Judge Peter A. Hernandez, Case 21PSCV00703 2022-08-16 Tentative Ruling

Judge: Peter A. Hernandez, Case: 21PSCV00703, Date: 2022-08-16 Tentative Ruling

Case Number: 21PSCV00703 Hearing Date: August 16, 2022 Dept: O

Plaintiff Christopher Cano’s Motion to Compel Depositions of Alma Martinez and John Nguyen is GRANTED. Martinez and Nguyen are ordered to attend their respective depositions no later than September 30, 2022. Sanctions are awarded in the reduced amount of $1,695.00 and are payable within 30 days of the date of the hearing.

Background

Plaintiff Christopher Cano (“Plaintiff”) alleges as follows:

Plaintiff is a police officer with the El Monte Police Department (“Department”). Plaintiff was retaliated against with a pretextual demotion from the position of SWAT Commander after he reported to the mayor, Jessica Ancona, that the Chief’s backdating of a memo promoting three individuals within the Department was a violation of local, state or federal law.

On August 30, 2021, Plaintiff filed a complaint, asserting a cause of action against City of El Monte and Does 1-25 for:

1. Retaliation for Whistleblowing Activities in Violation of Labor Code Section 1102.5

The Final Status Conference is set for July 18, 2023. Trial is set for August 1, 2023.

Legal Standard

Code of Civil Procedure § 2025.450, subdivision (a) provides that “[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 . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or things described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony, and the production of any document, electronically stored information, or things described in the deposition notice.”

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).)

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

Plaintiff moves the court for an order compelling Defendant to produce City Manager Alma Martinez (“Martinez”) and Human Resources Director John Nguyen (“Nguyen”) to attend and testify at their respectively noticed depositions. Plaintiff also seeks sanctions against Defendants and its attorney in the amount of $5,045.00.

Plaintiff’s counsel Tristan G. Pelayes (“Pelayes”) represents, and the accompanying exhibits reflect, as follows:

On January 20, 2022 Defendant's counsel suggested May 11, 2022, as an agreeable date for Martinez’s and Nguyen’s respective depositions. (Pelayes Decl., ¶ 6, Exh. A.) On March 8, 2022, Plaintiff served deposition notices for Martinez and Nguyen on Defendant, setting said depositions for May 11, 20220. (Id., ¶ 6, Exhs. B and C.) On April 29, 2022, Defendant’s counsel’s office advised that the depositions would have to be rescheduled to a later date because Defendant’s counsel Nancy Doumanian (“Doumanian”) was scheduled to start trial in another matter on May 9, 2022. (Id., ¶ 7, Exh. D.) Defendant’s counsel’s office subsequently identified the name of the case proceeding to trial on that date. (Id., ¶ 7, Exh. E)

On May 5, 2022, Pelayes advised Defendant’s counsel’s office that the May 11, 2022 scheduled depositions would remain on calendar and would only be reset if Doumanian, in fact, started trial in the other matter on May 9. (Id., ¶ 8, Exh. F.) On May 9, 2022, Doumanian emailed that trial in the other matter was not moving forward on May 9 but that she could not proceed with the May 11^th depositions because she needed to accompany her son to chemotherapy that day. (Id., ¶ 9, Exh. G.) Defendant never served an objection to the deposition notices. (Id., ¶ 9.) Pelayes declined to take the May 11^th depositions off calendar and instead had the court reporter take certificates of nonappearance on May 11, 2022 after Doumanian, Martinez and Nguyen failed to appear. (Id., ¶ 10, Exhs. G & H.)

The motion is granted. The court is certainly sympathetic to Doumanian’s personal situation; however, the record reflects that the subject depositions were set for a date selected by Doumanian in the first instance. Less than two weeks before the scheduled deposition date, without serving an objection, Defendant’s counsel’s office advised that Doumanian would be engaged in trial at that time. Plaintiff’s counsel agreed to reschedule the depositions in the event the trial moved forward, but indicated that the depositions would remain on calendar if the trial did not commence as indicated. Only then does it appear that Doumanian raised the issue of her son’s medical appointment. No objection was ever served.

The court acknowledges that Ms. Doumanian is currently engaged in a jury trial in case styled Jane Doe v. Pasadena Unified School District, Case No. BC662842, which commenced on August 1, 2022. The court notes that on July 29, 2022 the parties therein stipulated to a 15-day trial estimate. Accordingly, Martinez and Nguyen are ordered to attend their respective depositions no later than September 30, 2022.

Sanctions

Plaintiff seeks sanctions against Defendant and Doumanian in the amount of $5,045.00 [calculated as follows: $995.00 in court reporter costs, plus 6 hours preparing motion, plus 3 hours preparing reply and attending hearing at $450.00/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 $1,695.00 (i.e., 2 hours at $350.00/hour, plus $995.00 court reporter costs). Sanctions are payable within 30 days of the date of the hearing.