Judge: Michael E. Whitaker, Case: 23SMCV02791, Date: 2024-12-18 Tentative Ruling

Case Number: 23SMCV02791    Hearing Date: December 18, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from allegations that Defendants City National Bank N.A. (“CNB”); Bob Martinez (“Martinez”) and Jennifer Rueda (“Rueda”) (together, “Defendants”) discriminated against Plaintiff Kimberly Tucker (“Plaintiff”) when Plaintiff attempted to open a bank account. 

            Moving Defendants CNB and Rueda (“Moving Defendants”) move for an order compelling Plaintiff’s deposition and request monetary sanctions.  Plaintiff opposes the motion to compel and Moving Defendants reply.

            Plaintiff also moves for an order continuing the hearing on the motion to compel her deposition.  Moving Defendants oppose Plaintiff’s motion to continue and Plaintiff replies.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendants request judicial notice of the following:

Exhibit 1: Abundio v. State of California, Sacramento Superior Court Case Number 34-2018-00246785 (April 27, 2021 Order for Terminating Sanctions re: Defense Counsel sending substantive text messages to deponent during deponent’s Zoom deposition);

Exhibit 2: Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341 (Aug. 31, 2021, Mass Dist. Ct.);

Exhibit 3: Lynn v. George, Sacramento Superior Court Case Number 34- 2015-00186641 (August 17, 2021 Ruling)

Exhibit 4: Vazquez Diaz v. Commonwealth (2021) 487 Mass. 336 (Kafker, J. concurring).

Judicial notice may be taken of records of any court in this state or of any state in the United states (Evid. Code, § 452, subd. (d).)   Because the requested exhibits are all court records from California and Massachusetts, the Court may take judicial notice of them.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

The requested exhibits are all opinions, orders, or rulings.  Accordingly, the Court takes judicial notice of the existence of the documents, as well as the truth of any results reached.

ANALYSIS

1.     Motion to Compel

“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.” (Code Civ. Proc., § 2025.450, subd. (a).)

Here, on April 1, 2024, CNB noticed Plaintiff’s in-person deposition for June 4, 2024.  (Jewett Decl. ¶ 4.)  On April 15, Plaintiff’s counsel responded that he would not allow Plaintiff’s deposition to go forward on June 4 on the grounds that the depositions of CNB employee Chad Gordon (“Gordon”) and Defendant Rueda, which were previously noticed on February 14, 2024, must go forward first.  (Jewett Decl. ¶ 5 and Ex. 2.)

CNB’s counsel made multiple attempts to reschedule Plaintiff’s in-person deposition to a mutually convenient date, but Plaintiff’s counsel refused to provide any available dates.  (Jewett Decl. ¶ 6 and Ex. 3.) 

CNB scheduled Rueda’s and Gordon’s depositions for August 27, 2024 and September 6, 2024, respectively.  (Jewett Decl. ¶ 7.)  On August 7, 2024, Plaintiff’s counsel offered to schedule Plaintiff for deposition on September 27.  (Jewett Decl. ¶ 8.)

Due to technical issues logging onto the deposition platform, the Rueda deposition did not go forward as scheduled.  (See Gebriel Decl.; Jewett Decl. ¶ 9.)

The Gordon deposition went forward as planned on September 6, 2024.  (Jewett Decl. ¶ 11.)

On September 20, 2024, CNB requested confirmation that Plaintiff would appear at the September 27 deposition.  (Jewett Decl. ¶ 12 and Ex. 6.)  In response, Plaintiff’s counsel responded that it would only go forward if Rueda sat for deposition prior to September 27.  (Ibid.)

The parties attended in Informal Discovery Conference (“IDC”) on September 24, 2024.  The Court advised that a ‘right to priority’ in scheduling depositions is a legal fallacy.

