Judge: Joseph Lipner, Case: 22STCV04064, Date: 2023-10-05 Tentative Ruling
Case Number: 22STCV04064 Hearing Date: October 5, 2023 Dept: 72
Lylonnie Correa v. W.K.S. Restaurant Corporation, et.
al.
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Thursday, October 5, 2023 |
[OPPOSED]
Motion
for an Order Compelling Diana Paz to Comply with Deposition Subpoena filed by
Defendants
TENTATIVE
Defendants’ Motion for an Order Compelling
Diana Paz to Comply with Deposition Subpoena is DENIED.
Background
This
case arises out of allegations of sexual harassment and gender discrimination.
Lylonnie Correa (“Plaintiff”) alleges that while working at El Pollo Loco
restaurant, owned by W.K.S. Restaurant Corporation, Nathan Olivares
(“Olivares”) sexually harassed her on multiple occasions. (Complaint, ¶ 6.)
Plaintiff alleges that she informed Olivares the sexual harassment was
unwelcome and informed two separate managers but was only met with reduced
hours. (Complaint, ¶¶ 7, 8, and 14.) After no corrective action was taken,
Plaintiff sent management a letter on January 11, 2022, informing them that she
would be resigning within a week if Olivares was not disciplined. (Complaint, ¶
10.) Human resources for the restaurant called Plaintiff, acknowledged receipt
of her letter, and stated they were going to investigate. (Complaint, ¶ 11.)
The investigation concluded that no sexual harassment had occurred. (Complaint,
¶ 12.) Plaintiff considered her employment terminated by January 26, 2022.
W.K.S.
Restaurant Corporation and Olivares (collectively, “Defendants”) filed this Motion
for an Order Compelling Diana Paz to Comply with Deposition Subpoena (“Motion”)
on July 21, 2023. Diana Paz (“Paz”) is a non-party to the action; however,
Defendants argue that she possesses valuable information that could determine material
issues within the case. An opposition (“Opposition Papers”) was filed on
September 19, 2023. A reply (“Reply Papers”) was filed on September 28, 2023.
Summary
Moving
Arguments
Defendants
argue that they properly served Paz with a deposition subpoena, and that the Paz
failed to object, respond, or appear at the deposition. The notice of
deposition was served on April 19, 2023, and the deposition was set for May 11,
2023.
Opposing
Arguments
Plaintiff files an opposition opposing the
Motion, arguing that Defendants failed to follow proper procedure per CCP §
2025.480(a) and (b). Per CCP § 2025.480, the Motion was to be made “no later
than 60 days after the completion of the record of the deposition”. Plaintiff
argues that because the Paz did not appear on the May 11, 2023 deposition, that
the record was complete as of that date. The Motion was filed on July 21, 2023,
and per Plaintiff, is therefore untimely. Plaintiff cites to several cases to support
her argument including Unzipped
Apparel, LLC v. Bader (2007) 156
Cal.App.4th 123, 127 (“Unzipped”) and Board of Registered Nursing v. Superior Court of Orange County 59 Cal.App.5th 1011, 1032-1033
(“Board of Reg.”).
Reply
Arguments
Defendants
argue on reply that Unzipped and Board of Reg. are inapplicable
because in both cases the subpoenaed party served objections. Here, the
subpoenaed party did not.
Discussion
Plaintiff
argues that the instant Motion is procedurally defective because Defendants
filed after the 60-day deadline stated in CCP § 2025.480(b) citing to Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127
(“Unzipped”) and Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011,
1032-1033 (“Board of Reg.”). Defendants attempt to distinguish the instant case from Unzipped
and Board of Reg,
arguing that CCP § 2025.480(b) does not apply. As explained below, the Court
disagrees, and will deny the instant Motion as untimely.
Legal
Standard
A motion
lies to compel deposition attendance and document production, after service of
a deposition notice, where a deponent fails to appear at, or proceed with, a
deposition, without having served a valid objection. (CCP §2025.450(a).) No
meet and confer is required to compel initial deposition attendance, but
instead there must be a declaration showing that moving party inquired about
the nonappearance. (CCP §2025.450(b)(2).)
"Implicit
in the requirement that counsel contact the deponent to inquire about the
nonappearance is a requirement that counsel listen to the reasons offered and
make a good faith attempt to resolve the issue," including by
rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.
App. 4th 1109, 1124. See also
L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to
accommodating schedules in setting depositions).)
CCP §
2025.480 states that “(a) If a deponent fails to answer any question or to
produce any document, electronically stored information, or tangible thing
under the deponent's control that is specified in the deposition notice or a
deposition subpoena, the party seeking discovery may move the court for an
order compelling that answer or production. (b) This motion shall be made no
later than 60 days after the completion of the record of the deposition, and
shall be accompanied by a meet and confer declaration under Section 2016.040.”
Analysis
The parties’
primary disagreement whether the 60-day deadline in CCP § 2025.480(b) applies
to this specific scenario, a case in which the non-party served with the
deposition subpoena, never served objections.
Plaintiff
files an opposition, arguing that Defendants failed to follow proper procedure
per CCP § 2025.480(a) and (b). Per CCP § 2025.480(b), the Motion was to be made
“no later than 60 days after the completion of the record of the deposition”.
Plaintiff argues that because Paz did not appear on the May 11, 2023
deposition, that the record was complete as of that date. The Motion was filed
on July 21, 2023, and is therefore untimely. Plaintiff cites to Unzipped and Board of Reg., arguing that both
cases applied CCP § 2025.480(b)
and denied the motions to compel.
