Judge Lynne M. Hobbs, Case Number: 20STCV42438, Date: 2024-03-20 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV42438, Date: 2024-03-20 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 20STCV42438 Hearing Date: March 20, 2024 Dept: 30

ADRIANNE PEARSON vs CHIPOTLE MEXICAN GRILL, INC., et al.

TENTATIVE

Defendant’s motion to compel deposition is GRANTED in part and MOOT in part.

Plaintiff’s motion for protective order is DENIED.

Sanctions are denied.

Defendant is ordered to give notice.

Legal Standard

Compel Deposition

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (CCP § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (CCP § 2025.280(a).)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (CCP § 2025.410(a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (CCP § 2025.410(c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (CCP § 2025.450(a).)

A motion made pursuant to Code of Civil Procedure section 2024.450 must (1) set forth specific facts showing good cause justifying the production for inspection of any document and (2) be accompanied by a meet and confer letter, “or, when the deponent fails to attend the deposition and produce the documents described in the deposition notice,… by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., § 2025.450, subd. (g)(2).)

Protective Order

Pursuant to CCP § 2025.420(b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

…

(5) That the deposition be taken only on certain specified terms and conditions.”

Discussion

Defendant moves to compel Plaintiff’s deposition and production of documents on the basis that Plaintiff failed to object or appear for her properly noticed deposition.

Plaintiff moves for a protective order that her deposition proceed remotely because she is 79 years old at greater risk of complications if she contracts COVID, the flu, or RSV during the proceedings. Further, she asserts that CCP § 2025.310 provides that a deponent may elect to appear remotely for deposition.

The motions are analyzed together as Plaintiff only opposes Defendant’s motion to compel her deposition on the basis that the deposition should be conducted remotely, which is also the basis of her motion for protective order.

As Plaintiff was properly served a deposition notice and did not appear or object to the notice, and agrees to the taking of her deposition in opposition, the motion to compel deposition is GRANTED. Plaintiff represents that she has served documents in response to the deposition notice, and Defendant does not appear to dispute this in reply. Accordingly, the request for documents is MOOT.

Plaintiff’s motion for a protective order that her deposition proceed remotely is DENIED. Plaintiff asserts she is 79 years old and at greater risk of complications if she contracts COVID, the flu, or RSV from the proceeding. Standing alone, this is not sufficient to order that the deposition take place remotely. Plaintiff has not provided any evidence such as from a doctor stating that this is recommended. Plaintiff herself submits no declaration in support of the motion either. The articles regarding COVID are not sufficient. Further, Plaintiff’s reliance on CCP §2025.310 is misplaced. CCP § 2025.310(a) states that at the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. The deposing party need not be physically present with the deposition officer when being sworn in. (Ibid.) The rules are different for parties and counsel of record. Any party or attorney of record may, but is not required to, be present at the location of the deponent. (CCP § 2025.310(b).)2 If electing to be physically present, all such deposition participants must

comply with local health and safety ordinances, rules and orders. (Ibid.) The procedures for implementing CCP § 2025.310 are established by the California Rules of Court, namely Rule 3.1010. (CCP § 2025.310(c).)

Thus, CCP § 2025.310(a) allows for the deponent or deposing party to have the deposition officer appear remotely, and does not state that the deponent or deposing party may elect to have a remote deposition. Instead CCP § 2025.310(b), which was amended by SB 1146 in light of the COVID-19 pandemic, provides that “any party or attorney of record may” be physically present at the location of the deponent.

While the Court understands Plaintiff’s concern with COVID-19, as amended, CCP § 2025.310 takes into account the COVID-19 pandemic, and was amended to ensure the effective operation of the courts. Accordingly, the parties must comply with all statutes governing depositions, including CCP § 2025.310(b)’s requirement that all physically present participants comply with local health and safety ordinances, rules, and orders.

As to the parties’ requests for sanctions, the Court finds that sanctions are not warranted for either party. Plaintiff’s misunderstanding of CCP § 2025.310 is reasonable, and Plaintiff was not acting in bad faith, as she was willing to appear remotely for her deposition. There is no argument that Plaintiff’s health concerns are a sham, and in many cases, parties voluntarily engage in the practice of taking depositions remotely in light of the pandemic.

Accordingly, Defendant’s motion to compel deposition is GRANTED in part and MOOT in part. Plaintiff’s motion for protective order is DENIED. Sanctions are denied.