Judge: Jill Feeney, Case: 19STCV17962, Date: 2022-10-03 Tentative Ruling
Case Number: 19STCV17962 Hearing Date: October 3, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 3, 2022
19STCV17962
Motion to Compel Attendance of Bus Driver Nakeya Whitman to Appear for Deposition filed by Plaintiff Leticia Garcia
DECISION
The motion is granted with the caveat below.
The deposition of Nakeya Whitman, an employee of Defendant, was noticed for August 16, 2022. No objection was filed to the deposition notice. Ms. Whitman did not appear for deposition.
In light of the history of this issue between the parties and before the Court, the meet and confer requirement has been satisfied. Moreover, the claim that Plaintiff cancelled the deposition (as opposed to Ms. Whitman failing to attend) does not hold water when: (1) as of the date and time of the deposition, Defendant did not respond to Plaintiff’s communication requesting confirmation that the deposition was in fact going forward that day and (2) Ms. Whitman did not contact Defendant or anybody else about the deposition, even though Defendant notified her of the date of the deposition numerous times and by numerous methods.
Plaintiff has requested sanctions in the amount of $2,860 (7 hours of attorney time at $400 per hour plus $60 filing fee) be imposed against Defendant and Defendant’s counsel. The Court finds that sanctions should be imposed here. There is no indication that Defendant acted with substantial justification or other circumstances make imposing sanctions unjust.
These sanctions are due within 20 days after the date of this order.
Defendant contends that it should not be held accountable in this instance due to the fact that Ms. Whitman was on medical leave at the time of the deposition and that because of this fact Defendant could not compel her appearance at the deposition. However, Defendant has provided no authority for the proposition that pursuant to the California Family Rights Act and the Family and Medical Leave Act of 1993 an employer cannot compel an employee to comply with legal court process while on medical leave. Defendant attempts to equate requiring an employee to participate in a deposition for a few hours to requiring that employee to assume light work duties on a regular work schedule. These items are not equivalent.
Now, there is another issue. Defendant states that as of August 26, 2022, Ms. Whitman no longer works for the MTA. Defendant did not inform Plaintiff of this fact until it filed the opposition to this motion.
For this reason, the Court cannot enforce any order requiring Defendant MTA to produce Ms. Whitman for deposition.
Plaintiff therefore must make a motion compelling Ms. Whitman’s attendance under Code Civ. Proc. Section 1987.1 if Plaintiff wishes to compel her appearance.
The Court orders that
Moving party is to provide notice.
