Judge: Lisa R. Jaskol, Case: 22STCV22258, Date: 2024-04-08 Tentative Ruling
Case Number: 22STCV22258 Hearing Date: April 8, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. The complaint, amendments, and answers
On July 11, 2022, Plaintiff Ebony Tay (“Plaintiff”) filed this action against Defendants Neiman Marcus Group LLC, Doe 1, and Does 2-100 for premises liability, negligence, and negligent hiring, supervision, and retention.
On August 8, 2022, Defendant The Neiman Marcus Group, Inc. (erroneously sued as Neiman Marcus Group LLC) filed an answer.
On December 29, 2023, Plaintiff amended the complaint to include Defendants The Neiman-Marcus Group, Inc. as Doe 2 and The Neiman Marcus Group, LLC as Doe 3.
On January 25, 2024, Defendant The Neiman Marcus Group LLC f/k/a The Neiman Marcus Group, Inc., improperly named as The Neiman Marcus Group, Inc. (Doe 2) and Defendant The Neiman Marcus Group LLC f/k/a The Neiman Marcus Group, Inc., improperly named as The Neiman Marcus Group, LLC (Doe 3) filed answers.
On February 22, 2024, Plaintiff amended the complaint to include Defendant Lidija Lilija as Doe 1.
B. Motion and amended motion to compel depositions, to appoint a discovery referee, and for sanctions
On November 16, 2023, Plaintiff filed a motion to compel the depositions of Defendant Neiman Marcus Group, LLC’s employees Aisha McQueen, Allyson Sims, an unknown male, and an unknown female, and for sanctions. The motion was set for hearing on December 27, 2023.
On December 13, 2023, Defendant Neiman Marcus Group, LLC (“Neiman”) filed an opposition.
On December 14, 2023, Plaintiff rescheduled the hearing on the motion for February 29, 2024.
On February 1, 2024, Plaintiff filed an amended motion to compel the depositions of Neiman’s employees Aisha McQueen, Allyson Sims, an unknown male, an unknown female, and Dr. Joshua Prager, for appointment of a discovery referee, and for sanctions. The motion was set to be heard on February 29, 2024. On February 20, 2024, Neiman filed an opposition to the amended motion and a request for sanctions. On February 22, 2024, Plaintiff filed a reply. The Court continued the hearing to April 8, 2024.
Trial is currently scheduled for July 9, 2024.
C. Improper bundling of motions
Plaintiff has filed one purported motion which contains requests to compel five different depositions and to appoint a discovery referee. As a result, instead of giving each request its own place on the calendar and time for Court consideration, the Court was required to provide tentative rulings on six substantive matters within the time provided for one matter. The Court admonishes Plaintiff that the Court will refuse to consider any future motions that contain more than one properly presented issue.
PARTIES’ REQUESTS
Plaintiff asks the Court (1) to compel Neiman to produce Aisha McQueen, Allyson Sims, an unknown male employee, an unknown female employee, and Dr. Joshua Prager for depositions, (2) to appoint a discovery referee at Neiman’s expense, and (3) to award monetary sanctions against Neiman.
Neiman asks the Court (1) to deny the motion to compel depositions, (2) to order Plaintiff to bear the cost of a discovery referee, and (3) to award monetary sanctions against Plaintiff.
LEGAL STANDARD
A. Depositions
Code of Civil Procedure section 2025.280, subdivision (a), provides:
“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”
(Code Civ. Proc., § 2025.280, subd. (a).)
Code of Civil Procedure section 2025.450 provides in part:
“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice 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.
“(b) A motion under subdivision (a) shall comply with both of the following:
“(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
* * *
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g)(1).)
California Rules of Court, rule 3.1345(a) provides that, except as provided in subdivision (b), a motion to compel answers at a deposition must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).) Subdivision (b) provides that a separate statement is not required when “no response has been provided to the request for discovery.” (Cal. Rules of Court, rule 3.1345(b)(1).)
B. Discovery referee
Code of Civil Procedure section 639 provides in part:
“(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:
* * *
“(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.
* * *
“(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:
“(1) When the referee is appointed pursuant to paragraph (1), (2), (3), or (4) of subdivision (a), a statement of the reason the referee is being appointed.
“(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.
“(3) The subject matter or matters included in the reference.
“(4) The name, business address, and telephone number of the referee.
