Judge: Stephen Morgan, Case: 22AVCV00421, Date: 2023-09-26 Tentative Ruling
Case Number: 22AVCV00421 Hearing Date: September 26, 2023 Dept: A14
Background
This is an
employment complaint action. Plaintiff John Matthew Derse (“Plaintiff”) alleges
that his employment with Defendant Learning for Life (“L4L”) began as a summer
school teacher and, in 2016, he accepted a position with Defendant Antelope
Valley Learning Academy, Inc. (“AVLA”) under supervisor Defendant Marcello
Enrique Palacios (“Palacios”). Plaintiff presents that (1) he was diagnosed
with neurogenic bladder prior to working at AVLA and (2) despite the diagnosis,
Palacios continuously added new students and transferred the more challenging
students to Plaintiff’s already full roster, compared to his younger colleagues
who did not suffer from medical conditions. Additionally, Plaintiff presents
that there was an allegation against him from a student in which she stated
that Plaintiff kissed her. Resulting from this allegation, (1) Palacios sent
Plaintiff home on paid leave pending his investigation; (2) Defendants Chad
Gray (“Gray”) and Jeri Vincent (“Vincent”) met with Plaintiff and his family to
discuss each other’s intent and stated that the parties agreed to disregard the
“at will” employment in the L4L handbook; (3) a Confirmation of Conversation
form regarding violation of the personal space of a student was signed
allegedly to avoid immediate discharge; and (4) Palacios told Plaintiff he was
to ignore the student from then on. Plaintiff alleges that, despite the
aforementioned allegations, his student talked to him about a family member
dying from COVID and he sent a link about a cure for COVID to parents and staff
only. Plaintiff contends that Palacios told other defendants that the link was
sent to students and violated company policy. Plaintiff was discharged.
Plaintiff presents that this discharge was disparate treatment as his
colleagues had emailed links to students, including a links to two movies: (1)
"Airplane!" – a movie with nudity, suicide scenes and a hanging, and
(2) "The Jerk" – a movie with racial slurs.
On June 10,
2022, Plaintiff filed his Complaint alleging six (6) causes of action for: (1)
Discrimination, Harassment, and Retaliation Based on Age, Medical Condition, or
Improper “Investigation” in Violation of FEHA; (2) Breach of Express and
Implied Contract Not to Discharge Without Good Cause; (3) Breach of Implied
Covenant of Good Faith and Fair Dealing; (4) Fraud and Deceit; (5) Failure to
Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA; and
(6) Violation of Labor Code § 1198.5.
On September
19, 2022, Plaintiff filed an Amended Complaint.
On September
26, 2022, Plaintiff filed a document titled “Offer to Compromise and Acceptance
Under Code of Civil Procedure Section 998.”
On September
29, 2022, Plaintiff filed an Opposition to Defendants AVLA, Palacios, Gray, and
Vincent’s Motion to Strike.
On October 10, 2022, Defendants
AVLA, Palacios, Gray, and Vincent filed their Answer as well as a Motion to
Strike.
On October 12, 2023, Plaintiff
filed a Reply to Defendant’s Answer.
On October 13,
2022, Plaintiff’s counsel Joseph Kolodziej (“Kolodziej”)’s Motion to Be
Relieved and a Case Management Conference were held. The Court continued the Motion
to Be Relieved to November 01, 2023 so as not to prejudice Plaintiff at the
hearing on the Motion to Strike. The Court inquired as to filing using Kolodziej’s
letterhead. Sanon D. Tygstand (“Tygstand”) for Kolodziej represented that she
did not file the Offer to Compromise and Acceptance Under Code of Civil
Procedure Section 998. The Court struck the Offer to Compromise and Acceptance
Under Code of Civil Procedure Section 998. Kelly Derse (“Ms. Derse”), who was
present at counsel’s table, attempted to make arguments for Plaintiff. The
Court advised Ms. Derse that she was not a party to this action.
