Judge: Peter A. Hernandez, Case: 20STCV10269, Date: 2023-07-11 Tentative Ruling

Case Number: 20STCV10269    Hearing Date: July 11, 2023    Dept: K

1.         Defendant Pomona Unified School District’s Motion to Compel the Deposition of Kiyarra Zayna-Merie Gil (aka Kiyarra Haywood) is GRANTED. Sanctions are imposed in the reduced amount of $500.00 against Plaintiff’s counsel only and are payable within 30 days from the date of the notice of ruling.

2.         Defendant Pomona Unified School District’s Motion to Compel Plaintiff to Submit to a Mental Examination by Adrienne Meier, Ph.D. is DENIED without prejudice.

Background   

Plaintiff Isaiah Haywood, a minor, by and through his Guardian ad Litem, Rose Ham (“Plaintiff”) alleges as follows:

Plaintiff was a special needs student at Harrison Elementary School (“school”) in Pomona. In 2018 and 2019, Plaintiff was repeatedly subjected to verbal and physical abuse by school employees because of his disabilities.

On March 12, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants Pomona Unified School District (“District”), Shandria Richmond-Roberts (“Richmond-Roberts”), Jennifer Washington (“Washington”) and Does 1-50 for:

1.                  Violation of Civil Code §§ 51, 51.7 and 52.1

2.                  Violation of Government Code § 11135

3.                  Violation Mandatory Statutory Duties

4.                  Negligence

5.                  Assault

6.                  Battery

7.                  Intentional Infliction of Emotional Distress

On September 13, 2022, this case was transferred from Department 31 of the Personal Injury Court to this instant department.

A Trial Setting Conference is set for July 11, 2023.

1.         Motion to Compel Deposition

Legal Standard

“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 . . ., 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).)

A motion to compel deposition “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.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

The motion shall also “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, subd. (b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Discussion

District moves the court for an order compelling the deposition of Kiyarra Zayna-Merie Gil (aka Kiyarra Haywood) (“Kiyarra”) to be completed within 14 days from the date of the granting of that order, or for a date set by the court. District also seeks sanctions against Kiyarra and her attorneys of record in the amount of $1,000.00.

District’s counsel Dominic A. Quiller (“Quiller”) represents, and the exhibits attached reflect, as follows:

Kiyarra is Plaintiff’s sister and was a key witness to some of Plaintiff’s allegations. (Quiller Decl., ¶ 3). Plaintiff’s counsel Cioffi C. Remmer (“Remmer”) promised to produce Kiyarra for deposition but “went radio silent for quite some time” after unspecified “repeated requests” to schedule Kiyarra’s deposition. (Id.) On February 1, 2023, Quiller’s office served a “Notice of Taking Web & Digital Deposition in Lieu of In-Person of Kiyarra Zayna-Maria Gil (aka Kiyarra Haywood), and Requests for Production of Documents at Deposition,” noticing Kiyarra’s deposition for March 30, 2023. (Id., ¶ 4, Exh. A.) On March 23, 2023, Plaintiff served his objection thereto. (Id., ¶ 5, Exh. B.) Plaintiff objected solely on the basis that the deposition had been unilaterally set and that Plaintiff’s counsel and Kiyarra were not available on the date/time noticed. (Id.) Said objection, however, stated that “[c]ounsel will coordinate a mutually convenient date, time, and location of the deposition.” (Id.)

Quiller represents that his office subsequently “communicated with plaintiff’s counsel to come to a mutually agreed upon deposition date but received no response” (Id., ¶ 6); Remmer, in turn, represents that outside of an email that was sent on April 5, 2023, District made no other effort to re-schedule the deposition. (Remmer Decl., ¶¶ 6 and 7.) Remmer’s apparent position that Quiller should have made additional requests to obtain available dates and that his failure to do so constitutes an insufficient meet and confer is unsupported.[1] Remmer further represents that his office is amenable to producing Kiyarra for her deposition and that he provided available dates for same to opposing counsel on June 26, 2023. (Id., ¶ 9). Remmer’s purported proffer of available dates, however, occurred only after the motion was filed.

The motion, then, is granted.

Sanctions

District also seeks sanctions against Kiyarra and her attorneys of record in the amount of $1,000.00 [calculated as follows: 2 hours preparing motion, plus 1 hour preparing reply, plus 1 hour preparing for and attending hearing at $250.00/hour,

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $500.00 (i.e., 2 hours at $250.00/hour. Sanctions are imposed against Plaintiff’s counsel only and are payable within 30 days from the date of the notice of ruling.

2.         Motion to Compel IME

Legal Standard

A party must obtain leave of court if the party desires to obtain discovery by a mental examination. (Code Civ. Proc., § 2032.310, subd. (a).) Section 2032.310, subdivision (b) provides that the motion “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” A meet and confer declaration must also accompany the motion. (Code Civ. Proc., § 2032.310, subd. (b).) For a motion compelling mental examination to be granted, there must be a showing of “good cause.” (Code Civ. Proc., § 2032.320, subd. (a).) 

An order granting a mental examination must specify “the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc., § 2032.320, subd. (d).) 

Discussion

District moves the court for an order compelling Plaintiff to submit to a mental examination to be conducted by neuropsychologist Adrienne Meier, Ph.D., via Zoom within 30 days after the hearing on this motion.

Quiller represents that Remmer agreed to have Plaintiff submit to a mental exam, but that he never heard back from Remmer regarding setting up and confirming the examination. (Quiller Decl., ¶ 9). On December 20, 2022, District served a “Demand for Psychological Examination,” noticing the examination to be conducted by Meier on January 19, 2023. (Id., ¶¶ 10 and 12, Exh. A.) Plaintiff did not object to the demand, but did not appear for the exam. (Id., ¶ 11.) Remmer, in turn, asserts that he was not notified that the exam did not proceed until service of the instant motion and that at no point did Quiller reach out to his office to inquire as to whether or not Plaintiff intended to show for the exam and inquire as to whether or not Plaintiff was having technical issues or experiencing some other difficulty logging on. (Remmer Decl., ¶¶ 5 and 6). Remmer further asserts that Quiller did not meet and confer with him to reset the exam or for any other purpose and that he offered new dates for the exam prior to filing the opposition. (Id., ¶¶ 8 and 9.)

The motion is denied without prejudice. The “Demand for Psychological Examination” served on December 20, 2022 states that “the tests administered may include, but will not be limited to, the following tests: Adaptive Behavior Assessment System-2nd Edition (ABAS-II) Behavior Assessment System for Children-2nd Edition (BASC-2) Beck Inventories Children's Depression Inventory-2nd Edition (CDI-2) Multidimensional Anxiety Scale for Children-2nd Edition (MASC-2) Trauma Symptom Checklist for Children (TSCC) Vineland Adaptive Behavior Scales-2nd Edition (Vineland-II) Symptom Validity Tests.” (Quiller Decl., ¶ 12, Exh. A [emphasis added].) The proposed order is also silent as to the place of the exam. This is insufficient.