“(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).
“(6) (A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.
“(B) In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee’s fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party’s ability to proceed with the litigation.
“(e) In any matter in which a referee is appointed pursuant to paragraph (5) of subdivision (a), a copy of the order appointing the referee shall be forwarded to the office of the presiding judge of the court. The Judicial Council shall, by rule, collect information on the use of these references and the reference fees charged to litigants, and shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.”
(Code Civ. Proc., § 639, subds. (a)(5), (c), (d), (e).)
California Rules of Court, rule 3.920(c), provides that “A discovery referee must not be appointed under Code of Civil Procedure section 639(a)(5) unless the exceptional circumstances of the particular case require the appointment.” (Cal. Rules of Court, rule 3.920(c); see Cal. Rules of Court, rules 3.921-3.922.)
DISCUSSION
A. Depositions
1. Allyson Sims
On October 10, 2023, Plaintiff noticed the deposition of Neiman employee Allyson Sims (“Sims”) for October 27, 2023. On October 19, 2023, Neiman served an objection to the deposition notice. The parties rescheduled Sims’s deposition for January 29, 2024.
On January 29, 2024, Sims appeared for her deposition. However, Plaintiff’s counsel adjourned the deposition after about two hours based on Neiman’s counsel’s allegedly unprofessional behavior. (Abrolat Dec. ¶ 17 & exh. 14.)
Plaintiff has not provided a separate statement to support her request to compel Neiman to produce Sims for the remainder of her deposition. (See Cal. Rules of Court, rule 3.1345.) The Court therefore denies the motion to compel the resumption of Sims’s deposition.
2. Aisha McQueen
On October 10, 2023, Plaintiff noticed the deposition of Neiman employee Aisha McQueen (“McQueen”) for October 26, 2023. On October 19, 2023, Neiman served an objection to the deposition notice.
The parties rescheduled McQueen’s deposition for February 1, 2024. Plaintiff’s counsel canceled the deposition based on Neiman’s counsel’s allegedly unprofessional behavior during Sims’s January 29, 2024 deposition. (Abrolat Dec. ¶ 18 & exh. 14.)
Because Plaintiff’s counsel canceled McQueen’s deposition and has not presented any evidence showing that Plaintiff attempted to reschedule it, the Court denies Plaintiff’s motion to compel McQueen’s deposition. (See Code Civ. Proc., § 2025.450, subd. (a).)
The parties scheduled Dr. Prager’s deposition for February 6, 2024. Plaintiff’s counsel canceled the deposition based on Neiman’s counsel’s allegedly unprofessional behavior during Sims’s January 29, 2024 deposition. (Abrolat Dec. ¶ 18 & exh. 14.)
Because Plaintiff’s counsel canceled Prager’s deposition and has not presented any evidence showing that Plaintiff has attempted to reschedule it, the Court denies Plaintiff’s motion to compel Prager’s deposition. (See Code Civ. Proc., § 2025.450, subd. (a).)
4. The “unknown male” and “unknown female” Neiman employees
Plaintiff asserts that on September 20, 2023 she properly noticed the depositions of unknown male and unknown female Neiman employees seen in video footage. The deposition notice for the male employee identified the employee as “Defendant’s employee who appears male, is seen on videos standing near the counter case with white gloves, appears to be wearing a headset and makes pointing motions down the isle of where Plaintiff was injured.” (Exh. 1.) The deposition notice for the female employee identifies the employee as “Defendant’s employee who appears female, seen on videos passing by Plaintiff at the time of Plaintiff’s fall and/or injury.” (Exh. 1.) The depositions were set for October 2 and 3, 2023.
Neiman did not object to these deposition notices. The depositions evidently did not take place on October 3 and 4, 2023. On December 20, 2023, Neiman's counsel informed Plaintiff's counsel:
“The ‘unknown’ female does not have her work schedule
for January yet – as soon as she has her schedule we will provide a [deposition]
date. In the meantime, please provide me with dates that you’re available in
January so we can coordinate with her work schedule. [¶] We are attempting to reach the ‘unknown
male’.” (Exh. 9 to Abrolat Dec.)
On January 3, 2024, Neiman's counsel told Plaintiff's counsel that "Jane Doe" was available on January 30, 2024. Plaintiff's counsel responded that she was available for Jane Doe's deposition on February 15 or 16, 2024. Neiman's counsel responded that Jane Doe did not have her February work schedule yet.
