Judge Peter A. Hernandez, Case Number: 23PSCV00368, Date: 2024-01-17 Tentative Ruling

Defendants Kindercare Learning Centers, LLC’s and Margue Zarate’s Motion to Compel Plaintiff to Appear for a Deposition is GRANTED [see below]. Sanctions are awarded in the reduced amount of $1,050.00 and are payable within 20 days from the date of the notice of ruling.

Plaintiff John Roe, a minor, by and through his guardian ad litem, J.R. (“John Roe”) alleges that he was sexually assaulted and battered on July 26, 2022 by another minor while at daycare.

On February 7, 2023, John Roe filed a complaint, asserting a cause of action against Kindercare Learning Centers LLC, Margue Zarate (together, “Defendants”) and Does 1-100 for:

On March 15, 2024, the court related Case Nos. 23PSCV00368 and 24PSCV00641; Case No. 23PSCV00368 was designated as the lead case.

The Final Status Conference is set for March 28, 2024. Trial is set for April 9, 2024.

Plaintiff John Roe #2, a minor, by and through his guardian ad litem, R.A. (“John Roe #2”) alleges that he was allowed to be involved in a sexual act with another minor, John Roe, while both John Roe #2 and John Roe while at daycare.

On March 1, 2024, Plaintiff filed a complaint, asserting a cause of action against Defendants and Does 1-100 for:

On March 15, 2024, the court related Case Nos. 23PSCV00368 and 24PSCV00641; Case No. 23PSCV00368 was designated as the lead case.

“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).)

A court shall impose monetary sanctions if the motion to compel is granted, “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).)

Defendants move the court for an order, per Code of Civil Procedure § 2025.450, compelling Plaintiff to appear for deposition. Defendants also seek sanctions against Plaintiff and/or his attorneys in the amount of $5,070.00.

Defendants’ counsel Joshua Stewart (“Stewart”) and Charles S. Russell (“Russell”) represent as follows:

On January 26, 2024, Defendants’ counsel’s office electronically served “Defendants’ Notice of Deposition of Plaintiff John Roe,” scheduling Plaintiff’s deposition for February 15, 2024 (Stewart Decl., ¶ 1, Exh. E); within minutes, Stewart received an email from Plaintiff’s counsel Nadine Khedry (“Khedry”), who advised that they would be filing for a protective order regarding same. (Id., ¶ 2, Exh. F). On February 13, 2024, Russell emailed Plaintiff’s counsel and asked if they would be producing Plaintiff for his deposition. (Russell Decl., ¶ 1, Exh. A.) Russell noted that no motion for protective order had been filed and that the deadline to serve an objection had passed. (Id.) Khedry sent an email later that day stating that Plaintiff would not appear for his deposition and that she would “file an objection today for your record.” (Id., ¶ 2, Exh. B.) Khedry and Russell subsequently met and conferred telephonically during which time Khedry advised Russell that she could not agree to produce Plaintiff for deposition under any circumstances. (Id., ¶ 3). Plaintiff’s counsel served an objection on February 13, 2023. (Id., ¶ 4, Exh. C).

A defendant is empowered to obtain discovery regarding any non-privileged matter relevant to the subject matter involved in the pending action, including evidence relating to Plaintiff’s claims. (Code Civ. Proc., § 2017.010.) “[T]he principle that a party to a civil action has a right to depose any adverse party in the action is both fundamental to our legal system and longstanding.” (Slaieh v. Superior Court of Riverside County (2022) 77 Cal.App.5th 266, 275.) “An important aspect of legitimate discovery from a defendant’s point of view is the ascertainment, in advance of trial, of the specific components of plaintiff’s case so that appropriate preparations can be made to meet them. It is impossible to discover this other than from the plaintiff.” (Karz v. Karl (1982) 137 Cal.App.3d 637, 650.)

Defendants duly noticed Plaintiff’s deposition. Plaintiff’s counsel, in turn, refused to produce Plaintiff for same but failed to move for a protective order, raise timely objections or propose parameters.

Defendants are entitled to obtain Plaintiff’s version of the events under oath. Plaintiff and the other boy involved are the only two witnesses who can provide first-hand accounts of what transpired. Further, only Plaintiff can provide firsthand testimony with respect to the emotional distress he claims to have suffered. As Defendants note, Plaintiff’s “statements, under oath, lock [him] into his positions and theories of the case, provide a basis to impeach him and other witnesses, and provide his version of the incident.” (Reply, 3:3-5; see also, Motion, 6:2-4).

Plaintiff argues that “[t]here is no basis to compel” the deposition because he will not be testifying at trial, Defendants have conducted a defense medical examination, his parents have been deposed, and he has already submitted to a forensic interview with authorities. (Opp., 2:5-9). The foregoing arguments are unsupported by any authority. Further, as Defendants point out, Plaintiff’s unsworn statements to law enforcement are hearsay.

Plaintiff also argues that his deposition would not be effective in “gathering discoverable information” because of his age (Id., 2:9-10), but fails to provide any supporting evidence for this statement. Plaintiff’s request for a protective order on the basis of unwarranted annoyance, embarrassment, oppression and undue burden, moreover, ignores the fact that this is not Plaintiff’s motion and that Plaintiff made no attempt to seek a protective order earlier. Plaintiff is not entitled to seek relief in an opposition brief.

The motion is granted. The court is inclined to set a three-hour deposition limit and to allow one of Plaintiff’s parents to be present during the deposition under the circumstances. The court will hear further from counsel in this regard at the time of the hearing. The court is not inclined to set any other parameters as suggested by Plaintiff.

Defendants seek sanctions against Plaintiff and/or his attorneys in the amount of $5,070.00.

[calculated as follows: 3.6 hours preparing motion, plus 0.5 hours drafting proposed order, plus 0.7 hours drafting declaration, plus 1 hour reviewing opposition, plus 2 hours preparing reply at $350.00/hour, plus 1.5 hours editing motion, plus 2 hours meeting & conferring/researching, plus 1 hour reviewing opposition, plus 2 hours preparing reply at $350.00/hour. Note: this equals $5,005.00, not $5,070.00].

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 $1,050.00 (i.e., 3 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 20 days from the date of the notice of ruling.

[1] The motion was filed (and electronically served) on March 13, 2024 and set for hearing on March 28, 2024. The court’s March 13, 2024 minute order provides, in relevant part, as follows: “Court and Counsel confer regarding the deposition of plaintiff. Plaintiff argues that the examination taken place this date should be sufficient and the plaintiff should not need to be disposed. The matter is discussed at length. At the conclusions of discussions, the parties agree to set a Motion to Compel the Deposition of the Plaintiff on 3/28/2024 at 10:00 AM . . . Hearing on Motion to Compel Plaintiff's Deposition is scheduled for 03/28/2024 at 10:00 AM in Department K at Pomona Courthouse South. Defendant's Motion to Compel is to be filed this date. . . ”