Judge: Michelle Williams Court, Case: BC714514, Date: 2022-08-18 Tentative Ruling

Case Number: BC714514    Hearing Date: August 18, 2022    Dept: 74

BC714514      TABITHA LAWSON VS LOS ANGELES UNIFIED SCHOOL DISTRICT

Plaintiff’s Motion to Compel Deposition of Defendant’s Witnesses; Request for Sanctions in the Amount of $3,600.

TENTATIVE RULING:  Plaintiff’s Motion to Compel Deposition of Defendant’s Witnesses; Request for Sanctions in the Amount of $3,600 is GRANTED, in part.  The motion MOOT as to Matthew Frowein and DENIED as to Lanesha Smith and Laura Cisneros.  The motion is GRANTED as to Christina Sauverdez, Maria Ayestas, Martha Mendez Sosa, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan.  The Court orders Defendant to produce Christina Sauverdez, Maria Ayestas, Martha Mendez Sosa, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan to sit for their depositions no later than October 31, 2022.  The request for sanctions is DENIED.

Background

On July 18, 2018, Plaintiff Tabitha Lawson filed a complaint against Defendant Los Angeles Unified School District. The complaint alleged eight causes of action: (1) Discrimination, (2) Failure to Reasonably Accommodate, (3) Failure to Engage in Interactive Process, (4) Associational Discrimination, (5) Retaliation, (6) Harassment/Hostile Work Environment, (7) Failure to Prevent Harassment, Discrimination and Retaliation, and (8) Violations of the California Family Rights Act. Plaintiff alleges that during her time with the LAUSD she was discriminated against because of her disability and experienced a hostile work environment. While on leave, Plaintiff alleges that she was separated from District service.

Motion

On December 28, 2021, Plaintiff filed the instant motion to compel depositions of Christina Sauverdez, Lanesha Smith, Laura Cisneros, Maria Ayestas, Martha Mendez Sosa, Matthew Frowein, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan, witnesses for Defendant.

Opposition

In opposition, Defendant contends its new counsel has been attempting to schedule the depositions and sanctions are not warranted.

Reply

In reply, Plaintiff contends the motion is not moot and sanctions are warranted.

Motion to Compel Deposition

Standard

While Plaintiff’s notice of motion indicates the “motion is filed pursuant to CCP §2025.480,” (Notice at 2:13-15), Plaintiff’s requested relief is based upon a failure to attend and is governed by Code of Civil Procedure section 2025.450.

Pursuant to Code of Civil Procedure section 2025.450(a), “[i]f, 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.”

The motion must be accompanied by a meet and confer declaration and “shall 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.” (Code Civ. Proc. § 2025.450(b).)

Discovery at Issue and Meet and Confer Efforts

On November 23, 2021, Plaintiff served deposition notices upon Defendant for the depositions of ten of its employees: Christina Sauverdez, Lanesha Smith, Laura Cisneros, Maria Ayestas, Martha Mendez Sosa, Matthew Frowein, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan. (White Decl. Ex. A-J.) On December 16, 2021, Defendant objected to each notice stating the depositions were unilaterally set and “it lacks capacity and function to produce the witness (and/or defend the deposition) from December 20, 2021 through January 7, 2022 since Defendant Los Angeles Unified School District schools and employees (including inhouse defense counsel) will be on winter recess and mandatory shutdown during that period of time.” (Id. Ex. L-U.)  As to Laura Cisneros, Defendant also objected on the ground that she was no longer its employee. (Id. Ex. M, U.)

The Court finds Plaintiff failed to adequately meet and confer. Plaintiff noticed the depositions and was informed on November 29, 2021 that Defendant’s “school site employees are not available December 20 through January 11. And [its] headquarters employees, including [Defendant’s former counsel], are not available December 24 though January 3.” (Id. Ex. K.) Plaintiff’s counsel responded “[w]e will go forward with the depositions as noticed and compel them if witnesses do not appear.” (Ibid.) Plaintiff also stated “[w]e have given you numerous opportunities to provide dates and you have delayed producing the witnesses. Our trial date is vastly [sic] approaching.” (Ibid.) Defendant’s counsel noted Plaintiff “had years to take these depos” and “would be better suited to seek a continuance.” (Ibid.)