In Neiman's opposition to Plaintiff's initial motion to compel, Neiman asserted that the “unknown male” and “unknown female” no longer work for Neiman. (Lenkov dec. Dec. 13, 2023 ¶ 20.) But Neiman has not shown that the “unknown male” and “unknown female” were not Neiman employees when Plaintiff served the deposition notices and on the dates of the scheduled depositions.
Even if Plaintiff did not give Neiman enough information to identify the “unknown” employees in time for them to appear at the depositions scheduled for October 2 and 3, 2023, Neiman waived this objection by failing to serve objections to the deposition notices. Plaintiff’s counsel met and conferred with Neiman’s counsel in an attempt to reschedule the depositions. (See Exh. 9 to Abrolat Dec.) Plaintiff was not required to provide a separate statement to support her motion to compel the depositions of these witnesses. (Cal. Rules of Court, rule 3.1345(b)(1).) The Court grants Plaintiff’s motion to compel Neiman to produce the “unknown male” and “unknown female” for deposition.
B. Discovery referee
Plaintiff asks the Court to appoint a discovery referee to attend all future depositions, arguing that Neiman’s counsel obstructed Plaintiff’s attempts to depose Sims and Neiman’s person most qualified, William Drew, and insulted Plaintiff’s counsel in email correspondence. Plaintiff argues that “[Neiman’s counsel’s] gross unprofessional misconduct in both [Drew’s] and Sims’ depositions and in other communications demonstrates that exceptional circumstances are present.” (Amended Motion p. 13.)
In addition, Plaintiff asks the Court to require Neiman to pay for the discovery referee, arguing that “it is [Neiman’s] attorney’s pattern of conduct that warrants the need for a referee.” (Amended Motion p. 13.)
Neiman does not object to the appointment of a discovery referee, but argues that Plaintiff should bear the expense because, according to Neiman, Plaintiff’s counsel was at fault.
The
Court has reviewed the deposition transcript excerpts attached to the amended
motion and opposition and finds that exceptional circumstances exist warranting
the special appointment of a discovery referee for the limited purpose of
monitoring depositions and making recommendations to the Court, including
sanctions recommendations. These
circumstances consist of the inability of counsel for Plaintiff and Neiman to
avoid rancorous clashes which disrupt the deposition and obstruct the discovery
process.
Although the Court does not
apportion blame between counsel, the Court agrees that some of Neiman’s counsel
statements were inappropriate. (See,
e.g., Drew deposition p. 90 [“I don't care what you [Plaintiff’s counsel]
tolerate, it's the most preposterous deposition where you're sitting all day
asking nonsense questions, ‘What is the policy in the back room? Do they have
cleaning supplies in the bathroom?’ I mean just move on already”]; Sims
deposition p. 13 [“I mean I can ask your questions if you want my help”]; Sims
deposition p. 15 [“It’s all nonsense . . . All fabricated by you [Plaintiff’s
counsel]”].) But it is also unclear why Plaintiff's counsel thought it was appropriate to inform Sims that Neiman's counsel did not represent her (Sims) and to state that Neiman's counsel had a "conflict of interest." (Sims deposition pp. 52, 54.)
The Court appoints a discovery referee under Code of Civil Procedure section 639, subdivision (a)(5), to monitor all future depositions taken in this case and make recommendations (including sanctions recommendations) to the Court. The Court appoints the referee because antagonism between counsel for Plaintiff and Neiman threatens to disrupt the discovery process. The deposition excerpts attached to the parties’ filings establish exceptional circumstances by demonstrating that counsel cannot resolve their disagreements without the help of a discovery referee.
Neither party has established an inability to pay a pro rata share of the referee’s fees. (Code Civ. Proc., § 639, subd. (d)(6)(A).) Therefore, each party will pay a pro rata share of the referee’s fee.
If Plaintiff and Neiman do not agree on the selection of the referee or referees, each party shall submit to the Court up to three nominees for appointment as referee and the Court shall appoint one or more referees, not exceeding three, from among the nominees against whom there is no legal objection. (See Code Civ. Proc., § 640, subd. (b).)
