410(c), 2025.420.)

If a motion to compel attendance is then granted and an order to appear ignored, Plaintiff may move for sanctions against Defendant MTA itself.

The Court notes that the cases cited by Defendant do not support the claim that asking employees to comply with legal process constitutes interference with leave under either the CRFA or the FMLA. This particularly true in light of the fact that Ms. Whitman has been on long term disability since July 2021 and the MTA has no timeframe for her return.

Because of the various ex partes and motions filed on the issue of the production of the bus driver, the record is muddled. It needs to be clarified as set forth above in order for the Court to impose sanctions against Defendant.

In an effort to break the log jam created by the MTA’s position that it could not legally produce Ms. Whitman for deposition because she is on disability leave, the Court suggested that Plaintiff treat Ms. Whitman as a third-party witness after the Court ordered the MTA to produce the name and address of Ms. Whitman. The Court believed, wrongly, that Ms. Whitman would comply and the case could move forward.

Instead, Ms. Whitman has not complied with the properly served subpoena. Plaintiff here, however, does not move for an order compelling her attendance under CCP Section 1987.1. If Plaintiff proceeds in this manner, Plaintiff should serve a copy of the motion on Ms. Whitman.

Code of Civil Procedure section 1987.1 provides, [i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) . . . may make an order . . . directing compliance with it upon those terms and conditions the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).) Subdivision (b) of Code of Civil Procedure section 1987.1 provides a “party” is a person who may make a motion under subdivision (a). (Id. § 1987.1, subd. (b)(1).)

An individual who disobeys a deposition subpoena may be sued civilly and ordered to pay $500 to the deposing party, plus all damages that the party sustained because of the failure to attend. (Code Civ. Proc. § 1992.) Moreover, the individual may be punished for contempt. (Code Civ. Proc. §§ 2020.240, 2025.440(b).)

The Court assumes that Ms. Whitman does not want to be in defiance of a subpoena and subject to the sanctions that may be imposed as a result. The Court urges the MTA to contact Ms. Whitman about this issue if contact has not been established already.

It would be in the best interests of all parties, including Ms. Whitman, that she appear for deposition without the need for further litigation or court orders. Although the Court is sympathetic to whatever Ms. Whitman’s situation may be, she has been on leave since July 2021. There is no information indicating that Ms. Whitman is physically or otherwise unable to sit for a deposition. In short, her deposition cannot be delayed indefinitely because she is on leave.