Judge: Ronald F. Frank, Case: 22STCV06115, Date: 2024-03-06 Tentative Ruling

Case Number: 22STCV06115    Hearing Date: March 6, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 March 6, 2024¿ 

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CASE NUMBER:                  22STCV06115 

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CASE NAME:                        John Doe v. Loyola Marymount University, et al.

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MOVING PARTY:                Plaintiff, John Doe

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RESPONDING PARTY:       Defendant, Loyola Marymount University 

TRIAL DATE:                        August 26, 2024 

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MOTION:¿                              (1) Motion to Compel Defendant, Loyola Marymount University to Produce Employee Douglas Moore for Deposition, and to Produce Documents

                                                (2) Request for Sanctions

¿ Tentative Rulings:                 (1)  GRANTED

                                                (2) Plaintiff’s Request for Sanctions is GRANTED in the reduced amount of $3,000.

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On February 17, 2022, John Doe (“Plaintiff”) filed this action. On March 16, 2022, Plaintiff filed a First Amended Complaint against Defendants, Loyola Marymount University (“LMU”) and Michael Mozilo (“Mozilo”). The FAC alleges the following causes of action: (1) Discrimination under Education Code § 66251; (2) Discrimination in Violation of the Unruh Civil Rights Act ; (3) Education Code Section 220; (4) Negligence against Loyola Marymount University; (5) Breach of Contract; (6) Negligence against Michael Mozilo and Does 50-99; (7) California Civil Code § 1708.85 “Revenge Porn Statute”; (8) Intentional Infliction of Emotional Distress; and (9) Injunctive Relief. Plaintiff brought this lawsuit against LMU and Mozilo alleging that LMU failed to take appropriate action to investigate and remedy alleged abusive conduct by Plaintiff’s fellow student Mozilo. Among other things, Plaintiff alleges that (a) Mozilo unlawfully took and distributed a video recording of Plaintiff to fellow students; (b) that Mozilo and fellow students tormented and bullied Plaintiff based on the illicit video; (c) Plaintiff’s fellow students threatened and harassed Plaintiff; (d) that LMU’s employees, despite being aware of the misconduct, failed to investigate or take action to prevent or remedy the abuse; and (e) Plaintiff was forced to leave school, surrender an athletic scholarship, and sustained substantial damages as a result of the misconduct and LMU’s failures to follow its legal obligations and duties.

Plaintiff notes that he has taken and noticed the depositions of a number of different LMU employees. Further, Plaintiff notes that he noticed the deposition of another LMU employee, Douglas Moore, for November 27, 2023. However, Plaintiff contends that LMU has not produced Mr. Moore for deposition, and has refused to provide any specific dates on which they will agree to produce him. Plaintiff also notes that Ms. Pazzani, counsel for LMU, has been out on medical leave, and that LMU’s counsel has indicated that discovery be stayed until her return. Plaintiff notes that it requested a sort of “middle ground” so that discovery could continue in preparation of the August 2024 trial date. However, Plaintiff suggests that LMU’s counsel’s position was steadfast and did not intend to produce any further individuals for discovery until Ms. Pazzani’s return. But Plaintiff notes that counsel for LMU has also indicated that they intend to file their motion for summary judgment when Ms. Pazanni returns as well, and thus, Plaintiff is seeking evidence from deposition testimony. As such, Plaintiff moves for a ruling, ordering the taking of the deposition of Douglas Moore. 

B. Procedural¿¿ 

On January 4, 2024, Plaintiff filed this Motion to Compel the Deposition LMU Employee, Douglas Moore and Production of Documents. On February 22, 2024 LMU filed an opposition. On February 28, 2024, Plaintiff filed a reply brief.

II. ANALYSIS¿ 

A.    Legal Standard

Code of Civil Procedure section 2025.450, section (a) provides:  

“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.” 

(Code Civ. Proc., § 2025.450, subd. (a).)  

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)  

B.     Discussion  

Meet and Confer

            Here, the Court finds the parties have sufficiently met and conferred in good faith prior to the filing of this motion.

Motion to Compel the Deposition

            Here, Plaintiff has provided that good cause exists to compel the deposition of Douglas Moore and for him to produce documents at his deposition, because he is an employee of LMU and is the Risk Manager for LMU. Thus, Plaintiff argues that Mr. Moore has substantive knowledge of LMU’s policies and practices, including LMU’s compliance with its Title IC obligations, and also likely has information about how LMU responded to Plaintiff’s complaints, reports, and requests for assistance, or, at a minimum, how LMU should have responded if complying with their policies. Plaintiff also suggests Mr. Moore will have information regarding LMU’s investigation into the matters at issue in this lawsuit, including Michael Mozilo’s actions. Further, Plaintiff contends that Mr. Moore Is likely to have information about LMU’s insurance coverage.

            Further, Plaintiff argues that its document requests seek documents in the possession, custody, or control of Mr. Moore relating to Plaintiff’s allegations, including records pertaining to Plaintiff and communications between LMU employees about Plaintiff and the issues that gave rise to Plaintiff’s complaint.

            In opposition, LMU argues that this Court should not compel Mr. Moore’s deposition because he was not a percipient witness and has no independent knowledge of the subject matter of Plaintiff’s civil complaint, that Mr. Moore’s deposition is duplicative of the extensive discovery Plaintiff has already conducted; and that Mr. Moore’s deposition is not required simply because he verified LMU’s discovery responses.

            While Plaintiff concedes that the cases cited to by LMU stand for the argument that simply because an individual signs for discovery verifications, it does not mean privileged material within them is 100% discoverable, or allowed to be asked of at depositions. However, Plaintiff also notes that those cases do not involve the discovery of information sought in this case, and are not analogous to the case at bar. This Court agrees, and notes that certainly, Mr. Moore’s verification on the discovery requests indicate to Plaintiff, and the Court that his testimony can provide potentially discoverable evidence during his deposition. As such, the Court GRANTS the motion as to the taking of the deposition of Mr. Moore on or before March 29, 2024.

As to the issue of waiting to continue discovery until after Ms. Pazzani had returned, the Court seeks a status update as the month of February is now over, and according to representations made by LMU and its counsel, Ms. Pazzani should have returned by the hearing date.

C.    Sanctions

Along with Plaintiff’s motion to compel, Plaintiff is seeking monetary sanctions in the amount of $8,170. This amount is based on Plaintiff’s representations his counsel spent 10.2 hours reviewing the extensive record and correspondence in this case, researching relevant statutes and case law, and drafting the motion papers. The hourly rate identified is $550/hour. Additionally, another attorney, whose hourly rate is $625/hour notes that she estimates spending three hours total on this motion. Here, the Court finds that both the hourly rates and time spend/estimated to be spent on this motion are excessive. Nonetheless, the Court finds that the bringing of the motion was necessary because of LMU’s arguments that it would not continue discovery proceedings until the return of one attorney’s leave.  Absent an order from the Court, the Court determines that it is no a substantial justification to refuse to participate in civil discovery indefinitely because of a leave of absence by a single in-house attorney. 

As such, the Court tentatively awards monetary sanction in the amount of $3,000 to be paid by Defendant LMU and/or their counsel of record by March 29, 2024.

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