After this
order, Plaintiff filed various documents: three requests for judicial notice
dated October 17, 2022 and a document titled Request to Withdraw the Opposition
to Defendants Motion to Strike Punitive Damage Filed by his Counsel September
29, 2022 in Support of the Complaint Without Punitive Damages dated October 21,
2022.
On November 01,
2022, a hearing on the Motion to Strike, Case Management Conference, and a
hearing on Motion to Be Relieved occurred. The Motion to Strike was taken off
calendar. The Court granted the Motion to Be Relieved. Tygstand for Kolodziej
represented to the Court that her office did not draft the Amended Complaint
filed on September 19, 2022. The Court struck the Amended Complaint.
Thereafter
Plaintiff filed various filings – (1) on November 02, 2022, Plaintiff filed his
First Amended Complaint (“FAC”) which removed L4L and added Defendants
Assurance Learning Academy (“ALA”) and Lifelong Learning Administration
Corporation (“LLAC”) and alleged eight (8) causes of action for: (a)
Discrimination Based on Age and Disability in Violation of FEHA, (b) Harassment
Based on Age and Disability in Violation of FEHA, (c) Retaliation for
Engagement in Protected Activity in Violation of FEHA, (d) Breach of Express
and Implied Contract Not to Discharge Without Good Cause, (e) Breach of Implied
Covenant of Good Faith and Fair Dealing, (f) Fraud and Deceit: Intentional
Misrepresentation, Concealment, and False Promise, (g) Failure to Prevent
Discrimination, Harassment, and Retaliation in Violation of FEHA, and (h)
Employment Record Statute of Limitations in Violation of California Labor Code
§ 1198.5; (2) on November 03, 2022, a document titled “Notice in Response to
Order of Completion of Service;” (3) on November 04 2022, two documents titled Consent
to Electronic Service and Notice of Electronic Service Address; (4) on November
15, 2022, a document titled “Notice of Request to Set Trial Date” and a
document titled “Notice of Order Filing Second Amended Complaint;” (5) on
November 22, 2022, a document titled “Notice In Support Of Order Of Completion
Of Service;” and (6) on November 23, 2022, a document titled “Notice in Support
of a Trial Date Set at the December 12, 2022 Hearing.”
On November 29,
2023, AVLA, Palacios, Gray, and Vincent filed a document titled “Specially
Appearing Defendants Antelope Valley Learning Academy, Inc., Marcello Enrique
Palacios, Chad Gray, And Jeri Vincent’s Objection To, And Request To Vacate
Plaintiff's Recent Filings In This Case” which objected to five documents: the
FAC; the Notice of Request to Set Trial Date at the December 12, 2022 Hearing;
the Notice of Filing Second Amended Complaint;
the Notice In Support Of Order Of Completion Of Service; and the Notice
In Support of a Trial Date Set at the December 12, 2022 Hearing.
In response,
Derse filed a document on November 30, 2022 titled “Plaintiff John Derse’s
Notice in Support of Setting a Trial Date at the December 12, 2022 Hearing in
Response to Defendants’ Objection.”
On December 05, 2022, AVLA, Palacios,
Gray, and Vincent filed several more documents objecting to Plaintiff’s
filings.
On December 07,
2022, Plaintiff filed a Request for Accommodations by Persons with Disabilities
and Response, requesting a CART accommodation. Plaintiff also requested that he
be accompanied and/or assisted by Ms. Derse.
The Court
granted the CART accommodation on December 07, 2022 and denied the request for
spousal accompaniment on December 09, 2022.
On December 12,
2022, Plaintiff filed six Proofs of Personal Service, one Request for Judicial
Notice, and a Case Management Statement.
On December 12,
2022, an Order to Show Cause Re: Completion of Service on All Unserved
Defendants and a Case Management Conference came on for hearing. The parties
conferred with the Court regarding the operative complaint. The Court granted
Plaintiff leave to file and serve an amended complaint, to be titled the Second
Amended Complaint (“SAC”) and defendants at issue stipulated to file an Answer
upon service of the SAC.
