Judge: John J. Kralik, Case: 22BBCV00836, Date: 2023-09-15 Tentative Ruling

Case Number: 22BBCV00836    Hearing Date: January 19, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Mayra Aguayo (“Plaintiff”) alleges that she worked at Burbank Periodontics, Dental Implants & Laser Surgery (“Burbank Periodontics”) as a hygiene coordinator from November 10, 2021 to August 15, 2022.  She alleges that her supervisors were Defendant Marc Y. Waki, Dr. Vahe Nakashyan, Dr. Taylor, and Dr. Martina Elenkova.  Plaintiff alleges that she enjoyed her work, but over time, Dr. Waki began straining the professional relationship between himself and Plaintiff and began directing a flirtatious tone toward her in January 2022.  Plaintiff alleges that Dr. Waki would get physically close to her and placed his hand on her back when no one was looking.  Plaintiff alleges that toward the end of January 2022, Dr. Waki approached her, told her she was pretty, and touched her hair and face with his hand.  Plaintiff alleges that she would try to interact with Dr. Waki only when others were around, but when others were not around, he would touch her lower on her back until he began touching her buttocks.  Plaintiff alleges that in June 2022, Dr. Waki grabbed her hand and in July 2022, he physically got close to her and told her that he wanted Plaintiff.  In late July 2022, Plaintiff alleges that she asked Dr. Waki about changing her last name after recently having gotten married, but that Dr. Waki got visibly upset and began denying her permission to leave work early on Fridays to pick up her daughter though other employees were able to come and go as they pleased.  She alleges that Dr. Waki made the decision to terminate her on August 15, 2022 without any reason.

The first amended complaint (“FAC”), filed June 23, 2023, alleges causes of action for: (1) harassment based on sex (Gov’t Code, § 12940(j)) against all Defendants; (2) discrimination based on sex (Gov’t Code, § 12940(a)) against Dr. Waki and Dr. Nakashyan; (3) discrimination based on marital status (Gov’t Code, § 12940(a)) against Dr. Waki and Dr. Nakashyan; (4) retaliation in violation of FEHA (Gov’t Code, § 12940(h)) against Dr. Waki and Dr. Nakashyan; (5) battery against Dr. Waki; (6) sexual battery (Civ. Code, § 1708.5) against Dr. Waki; and (7) wrongful termination in violation of public policy against Dr. Waki and Dr. Nakashyan.   

On June 26, 2023, Plaintiff dismissed without prejudice Defendants Burbank Periodontics, Dental Implants & Laser Surgery and Marc Y. Waki DDS from the complaint.

B.     Motion on Calendar

On December 14, 2023, Plaintiff filed a motion to compel the deposition of Dr. Waki.    

The Court is not in receipt of an opposition brief.

DISCUSSION

            Plaintiff moves to compel the deposition of Dr. Waki. 

Plaintiff states that the parties had originally agreed to conduct Dr. Waki’s deposition on August 2, 2023, but due to Plaintiff’s filing of the FAC and adding 2 new defendants, the parties agreed to continue the deposition to October 18, 2023.  Plaintiff states that due to her counsel’s scheduling conflict with trial, Plaintiff had to move the deposition and requested new dates on October 11, 2023 for some time in November or December.  (Jurczak Decl., ¶8, Ex. F [Emails].)  On October 20, 2023, Dr. Waki’s counsel’s firm informed Plaintiff’s counsel that defense counsel had a congested schedule from December to February, but that they would make Dr. Waki available for his remote deposition on January 24, 2024 at 10 a.m.  (Id., Ex. F [Emails].)  Ms. Jurczak states that to date, no dates have been received by Dr. Waki’s counsel.  (Id., ¶9.)  Plaintiff then noticed Dr. Waki’s deposition on November 15, 2023 for December 6, 2023, but offered to move the date if Dr. Waki proposed a deposition date between November or December of 2023.  (Id., ¶¶9-10, Ex. E [Second Deposition Notice].)  Plaintiff went forward with the deposition on December 6, 2023 and Dr. Waki did not appear at the deposition, such that Plaintiff obtained a certificate of non-appearance.  (Id., ¶12, Ex. I [Certificate of Nonappearance].)  Plaintiff argues that she was forced to bring this motion due to Dr. Waki’s disregard for his obligations to the lawsuit and failure of his counsel to provide dates for the deposition in November or December.  (See id., Ex. H [Emails].) 

Based on Dr. Waki’s previously proposed date of availability, it appears that Dr. Waki can be made available for his deposition on January 24, 2024.  Although an opposition brief was not filed by Dr. Waki, Dr. Waki filed an opposition to Plaintiff’s ex parte application to advance the hearing on the motion to compel.  In his opposition brief to the ex parte application, Dr. Waki argues that there is nothing to compel since he can be made available for his deposition on January 24, 2024.  Plaintiff has not stated to the contrary whether the January 24, 2024 date is inconvenient for her counsel.  As such, the parties should meet and confer to determine whether the January 24, 2024 date is a mutually agreeable deposition date so that the deposition may go forward promptly without further delays.

Plaintiff requests sanctions in the amount of $2,544.60 against Dr. Waki and his counsel of record.  The Court declines to award sanctions on this motion.  As acknowledged by Plaintiff in the motion papers, Dr. Waki made himself available multiple times prior to the filing of this motion but his deposition was continued due to Plaintiff’s filing of the FAC and Plaintiff’s counsel’s trial schedule.  Dr. Waki and his counsel also informed Plaintiff and her counsel that they would not be available for a deposition in December 2023 but Plaintiff went forward with noticing the deposition for a December date knowing that Dr. Waki would not be in attendance.  Although the January 2024 date was over 90 days from the scheduled October 2023 deposition date, Plaintiff’s counsel should have extended the courtesy of accommodating Dr. Waki and his counsel’s schedule, just as they did for Plaintiff’s counsel’s trial schedule.  (See LASC Local Rule, Appendix 3.A.(e) [“In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.”].)  Thus, the Court declines to award sanctions on this motion. 

CONCLUSION AND ORDER

            Plaintiff Mayra Aguayo’s motion to compel Dr. Waki’s deposition is granted such that the deposition will be set for January 24, 2024.  If this date is not a mutually agreeable date for the deposition, the parties are ordered to attend the hearing so that a mutually agreeable date can be ascertained and scheduled—preferably within 30 days of the hearing date. 

            No sanctions shall be awarded on this motion.

            Plaintiff shall provide notice of this order.

DATED:  January 19, 2024                                                    ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court