Plaintiff and Neiman are ordered to meet and confer and submit to the Court a stipulation concerning the maximum hourly rate the referee may charge and the maximum number of hours for which the referee may charge. (See Code Civ. Proc., § 639, subd. (d)(5).) If Plaintiff and Neiman cannot reach an agreement, the parties may submit briefing on the issues.
C. Monetary sanctions
1. Plaintiff’s request for sanctions
Plaintiff requests sanctions of $3,843.00 based on 3.9 hours of attorney time to prepare the motion at a rate of $970.00 per hour and one $60.00 filing fee. Plaintiff does not, however, explain how much time her counsel spent on each of the separate requests contained in the motion.
Plaintiff is entitled to attorney fees only on her request to compel Neiman to produce the “unknown male” and “unknown female” employees for deposition. (See Code Civ. Proc., § 2025.450, subd. (g)(1).) The Court has denied Plaintiff’s other requests to compel depositions and sanctions are not available on a motion to appoint a discovery referee.
The Court grants Plaintiff sanctions of $560.00 based on two hours of attorney time at a reasonable rate of $250.00 per hour and one filing fee for Plaintiff’s motion to compel Neiman to produce the “unknown male” and “unknown female” employees for deposition. In all other respects, the Court denies Plaintiff’s request for sanctions.
2. Neiman’s request for sanctions
Neiman requests sanctions for “misuse of the discovery process” under Code of Civil Procedure section 2023.010, subdivision (c), arguing Plaintiff’s counsel’s conduct during Sims’s deposition was “extremely embarrassing, oppressive, and frivolous.”
“[Code of Civil Procedure section 2023.010 is] ‘definitional’ and monetary sanctions may not be imposed based solely on [the statute]. Monetary sanctions may be imposed only if authorized by some other provision of the Discovery Act.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:1900, p. 8M-2; see Code Civ. Proc., § 2023.030 [court may impose sanctions for misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or other provision of this title”]; City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 498-504.)
Neiman
has not identified a provision of the Discovery Act that authorizes sanctions here. The Court denies Neiman’s requests for
monetary sanctions.
CONCLUSION
The Court DENIES Plaintiff Ebony Tay’s motion to compel Defendant Neiman Marcus Group, LLC to produce Allyson Sims for the resumption of her deposition.
The Court DENIES Plaintiff Ebony Tay’s motion to compel Defendant Neiman Marcus Group, LLC to produce Aisha McQueen for her deposition.
The Court DENIES Plaintiff Ebony Tay’s motion to compel Defendant Neiman Marcus Group, LLC to produce Joshua Prager, M.D. for his deposition.
The Court GRANTS Plaintiff Ebony Tay’s motion to compel Defendant Neiman Marcus Group, LLC to produce “unknown male employee” for his deposition. The Court orders Defendant Neiman Marcus Group, LLC to produce “unknown male employee” for his deposition within 30 days of the hearing on this motion.
The Court GRANTS IN PART Plaintiff Ebony Tay’s request for sanctions and orders Defendant Neiman Marcus Group, LLC and its counsel to pay Plaintiff Ebony Tay $560.00 within 30 days of the hearing on this motion.
The Court ORDERS Plaintiff Ebony Tay to pay the Court $300.00, consisting of five additional filing fees, within 30 days of the hearing on this motion.
The Court DENIES Defendant Neiman Marcus Group, LLC’s request for sanctions.
The Court finds exceptional circumstances and GRANTS Plaintiff Ebony Tay’s motion to appoint a discovery referee to monitor all future depositions taken in this case and make recommendations (including sanctions recommendations) to the Court. Each party will pay a pro rata share of the referee’s fee.
If Plaintiff Ebony Tay and Defendant Neiman Marcus Group, LLC do not agree on the selection of the referee or referees, each party shall submit to the Court up to three nominees for appointment as referee within 30 days of the hearing on this motion.
Plaintiff and Neiman are ordered to meet and confer and submit to the Court a stipulation concerning the maximum hourly rate the referee may charge and the maximum number of hours for which the referee may charge. (See Code Civ. Proc., § 639, subd. (d)(5).) If Plaintiff and Neiman cannot reach an agreement, the parties may submit briefing on the issues. The parties will file a stipulation or briefing within 30 days of the hearing on this motion.
The
Court sets an Order to Show Cause re: Appointment of a Discovery Referee on May
13, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling within five days.