On December 13,
2022, the SAC was filed. It was directed to defendants AVLA, ALA, LLAC,
Palacios, Gray, and Vincent (collectively “Defendants”). The SAC alleged five
causes of action for: (1) Discrimination and/or Harassment based on Age and/or
Disability in Violation of FEHA, (2) Retaliation for Engagement in Protected
Activity in Violation of FEHA, (3)Breach of Express and/or Implied Contract not
to Discharge Without Good Cause, (4) Failure to Prevent
Discrimination/Harassment in Violation of FEHA, and (5) Employment Record
Statute of Limitations in Violation of Cal. Labor Code § 1198.5.
Following this
Plaintiff filed several documents – (1) Report in Support of Discovery Cutoff
on February 23, 2023 filed on December 14, 2022; (2) Report in Support of
Informal Discovery Conference (“IDC”) filed on December 16, 2022; (3) Judicial
Notice Regarding IDC filed on December 22, 2022; (4) Proposed Special Verdict
filed on December 27, 2022; (5) Trial Brief filed on December 27, 2022; (6)
Proposed Jury Question filed on December 27, 2022; (7) Witness List filed on
December 27, 2022; (8) Statement of the Case filed on December 27, 2022; (9)
Notice of IDC on December 28, 2022; (9) Notice to Replace All Three Dates with a
Sooner Trial Date at the IDC filed on December 29, 2022; and (10) Motion RE: To
Replace All Three Dates With a Sooner Trial Date at the IDC filed on December
30, 2022.
On December 30,
2023, Defendants filed an objection to the Notice to Replace All Three Dates with
a Sooner Trial Date at the IDC and an Answer to the SAC.
Plaintiff then
filed several more documents: (1) a Motion for Plaintiff’s Deposition in
Writing on January 06, 2023; (2) a Special Verdict Form on January 11, 2023;
(3) Notice to Defendant's Regarding January 18, 2023 Hearing on January 17,
2023; (4) Notice to Defendant's Regarding January 31, 2023 Hearing on January
17, 2023; (5) Case Management Statement on January 25, 2023; (6) a document
titled “Completed Deposition in Writing/Completion of Defendants Six Sets of
Interrogatories” on January 26, 2023; (7) a Case Management Statement on
January 26, 2023; and (8) a document titled “Motion re: Completion of
Defendants General and Employment Form Interrogatories Completing Discovery on
February 01, 2023” on February 01, 2023.
On February 02,
2023, the Court issued an order striking the document titled “Motion re:
Completion of Defendants General and Employment Form Interrogatories Completing
Discovery on February 01, 2023.”
On February 03,
2023, a Case Management Conference was held. The Court inquired of the
Plaintiff and counsel for defendant and determined that future hearing dates
would remain on calendar as previously scheduled.
On February 03,
2023, after the hearing, Plaintiff filed two documents: (1) Offer to Substitute
Defendants Marcello Enrique Palacios, Chad Gray, and Jerri Vincent, with
Defendants' Insurance Carriers, in Response to the Case Management Conference
on February 03, 2023; and (2) Plaintiff John Matthew Derse's Discovery
Completed on February 01, 2023 Statement After the Case Management Conference
on February 03, 2023.
On February 08,
2023, Plaintiff filed a Motion for Protective Order. Related filings were filed
subsequently. The Motion for Protective Order was later removed.
On July 18,
2023, Defendants requested an IDC.
On August 22,
2023, an IDC was held. Defendants filed a notice for the ruling from the IDC on
August 24, 2023. The Court ordered: (1) Defendants are to file their motions to
compel Plaintiff to respond to written discovery and appear for deposition are
to be heard on September 26, 2023, at 8:30 a.m. in Department A-14 of this
court; (2) the Voluntary Settlement Conference date is vacated with no new date
set; (3) the Final Status Conference date is continued to December 6, 2023, at
8:30 a.m. in Department A-14 of this court; and (4) the current trial date is
continued to December 15, 2023, at 8:30 a.m. in Department A-14 of this court.
