Julio Garcia v. The County of Los Angeles

MOTION TO COMPEL DEPOSITION OF DEFENDANT’S PERSON MOST KNOWLEDGEABLE

 

MOVING PARTY: Plaintiff Julio Garcia 

RESPONDING PARTY(S): Defendant County of Los Angeles

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Julio Garcia, a Hispanic American male, worked as a Supervising Deputy Probation Officer for the County. Plaintiff alleges Defendant County discriminated against him based on his ethnicity by transferring him to a new work location and giving him increased work compared to non-Hispanic employees. Plaintiff brings causes of action for (1) FEHA discrimination, (2) FEHA harassment, (3) FEHA retaliation, (4) failure to prevent discrimination, harassment, or retaliation, and (5) violation of Labor Code Section 1102.5.

Plaintiff now moves to compel the deposition attendance of Defendant’s person most knowledgeable. Defendant opposed.

TENTATIVE RULING:

Plaintiff’s Motion to Compel the Deposition of Defendant’s PMK is DENIED. 

Defendant is ordered to give notice, unless waived.

DISCUSSION:

Motion to Compel Deposition

I. Legal Standard

Where, as here, a party deponent has not appeared for his or her deposition, CCP § 2025.450 applies:

(a) 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 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.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion 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.

(2) The motion 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.

(CCP § 2025.450(a),(b) [emphasis added].)

II. Analysis

Plaintiff Julio Garcia moves to compel the deposition of Defendant’s person most knowledgeable. 

On February 1, 2024, Plaintiff served Defendant with a notice of deposition of Defendant’s PMK, to take place on March 7, 2024. Defendant responded on February 18, 2024, with mostly boilerplate objections. The crux of those objections appears to be that lead defense counsel was unavailable for the scheduled deposition date, that the discovery sought was irrelevant, and that the document demand sought discovery that could only be uncovered through a Pitchess motion.

The parties met and conferred over the coming weeks which “resulted in some limitations being placed on the scope of the deposition and requests for production of documents.” (Mtn. 4: 8-9.) However, it appears the parties never agreed on a date for the deposition to go forward—perhaps because Defendant failed to provide any dates of availability. Plaintiff eventually re-noticed the deposition for May 2, 2024—a day after the hearing date of this motion.

The County opposed the motion. The County argues there is nothing to compel because the PMK deposition is set to go forward on May 2. 

In Reply, Plaintiff argues “there is still a dispute as to the topics and documents to be produced, continuing the need for the instant motion.” (Reply 4: 10-11.) That dispute appears to be based on the relevancy of particular categories sought, as well as whether some documents need to be obtained through a Pitchess motion.

Here, because the deposition has been scheduled for after this hearing, the motion is effectively moot. 

Moreover, the court notes that the categories sought in the deposition notice appear relevant and discoverable. (See Hill Decl., Exhs. 1&2.) Evidence is relevant if it “ha[s] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.)  “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (CCP § 2017.010; Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [“discovery is not limited to admissible evidence”].) 

Be that as it may, this Court does have some concerns over the Plaintiff’s utilization of “DOCUMENTS RELATED TO,” as this appears to be improperly overbroad in scope and nature.  Why not just simply ask the PMK specific documents which they are likely to have, e.g., “documents which contain the ethnicity or race of any person transferred. . .”

The only other objection(s) with potential merit are those based on privacy concerns. However, at this time, this court need not determine—and is not in a position to determine—what categories, if any, may be protected and subject to a Pitchess motion. Rather, the deposition may go forward, and to the extent any Pitchess issues arise, Defense counsel may object as necessary. The court will then address any objectionable material that arises at the deposition through an appropriate motion. Only once that deposition occurs will this court be in position to rule on any objections through a Pitchess procedure, if any.

Accordingly, Plaintiff’s Motion to Compel the Deposition of Defendant’s PMK is DENIED.

III. Sanctions

Code of Civil Procedure section 2025.450(g)(1), provides that, “[i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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 sanction acted with substantial justification or that other circumstances make the imposition of sanction unjust.” 

Here, the court declines a sanction, finding Plaintiff acted with substantial justification or that other circumstances make the imposition of sanction unjust.

IT IS SO ORDERED.

Dated:   May 01, 2024 ___________________________________