“[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, [the motion must be accompanied] by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.”  (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.) Plaintiff made no effort to resolve the scheduling issue after serving the deposition notices. While the Court shall not deny the motion on this basis, Plaintiff’s counsel is expected to adequately meet and confer prior to filing any discovery motion.

In opposition, Defendant notes on February 2, 2022 Plaintiff re-noticed the depositions for Patricia Ferguson, Steven Byan, and Sheilah Hernandez for April 8, 2022. (Hayden Decl. Ex. 1.) Defendant’s current counsel substituted into the case on March 24, 2022. On March 25, 2022, Defendant’s current counsel inquired as to whether Plaintiff had dates she was considering for the depositions of Martha Mendez Sosa, Maria Ayestes, Shelia Hernandez, Steven Byan, Mimi Tren, Christina Sauverdez, R. Villagrade, Patricia Ferguson, and Laura Cisneros. (Id. Ex. 2.) On April 1, 2022, Defendant objected to the three February deposition notices seeking to discuss mutually agreeable dates. (Id. Ex. 3.)

On June 21, 2022, Plaintiff sought deposition dates for September and October 2022. (Id. Ex. 5.) On July 6, 2022, Defendant identified August and September dates for five of the witnesses and noted Lanesha Smith and Laura Cisneros were no longer employed by Defendant. (Ibid.) On July 20, 2022, Plaintiff’s counsel noted she would be in trial in August and September and sought dates in October. (Id. Ex. 6.) Defendant requested Plaintiff “offer some dates that work for you that [Defendant] can circulate to the employees.” (Ibid.)

Only Defendant’s Current Employees May be Compelled to Testify via Plaintiff’s Motion

In reply, Plaintiff notes “LAUSD has only produced three witnesses for deposition: Valerie Bell, Matthew Frohwein and Maria Underwood.” (Reply at 2:20-21.) Of these three witnesses, only the deposition of Matthew Frowein was sought via the instant motion. Accordingly, the motion is MOOT as to Matthew Frowein.

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280(a).) Defendant notes Lanesha Smith and Laura Cisneros are no longer employed by Defendant. (Hayden Decl. ¶ 7, Ex. 5.) Accordingly, the notice of deposition is insufficient to compel their appearance and the Court cannot compel them to appear pursuant to the instant motion. (Code Civ. Proc., § 2025.280(a).) The motion is DENIED as to Lanesha Smith and Laura Cisneros.

Based upon the evidence before the Court, it appears the parties have been unable to mutually schedule the depositions of Christina Sauverdez, Maria Ayestas, Martha Mendez Sosa, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan. Plaintiff served deposition notices seeking the testimony of these individuals, who did not attend, and therefore the requirements of Code of Civil Procedure section 2025.450 have been met. The motion is GRANTED as to the depositions of Christina Sauverdez, Maria Ayestas, Martha Mendez Sosa, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan.

The Court believes a firm deadline will ensure the parties complete the depositions in a timely fashion. Plaintiff’s correspondence indicates there are scheduling conflicts in August and September for the depositions. (Hayden Decl. Ex. 6.) The Court orders Defendant to produce Christina Sauverdez, Maria Ayestas, Martha Mendez Sosa, Patricia Ferguson, R. Villagrade, Sheilah Hernandez, and Steven Byan to sit for their depositions no later than October 31, 2022.

Sanctions

Pursuant to Code of Civil Procedure section 2025.450(g)(1), “[i]f a motion under 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.”

The Court finds both parties acted with substantial justification and the imposition of sanctions would be unjust due to the partial success of the motion and Plaintiff’s failure to adequately meet and confer before filing the motion.