On August 28,
2023, Plaintiff filed a Request for Judicial Notice.
On August 29,
2023, Defendants filed their ten Motions to Compel:
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Form Interrogatories, Set One, and Special
Interrogatories, Set One;
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Request for Production of Documents, Set One;
·
Defendant Assurance Learning Academy’s Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One;
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One;
·
Defendant Chad Gray’s Motion to Compel Responses
to Form Interrogatories, Set One, and Special Interrogatories, Set One;
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Form Interrogatories, Set One, and Special Interrogatories, Set
One;
·
Defendants Assurance Learning Academy; Antelope
Valley Learning Academy, Inc.; Lifelong Learning Administration Corporation;
Marcello Enrique Palacios; Chad Gray; and Jeri Vincent’s Motion to Compel
Plaintiff John Matthew Derse’s Deposition;
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Request for Production of Documents, Set One;
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Request for Production of Documents, Set One; and
·
Defendant Chad Gray’s Motion to Compel Responses
to Request for Production of Documents, Set One
On August 30,
2023, Plaintiff filed two Requests for Judicial Notice.
On August 31,
2023, Defendants filed their objections to Plaintiff’s Requests for Judicial
Notice.
No Opposition
has been filed. “All papers opposing a motion so noticed shall be filed with
the court and a copy served on each party at least nine court days. . .before
the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends
the time within which a right may be exercised or an act may be done, does not
apply to a notice of motion, papers opposing a motion, or reply papers governed
by this section.” (Ibid.) The hearing is set for September 26, 2023. Accordingly,
Oppositions were due by September 12, 2023, taking into consideration the holiday
on September 22, 2023. Should an Opposition be filed, it is now untimely.
On September
18, 2023, Defendants filed Notices of Non-Opposition to each of their
respective motions.
-----
Analysis
Standard for Compelling Interrogatories – Cal. Code Civ. Proc. §2030.290 provides
that a party may bring a motion to compel responses to interrogatories, where
the responding party failed to serve a timely response. Unless otherwise
agreed, the responding party is required to serve response within 30 days after
service of the discovery demand for production documents. (Cal. Code Civ. Proc.
§2030.290(b).) If the responding party fails to serve a timely response, the
party “waives any objection to the demand, including one based on privilege or
on the protection for work product . . .” (Cal. Code Civ. Proc. §2030.290(a).)
The requesting party need not demonstrate “good cause to compel responses, nor
that it satisfied the “meet and confer” requirement. (Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 143 Cal.App.4th
390, 404.)
Responses to interrogatories are due within
30 days after service of interrogatories. (Cal. Code Civ. Proc. § 2030.260.)
“The party propounding interrogatories and the responding party may agree to
extend the time for service of a response to a set of interrogatories, or to
particular interrogatories in a set, to a date beyond that provided in Section
2030.260.” (Cal. Code Civ. Proc. § 2030.270(a).) While this agreement may be
informal, it must be confirmed in writing. (Cal. Code Civ. Proc. § 2030.270(b).)
----
Standard for Compelling Responses¿to Requests for¿Production¿(“RFP”)¿–¿Cal. Code Civ. Proc. § 2031.300 provides
that a party may bring a motion to compel responses to a request for production
of documents, where the responding party failed to serve a timely response.
Unless otherwise agreed, the responding party is required to serve response
within 30 days after service of the discovery demand for production documents.
(Cal. Code Civ. Proc. § 2031.260(a).) If the responding party fails to serve a
timely response, the party “waives any objection to the demand, including one
based on privilege or on the protection for work product . . .” (Cal. Code Civ.
Proc. § 2031.300(a).) The requesting party need not demonstrate “good cause to
compel responses, nor that it satisfied the “meet and confer” requirement. (Sinaiko¿Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants¿(2007) 143
Cal.App.4th¿390, 404.)
