Judge: Kristin S. Escalante , Case: 22STCV14548, Date: 2023-04-26 Tentative Ruling

Case Number: 22STCV14548    Hearing Date: April 26, 2023    Dept: 24

Plaintiff’s motion for sanctions against party-affiliated witness Cnydie Ayala and counsel of record for misuse of discovery process.

The Motion for Sanctions against party affiliated witness Cyndie Ayala and counsel of record for misuse of discovery process; reservation no.: 854386562374 filed by Plaintiff Rebecca Erlich on 03/27/2023 is DENIED. Plaintiff’s request for sanctions is DENIED.

Plaintiff Rebecca Ehrlich (“Plaintiff”) moves for sanctions in the amount of $8,524.15 against party-affiliated witness Cyndie Ayala (“Deponent”) and her counsel Rachel McClintock for misuse of the discovery process. (Notice of Mtn., at p. 2 [citing Code Civ. Proc., §2023.030 et seq].) Plaintiff moves for sanctions under Code of Civil Procedure Sections 2023.030 (“Section 2023.030”) and 2023.010 (“Section 2023.010”). Defendant, in turn, seeks sanctions in $2,500 against Plaintiff’s counsel.

Discussion

Plaintiff moves for sanctions against Defendant’s counsel and Deponent under Section 2023.030 and Section 2023.010. Section 2023.010 simply describes conduct which qualifies as misuse of the discovery process. And Section 2023.030 authorizes monetary sanctions only to the extent authorized by the Code of Civil Procedure chapter governing any particular discovery method. (Code Civ. Proc., §2023.030; see also City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504, review granted Jan. 25, 2023, [persuasive authority only, Rules of Ct. Rule 8.1104, 8.1115].) Plaintiff does not bring a motion to compel further responses to the request for production or move to compel further deposition testimony from Deponent. Thus, Plaintiff has not sought sanctions in conjunction with a specific discovery violation. Accordingly, the motion is procedurally improper and denied on that ground. Additionally, the court notes, it requires an informal discovery conference prior to any motion to compel further discovery. 

Assuming arguendo the motion was not procedurally improper, the court address Plaintiff’s arguments briefly. Plaintiff seeks sanctions for two reasons: (i) Deponent’s alleged failure to adequately search for documents prior to the deposition, and (ii) Deponent’s allegedly improper request for a remote deposition considering her daughter’s health condition.

The court’s review of the deposition testimony reveals that Deponent stated she had not checked for documents prior to the deposition, but that “at the beginning I did, yes. They’ve been produced, and I don’t have them currently.” (Pessah Decl., Ex. F, at p. 47:14-16.) Deponent declares that during her deposition she attempted to explain that she had looked for document previously and her statements were taken out of context. (Ayala Decl., ¶11.) Thus, it does not appear that Deponent failed to provide documents prior to the deposition as a bad faith tactic. Rather, Deponent previously searched and believed she had produced all responsive documents. After being asked to look again at the deposition, she did, and found a small number of documents which Defendant produced. This does not demonstrate a misuse of discovery. However, if after an IDC it appears a motion to compel further is necessary, then Plaintiff will have that option.

As to the request for a remote deposition, Plaintiff, after accommodating Deponent’s request, argues it was improper. Specifically, because Deponent stated her daughter has a life and death condition, but also went to a large event, Deponent and Defendant’s counsel acted in bad faith. Plaintiff impliedly argues Deponent was either lying or does not take her daughter’s life-threatening condition seriously. In the testimony provided by Plaintiff, Deponent testified she went to a large event (of about 150 people), Deponent mostly stayed on the outdoor patio with about 10 people, Deponent went inside at some point without a mask, and that the event was for the retirement of a woman Deponent work for over thirty years. (Pessah Decl., Ex. F, at pp. 106:07-107:23.) Plaintiff provides Deponent’s declaration that after attending the event, she quarantined for five days. (Ayala Decl., ¶10.) The court declines to take Plaintiff’s view of the above testimony. Deponent’s attendance at a single life event of a colleague does not disprove her daughter’s illness, Deponent’s role as caretaker, or her request for accommodations. Rather, it appears Deponent, while caring for her daughter, attended an event and took all the precautions she had available to so attend. When faced with a deposition where sufficient precautions were unavailable, Deponent requested it be remote, and Plaintiff accommodated the request. This does not demonstrate a misuse of the discovery process.

In its opposition, defendant seeks sanctions against plaintiff’s counsel for bringing this motion for an improper purpose.  Although a close call, that request is denied without prejudice.  It does, however, appear that plaintiff’s counsel’s conduct goes up to the edge of acceptable advocacy, and sometimes oversteps it. The allegations involving Deponent’s daughter are particularly inappropriate and unpleasant.