Judge: Mel Red Recana, Case: 22STCV29463, Date: 2024-10-15 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 22STCV29463    Hearing Date: October 15, 2024    Dept: 45

Superior Court of California 

County of Los Angeles 

Hearing date:              October 15, 2024

Moving Party:             Plaintiff Ricky Thorstensen

Responding Party:      Defendant J.J. Murphy

Motion to Compel Deposition and Production of Documents       

The Court considered the moving papers and opposition. No reply was filed.

The court orders Defendant to attend deposition on November 11, 2024, and to produce documents responsive to Plaintiff’s requests.

Background 

On June 28, 2023, Plaintiff Ricky Thorstensen (“Plaintiff”) filed a Second Amended Complaint (“SAC”) against Defendants J.J. Murphy (“Defendant”); City of Palmdale; Keith Kang; and Does 1 to 100, inclusive. The SAC alleged six causes of action: (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) failure to prevent discrimination, harassment, and retaliation; (5) violation of Labor Code section 1102.5; and (6) intentional infliction of emotional distress. Plaintiff alleges he was discriminated against, harassed, and wrongfully terminated due to his age. Defendant filed his Answer and a Cross-Complaint against Defendant City of Palmdale on May 1, 2024.

            On September 13, 2024, Plaintiff filed the instant Motion to Compel Deposition of Defendant.

Legal Standard 

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Code of Civil Procedure,¿section¿2025.450, subdivision (a), provides:¿“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”¿

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc., § 2025.410, subd. (b).)  

Code of Civil Procedure,¿section¿2025.450, subdivision (b), provides:¿“A motion under subdivision (a) . . . 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.”

Discussion 

Motion to Compel Deposition

On October 17, 2022, Plaintiff served on Defendant a Notice of Taking Deposition and Request for Production of Documents by personal service. (Declaration of Sophie Mangan, ¶ 2, Exhibit 1.) The deposition was scheduled for December 5, 2022, to be conducted by video conference and telephone. (Declaration of Sophie Mangan, ¶ 2, Exhibit 1.) Defendant contends that he never received personal service of this notice, and that he did not reside at the proof of service address. (Opposition to Motion to Compel, p. 2, fn. 1.)

Plaintiff did not receive a response and served deposition subpoenas on Defendant’s past employer on January 24, 2023 and March 15, 2023. (Declaration of Sophie Mangan, ¶ 3, Exhibits 2, 3.) These depositions were scheduled for February 22, 2023, and April 24, 2023, respectively. (Declaration of Sophie Mangan, ¶ 3, Exhibits 2, 3.) Defendant argues that these notices were sent to Defendant City of Palmdale’s counsel, who never represented Defendant. (Opposition to Motion to Compel, p. 2, fn. 1.)

Plaintiff served another deposition notice on Defendant’s counsel on April 17, 2024, for deposition scheduled for June 5, 2024. (Declaration of Sophie Mangan, ¶ 5, Exhibit 4.) Defendant does not contest that it was served on his counsel, but he argues that at the time of service, he had not yet appeared in the action, rendering mail service on counsel ineffective. (Opposition to Motion to Compel, p. 2, fn. 1.)

Defendant argues that his first appearance in the case was on May 1, 2024, when he filed his Answer, even though he was never served with Plaintiff’s Complaint. (Opposition to Motion to Compel, p. 2.) Plaintiff’s counsel testifies through Declaration that since May 1, 2024, she has requested Defendant’s availability for deposition from his counsel eight times. (Declaration of Sophie Mangan, ¶ 6.) Defendant concedes that Plaintiff’s counsel requested dates in early May 2024. (Opposition to Motion to Compel, p. 2.)

Defendant’s counsel testifies through Declaration that Defendant resides in Florida, so arranging his deposition is more difficult. (Declaration of Kevin I. Shenkman, ¶ 3.) Defendant’s counsel informed all other counsel that Defendant would be available for deposition on the week of August 12, 2024. (Declaration of Kevin I. Shenkman, ¶ 5, Exhibit B.) Defendant contends Plaintiff’s counsel never served a deposition notice for that week or any other time. (Declaration of Kevin I. Shenkman, ¶ 6.)

On September 5, 2024, Plaintiff’s counsel requested available dates for deposition again. (Declaration of Kevin I. Shenkman, ¶ 7, Exhibit D; Declaration of Sophie Mangan, ¶ 14, Exhibit 12.)

On September 13, 2024, Plaintiff filed the instant motion. On September 25, 2024, Defendant provided two more available dates, one of which Plaintiff’s counsel agreed with, but Plaintiff refused to withdraw the instant motion. (Declaration of Kevin I. Shenkman, ¶ 9, Exhibit F.)

The court finds that parties have reached a mutually agreeable date for deposition, rendering the present motion unnecessary.

Motion to Compel Production of Documents

Code Civil Procedure section 2025.450, subdivision (b)(1) requires the moving party to “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.” As demonstrated by previous deposition notices, Plaintiff intends to demand production of various documents. The court finds good cause to compel production of these documents as they relate to Defendant’s interactions with Plaintiff, complaints Plaintiff made, and the subject of Plaintiffs complaints. (Motion to Compel, p. 3.) The Court also notes that the discovery cutoff date will have already passed at the time of this hearing, and obtaining discovery later may prejudice Plaintiff’s ability to present his case. As such, the court grants Plaintiff’s Motion to Compel Production of Documents.

Sanctions

The court finds that Plaintiff has presented sufficient evidence of his efforts to meet and confer and declines to grant sanctions against Plaintiff. “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.020.) Plaintiff’s counsel has testified through Declaration that she has attempted to meet and confer to resolve this discovery dispute informally. (Declaration of Sophie Mangan, ¶ 6.) As such, the court declines to grant sanctions.

Conclusion

Based on the evidence presented, the court orders Defendant’s attendance at the deposition scheduled for November 11, 2024. The court also grants Plaintiff’s Motion to Compel Production of Documents.

It is so ordered. 

Dated:  

_______________________ 

MEL RED RECANA 

Judge of the Superior Court