-----
Discussion
Request for Judicial Notice
–
Pl.’s Request for Judicial Notice 1 [filed on August 28, 2023- request
to judicially notice that discovery was completed on February 01, 2023] –
DENIED. Plaintiff provides
a one-page memo. It appears that Plaintiff is stating that General and
Employment Form Interrogatories were completed, the completed interrogatories
reference Plaintiff’s medical records and such records were received, and
Plaintiff did not do something related to the medical records as he was
hospitalized in April 2023. The Court notes that the memo includes another date
of May 2022 for an involuntary hospitalization. As filed, these are not matters
subject to judicial notice under Cal. Evid. Code §§ 451 or 452 as there is not
sufficient information provided to enable the Court to take judicial notice of
any matter mentioned within the memo.
Pl.’s Request for Judicial Notice 2 [filed on August 30, 2023 – request
to judicially notice that discovery was completed on February 01, 2023] – DENIED. The difference between
this request and the previous request is more specificity as to the
interrogatories (“REGARDING GENERAL FORM INTERROGATORIES 1.0-2.0, 6.0,
8.0-11.0 AND 12.2-12.7 AND EMPLOYMENT FORM INTERROGATORIES 200.0-213.0 AND
215.0”). Plaintiff also discusses “various negotiations” that began in January
2021 to show that Defendants have been away of all the facts, information, and
history related to this case, including the May 2022 involuntary hospitalization.
This request for judicial notice is denied for the same reasons, ante.
Pl.’s Request for Judicial Notice 3 [filed on August 30, 2023 – request
to judicially notice that discovery was completed on February 01, 2023] – MOOT. This appears to be a duplicative
filing. There are minor changes in the wording, but the information contained in
this memo and the request is the same. The Court directs the parties to
Plaintiff’s Pl.’s Request for Judicial Notice 2.
Application –
i.
Interrogatories
AVLA, ALA, Palacios, Gray, and
Vincent move for orders compelling Plaintiff’s responses to their respective
Form Interrogatories, Set One, and Special Interrogatories, Set One.
Each motion discusses the same
type of interrogatories: (1) Form Interrogatories, General, Set One; (2) Form
Interrogatories, Employment, Set One; and (3) Special Interrogatories, Set One.
Each exhibit attached to the motions are ordered the same: (1) Exh. A, a true
and correct copy of each respective moving defendant’s Special Interrogatories,
Set One; (2) Exh. B, a true and correct copy of each respective moving defendant’s
Form Interrogatories, General, Set One; (3) Exh. C, a true and correct copy of each
respective moving defendant’s Form Interrogatories, Employment, Set One; (4)
Exh. D, a true and copy of the documented labeled “Completion of Defendants
General and Employment Form Interrogatories Completing Discovery on February
01, 2023;” (5) Exh. E, a true and correct copy of moving defendants’ meet and
confer e-mail; (6) Exh. F, a true and correct copy of Defendant’s request for
IDC filed on July 18, 2023; (7) Exh. G, a true and correct copy of Notice of
Ruling served on Plaintiff by Defendants after the IDC. Likewise, the
declarations of moving defendants’ counsel, Robert E. Murphy (“Murphy”) is
identical. For the benefit of the judicial economy, the Court addresses these
motions together.
Moving
Defendants propounded Plaintiff with their respective (1) Request for Responses
to Special Interrogatories, Set One, on January 25, 2023 (all Mtns. to Compel
Responses to Interrogatories, Decl. Murphy ¶ 2; Exh. A); and (2) two separate
Form Interrogatories, Set One, one general and one for Employment Law, on
January 30, 2023 (id. Decl. Murphy ¶ 3; Exh. B; Exh. C). The interrogatories
propounded seek information related to the to the alleged incident, including
the circumstances surrounding the event, including employment related inquiries
(Id., Exhs. A, B, and C.)