Defendants
argue on reply that Unzipped and Board of Reg. are inapplicable
because in both cases the subpoenaed party served objections. Here, the
subpoenaed party did not. Defedants’ argument would have the Court believe that
the record of deposition was never complete, arguing that Paz’s failure to
serve objections “precludes a finding that the record was complete within the
meaning of CCP § 2025.480”. (Reply Papers, 4:18-19.)
The Court
disagrees. Nothing in section 2025.480(b) sets a different rule where a party
serves no objections. Moreover, the reasoning of Unzipped is broad,
making clear that the 60 day limit applies whenever the record of the
deposition is complete, whether that is by way of a transcript, objections, or
some other fact pattern. (Unzipped at 132-133.) Both the courts in Unzipped
and Board of Reg. commented on the statutory interpretation of CCP § 2025.480(b) saying “A business records
subpoena often results in one of two responses: a partial production based on a
few objections, or no production based on more extensive objections. Under
either scenario, upon receipt of the response, the subpoenaing party has all of
the information it needs to prepare a motion to compel.” (Unzipped at 133 and Board of Reg. at 1032.)
Therefore, although Paz failed to serve objections, the Court’s task with the
matter before it is to pinpoint when the subpoenaing party had all the information
it needed to prepare a motion to compel. That day was May 11, 2023, when Paz failed
to appear at the deposition. (Declaration of Jonas Trevethan, ¶ 6.)
Defendants
provide no contrary authority supporting their position. Defendants also provide
no justification for waiting until July 20, 2023 to attempt to contact Paz after
the non-appearance (Declaration of Jonas Trevethan, ¶ 8) nor any justification
for waiting until July 21, 2023 to file the instant Motion when it was clear
that Paz had no intention of complying with the subpoena by May 11, 2023.
Evidentiary
Objections
Because the
Motion was filed untimely, the evidentiary objections submitted upon reply are
overruled as moot.
Conclusion
Defendants’
Motion for an Order Compelling Diana Paz to Comply with Deposition Subpoena is DENIED.
Defendants
are ordered to give notice.
Lylonnie Correa v. W.K.S. Restaurant Corporation, et.
al.
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Thursday, October 5, 2023 |
Calendar #4
Motion
for an Order Compelling Plaintiff to Submit to an Independent Medical
Examination and Request for Sanctions in the Amount of $4,515.00
TENTATIVE
Defendants’ Motion for an Order Compelling Plaintiff to
Submit to an Independent Medical Examination and their Request for Sanctions in
the Amount of $4,515.00 are both DENIED.
Background
This
case arises out of allegations of sexual harassment and gender discrimination.
Lylonnie Correa (“Plaintiff”) alleges that while working at El Pollo Loco
restaurant, owned by W.K.S. Restaurant Corporation, Nathan Olivares
(“Olivares”) sexually harassed her on multiple occasions. (Complaint, ¶ 6.)
Plaintiff alleges that she informed Olivares the sexual harassment was
unwelcome and informed two separate managers but was only met with reduced
hours. (Complaint, ¶¶ 7, 8, and 14.) After no corrective action was taken,
Plaintiff sent management a letter on January 11, 2022, informing them that she
would be resigning within a week if Olivares was not disciplined. (Complaint, ¶
10.) Human resources for the restaurant called Plaintiff, acknowledged receipt
of her letter, and stated they were going to investigate. (Complaint, ¶ 11.)
The investigation concluded that no sexual harassment had occurred. (Complaint,
¶ 12.) Plaintiff considered her employment terminated by January 26, 2022.
The
initial Complaint was filed by Plaintiff on February 2, 2022. W.K.S. Restaurant
Corporation and Olivares (collectively, “Defendants”) filed the instant Motion
for an Order Compelling Plaintiff to Submit to an Independent medical
Examination and Request for Sanctions in the Amount of $4,515.00 (“Motion”) on September
6, 2023. An opposition (“Opposition Papers”) was filed on September 26, 2023.
No reply was filed.
Discussion
Legal
Standard
The governing
rule is CCP § 2032.020 which provides: “(a) Any party may obtain discovery,
subject to the restrictions set forth in Chapter 5 (commencing with Section
2019.010), by means of a physical or mental examination of (1) a party to the
action, (2) an agent of any party, or (3) a natural person in the custody or
under the legal control of a party, in any action in which the mental or
physical condition (including the blood group) of that party or other person is
in controversy in the action.”
CCP §
2032.250(b) provides that: “The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel compliance with
a demand for a physical examination, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.”
Analysis
Defendants
argue that because Plaintiff placed her mental and emotional health at issue
via her Complaint, they are entitled to conduct an independent medical
examination (IME) of Plaintiff’s mental health status as per CCP § 2032.020.
Although Defendant is correct, Plaintiff argues pursuant to CCP § 2032.320(b) – CCP §
2032.320(c)(2), the Court shall not order a mental examination if (1) no claim
is being made for mental and emotional distress over and above that usually
associated with the physical injuries claimed, and (2) no expert testimony
regarding this usual mental and emotional distress will be presented at trial
in support of the claim for damages.
In her
Opposition Papers, Plaintiff states both stipulations clearly. Additionally,
the Court sees no showing of exceptional circumstances.
Conclusion
Accordingly, Defendants’ Motion for an Order Compelling
Plaintiff to Submit to an Independent Medical Examination and their Request for
Sanctions in the Amount of $4,515.00 are both DENIED.
Defednants
are ordered to give notice.