Judge: Michael Shultz, Case: 22STCV08190, Date: 2023-02-14 Tentative Ruling
Case Number: 22STCV08190 Hearing Date: February 14, 2023 Dept: A
22STCV08190
Courtney Gregory, Brian Gregory v. KIPP Foundation, KIPP SoCal Public Schools
[TENTATIVE] ORDER
GRANTING
I.
BACKGROUND
The complaint alleges that Plaintiff,
Courtney Gregory, while employed as a teacher for Defendant, KIPP SoCal Public
Schools (“KIPP”), was injured after a student attacked her with a chair. Plaintiff
Courtney alleges claims for fraudulent concealment, negligent hiring and
supervision, intentional and negligent infliction of emotional distress, and
negligent misrepresentation. Plaintiff, Brian Gregory, asserts a claim for loss
of consortium.
II.
ARGUMENTS
Plaintiffs personally
served a business records subpoena on nonparty, Scoot Education Inc. (“Scoot”),
an education staffing company that purportedly provides support services to
KIPP. Plaintiffs contend Scoot’s services to KIPP related to the pupils who
assaulted Plaintiff Courtney as alleged in the complaint. Scoot failed to
comply with the subpoena. Plaintiffs ask for imposition of monetary sanctions.
Nonparty Scoot contends
it has collected all documents and is ready to produce subject to a protective
order. Plaintiffs refuse to provide additional time for production or engage in
good faith. The motion is premature and unnecessary.
In reply, Plaintiffs
contend that a protective order is not necessary as Plaintiffs required all
personally identifiable information to be redacted and requested Scoot’s costs
to do so, however, Scoot refused to comply. The requested production does not
involve student records.
III.
DISCUSSION
The
court can compel a witness’ compliance with a subpoena for the production of
documents. (Code Civ. Proc., § 1987.1). Plaintiffs personally served
a deposition subpoena for records on Scoot on December 5, 2022. Decl.
of Brian Gregory, Ex. A. The date for production was December
23, 2022. Id., p. 2. While Scoot
initially asserted objections to the subpoena, it is now prepared to provide
responsive documents subject to a protective order. Decl.
of Areen Babajanian, ¶ 2.
Scoot does not cite any authority for
unilaterally imposing conditions on its production of documents pursuant to a
subpoena. A witness is entitled to a protective order “upon motion reasonably
made.” (Code
Civ. Proc., § 1987.1). Pursuant to that motion, the Court may make
any order as may be appropriate to protect the person from unreasonable or
oppressive demands, including unreasonable violations of the right of privacy
of the person. (Code Civ. Proc., §1987.1).
Scoot has not met that burden. Plaintiffs were not required to accept the
conditions imposed by the witness for production of documents. The date for production was December 23, 2022. The witness did not
seek a protective order and did not agree to comply until after this motion was
filed on January 9, 2023.
The Court has
discretion to award reasonable attorney’s fees if the Court finds the motion
was opposed without substantial justification. (Code Civ. Proc., § 1987.2 subd. (a)). However, self-represented litigants are not entitled to recover
attorney’s fees because such fees were not incurred. (Musaelian v. Adams (2009) 45 Cal.4th 512, 517 [“A
party who acts on his or her own behalf does not thereby generate an expense
that the party has become obligated to pay. And although such a party may lose
earnings he or she might have obtained but for devoting time to the litigation,
the loss of time from other employment is a loss, not an expense.”]). While a pro-se litigant cannot recover attorney’s fees, that
litigant “can recover the ‘reasonable expenses’ he has ‘incurred,’ including
photocopying, computer-assisted legal research, and other identifiable and
allocable costs.” (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1017). Accordingly, Plaintiffs’ request for attorney’s fees incurred to
prepare the motion and for arguing at the hearing are not compensable, even
though “similar to a paralegal” as they are self-represented litigants. Decl. of Brian Gregory, ¶ 11;
Decl. of Courtney Gregory, ¶ 11.
IV.
CONCLUSION
Based
on the foregoing, Plaintiffs’ Motion to Compel the Witness, Scoot Education
Inc., to comply with the business records subpoena is GRANTED. The witness is
ordered to produce documents without objection within 10 days. Plaintiffs’
request for imposition of sanctions is DENIED.