Judge Michelle C. Kim, Case Number: 20STCV44336, Date: 2024-04-05 Tentative Ruling

On November 18, 2020, Plaintiff James Green (“Plaintiff” or “Green”) filed this wrongful termination action against Defendants, Aerotek, Inc., Sunpower Solar, Inc., and John Bleem. The First Amended Complaint (FAC) is the operative pleading. On October 5, 2021, Plaintiff filed an amendment to the FAC naming Sunpower Corporation as Doe 1.[1]

On February 22, 2024, Sunpower Corporation (hereafter, “Sunpower”) filed this motion to compel Green’s deposition.[2] Sunpower requests sanctions against Green.

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “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, 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).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿¿¿

Sunpower seeks an order compelling Green to appear for deposition. Green’s deposition was properly noticed on five occasions between May 4, 2023, to December 11, 2023. Green timely objected to each notice due to unavailability. (See Wang Decl.) To date, Green’s deposition has not been taken.

Green does not dispute having been properly served with deposition notices. Nonetheless, he resists the motion to compel on the grounds that (1) Sunpower has engaged in discovery abuse and (2) Sunpower did not meet and confer in good faith prior to filing this motion.

Green’s first argument lacks merit. It rests on the unspoken premise that Green should not be compelled to appear for deposition because of Sunpower’s conduct in other discovery matters. However, Sunpower’s conduct in those other matters is not relevant to the issue presented herein: whether Green must appear for deposition. The court declines to wade into issues that are not properly before the court.

As to Sunpower’s alleged failure to meet and confer in good faith, Green offers email correspondence wherein opposing counsel refused to provide deposition dates for Sunpower’s witness until Plaintiff sat for deposition first. (See Bellah Decl., ¶ 9, Exh. 5.) This is an iteration of Plaintiff’s first argument. Sunpower’s refusal to make its witness available for deposition is not relevant to Plaintiff’s availability for deposition. To the extent Plaintiff takes issue with Sunpower’s alleged refusal to provide deposition dates for its witness, Plaintiff’s recourse is to file its own motion to compel. Accordingly, Sunpower is entitled to an order compelling Green to appear for deposition.

Sunpower requests sanctions against Green. In the context of a motion to compel a party’s deposition, sanctions are mandatory, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿Here, the court finds other circumstances make the imposition of sanctions unjust. Plaintiff has detailed his efforts to engage in discovery in good faith. Accordingly, the court declines to impose sanctions.

The motion is GRANTED. Plaintiff James Green is ordered to appear for deposition within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Sunflower has yet to file a responsive pleading.

[2] The motion also seeks an order continuing the trial date and all related dates. The request is moot. On March 14, 2024, the court granted the parties’ joint stipulation to continue the trial date and all related dates.