Judge: Lindsey E. Martinez, Case: 2021-01190837, Date: 2022-07-25 Tentative Ruling

No. 4: Tolbert v. Hudson’s Bay Company

Defendant Saks & Company, LLC, moves to compel the deposition of Plaintiff David Tolbert is GRANTED.

In a non-summary judgment motion, the opening brief and opposition are limited to 15 pages without prior leave of court. (Cal. Rules Ct., Rule 3.1113(d).) The opposition brief is 19 pages, and the court record shows no order granting Plaintiff leave to file an over-length brief. The court hereby exercises its discretion not to consider any arguments made past page 16 of Plaintiff’s opposition brief.

Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear, without having served a valid objection, the noticing party may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

On 05/12/2022, Moving Defendant served a notice of deposition for Plaintiff’s remote deposition. (Shin Decl. ¶ 14, Ex. J.) Plaintiff timely objected based, in part, on undue burden to Plaintiff. (Shin Decl., Ex. K.) It is undisputed that the first two sessions of Plaintiff’s deposition collectively exceeded seven hours. Thus, the burden falls on Moving Defendant to show good cause to take a subsequent deposition. (Code Civ. Proc., § 2025.610.)

Here, Defendant shows good cause for the subsequent deposition. Plaintiff pleads 16 causes of action. Defendant has not had the opportunity to question Plaintiff regarding the substance of Plaintiff’s wage and hour claims or some FEHA claims. (See Shin Decl. ¶ 16; DeLuca Decl., ¶ 2, Ex. 2 at p. 95.)

Whether or not Defendant was justified in suspending the fourth deposition session given Plaintiff’s counsel decision not to appear on camera, Defendant has a strong interest in discovering facts essential to defend against Plaintiff’s claims.

On 08/15/2022 at 10 am, or at any mutually agreeable time before then, Plaintiff shall appear for deposition via Zoom. The deposition shall not cover a subject that was covered in the previous deposition. The parties are encouraged to meet and confer prior to deposition, to create a list of available subjects for deposition.

Plaintiff’s counsel need not appear via video at deposition if Plaintiff’s counsel is physically in the same location as Plaintiff.

Attorneys Shin and DeLuca are reminded that they must maintain the honor and integrity that accompanies the term “officer of the court.” (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) Specifically, Attorneys Shin and DeLuca shall conduct themselves at all times with dignity, courtesy, and integrity, and show civility to opposing counsel. (Cal. Rules Ct., Rule 9.7; see OCBA Civility Guidelines.)

The court finds the circumstances make the imposition of sanctions unjust here and, therefore, denies the parties’ requests for monetary sanctions. (Code Civ. Proc., § 2025.450(g)(1).)

Moving Defendant to give notice.