On September 27, 2024, Plaintiff’s counsel objected to the taking of Plaintiff’s deposition in person, on the grounds that attending depositions in person is too strenuous on Plaintiff’s counsel’s heart, following three heart surgeries, and proposed taking the remote depositions of Rueda on the 23^rd or 28^th and then Plaintiff’s on the 28^th or 31^st.  (Jewett Decl. ¶ 16 and Ex. 9.)

CNB responded that Plaintiff’s counsel was welcome to attend remotely, but CNB intended to take Plaintiff’s deposition in person.  (Jewett Decl. ¶ 17 and Ex. 10.)

On October 7, 2024, Plaintiff’s counsel informed CNB’s counsel, “nothing short of a court order will prompt me to allow Plaintiff to be deposed prior to the termination of [Rueda’s] deposition” and “nothing short of a court order will cause me to agree to allow Plaintiff to be deposed in person rather than by Zoom.” 

Here, CNB noticed Plaintiff’s in-person deposition for June 4, 2024, and Plaintiff refused to appear, with no valid objection, on the grounds that Plaintiff wanted to take Rueda’s deposition first.  Plaintiff’s deposition was rescheduled for September 27, and Plaintiff refused to appear unless the Rueda deposition occurred first.  Further, Plaintiff did not object to the deposition going forward in person as noticed.

Thus, Moving Defendants are generally entitled to an order compelling Plaintiff to appear for her deposition in person as noticed.

2.     Motion to Continue

Regarding Plaintiff’s motion, Plaintiff moves to continue the hearing on the motion to compel Plaintiff’s deposition “to a date when it can be heard simultaneously with Plaintiff’s motion to compel” Rueda’s deposition. 

Plaintiff has similarly provided no valid basis to continue the hearing on this motion.  As the Court explained at the IDC, there is no priority rule for depositions.  Moreover, Plaintiff has not even filed a motion to compel Rueda’s deposition yet.  The Court will not continue the hearing on the motion to compel Plaintiff’s deposition indefinitely until such date as Plaintiff decides to file and schedule a motion to compel Rueda’s deposition – which may or may not ever occur.

As such, Moving Defendants’ motion to compel is granted and Plaintiff’s motion to continue is denied.

3.     Monetary Sanctions

Plaintiff’s counsel neither formally objected to the taking of Plaintiff’s deposition in person, nor provided any valid basis for the positions that (1) Plaintiff’s deposition must go forward before Rueda’s or (2) Plaintiff’s deposition must go forward remotely.  Moving Defendants’ counsel has already assured Plaintiff’s counsel that he may attend Plaintiff’s deposition remotely to accommodate his health concerns. 

Thus, the Court finds Plaintiff’s refusal to sit for deposition to be a misuse of the discovery process, warranting sanctions.  (See Code Civ. Proc., §§ 2023.010, subds. (d)-(e), 2025.450, subd. (g)(1).) 

Accordingly, the Court will impose monetary sanctions against Plaintiff and Plaintiff’s counsel, Girma Gebriel, jointly and severally, in the amount of $1,945, representing three hours of attorney time to draft the motion and reply briefs, at the hourly rate of $465, and one hour of attorney time to attend the hearing at the hourly rate of $550. 

CONCLUSION AND ORDER

For the foregoing reasons, the Court denies Plaintiff’s motion to continue the hearing on this motion. 

Further, the Court grants Moving Defendants’ motion to compel Plaintiff to appear for deposition per Code of Civil Procedure section 2025.450, and orders Plaintiff to appear for deposition in person within 30 days of notice of the Court’s order, unless CNB stipulates otherwise. 

Further, the Court orders Plaintiff and Plaintiff’s Counsel Gebriel, jointly and severally, to pay monetary sanctions in the amount of $1,945 to Moving Defendants, by and through counsel for Moving Defendants, within 30 days of notice of the Court’s order.

Counsel for Moving Defendants shall provide notice of the Court’s order and file the notice with a proof of service forthwith. 

DATED:  December 18, 2024                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court