Moving
defendants presents that on February 01, 2023, Plaintiff filed and served a
document titled “Completion of Defendants General and Employment Form
Interrogatories Completing Discovery on February 01, 2023” in which Plaintiff
asserted that Defendant is “aware of all the facts, information, and history
regarding this entire Case” and thereby, discovery is completed.” (Id., Decl.
¶ 5; Exh. D.) Moving defendants continue to describe their meet and
confer efforts with Plaintiff. (Id., Decl. Murphy ¶¶ 6-8; Exh. E [email]; Exh. F
[IDC request]; Exh. G [Notice of Ruling after IDC].) The Court takes
judicial notice of its own records under Cal. Evid. Code § 452(d). The Court’s
records reflect that the document titled Completion of Defendants General and
Employment Form Interrogatories Completing Discovery on February 01, 2023” was
filed on February 01, 2023 and that this document was stricken on February 02,
2023.
Moving
defendants present that, to date, no response has been received. (Id., Decl. Murphy ¶
4.)
Cal. Code Civ.
Proc. § 2030.260(a) provides that the time for a response to interrogatories is
30 days after service of the interrogatories, unless on motion of the
propounding party the court has shortened the time for response, or unless on
motion of the responding party the court has extended the time for response. 30
days from January 25, 2023 is February 24, 2023. 30 days from January 30, 2023
is March 01, 2023. It is now September 26, 2023. Based on the evidence provided
and the Court’s own records, no response has been turned over for the
propounded interrogatories.
The
Court¿GRANTS¿each respective Motion to Compel Responses to Interrogatories under¿Cal.
Code Civ. Proc. § 2030.290(b)¿and orders¿Plaintiff to serve verified responses
without objections within 45 days of notice of the court order.
ii.
RFPs
AVLA, Palacios, Gray, and Vincent
move for orders compelling Plaintiff’s responses to their respective RFPs, Set
One.
As with the motions to compel
interrogatories, there is substantial overlap between these motions. Each
motion discusses the respective RFPs, Set One, at issue. Each exhibit attached
to the motions are ordered the same: (1) Exh. A, a true and copy of the
documented labeled “Completion of Defendants General and Employment Form
Interrogatories Completing Discovery on February 01, 2023;” (2) Exh. B, a true
and correct copy of moving defendants’ meet and confer e-mail; (3) Exh. C, a
true and correct copy of each respective moving defendant’s RFPs, Set One; (4)
Exh. D, a true and correct copy of Defendant’s request for IDC filed on July
18, 2023; (5) Exh. E, a true and correct copy of Notice of Ruling served on
Plaintiff by Defendants after the IDC. Likewise, the declarations of moving
defendants’ counsel, Murphy is identical. For the benefit of the judicial
economy, the Court addresses these motions together.
Moving defendants propounded Plaintiff with their
respective RFPs, Set One on May 30, 2023. (All Mtns. to Compel Responses to
RFPs, Decl. Murphy ¶ 5; Exh. C.) The
RFPs propounded seek documents related to the to Plaintiff’s claims stemming
from the alleged incident. (Id., Exh. C.)
Moving
defendants presents that on February 01, 2023, Plaintiff filed and served a
document titled “Completion of Defendants General and Employment Form
Interrogatories Completing Discovery on February 01, 2023” in which Plaintiff
asserted that Defendant is “aware of all the facts, information, and history
regarding this entire Case” and thereby, discovery is completed.” (Id.,
Decl. Murphy ¶ 3; Exh. A.) Moving defendants continue to describe their
meet and confer efforts with Plaintiff. (Id., Decl. Murphy
¶¶ 4,7-8; Exh. B [email]; Exh. D [IDC request]; Exh. F [Notice of Ruling after
IDC].) The Court notes that it has taken judicial notice of its own
records under Cal. Evid. Code § 452(d). The Court’s records reflect that the
document titled Completion of Defendants General and Employment Form Interrogatories
Completing Discovery on February 01, 2023” was filed on February 01,
2023 and that this document was stricken on February 02, 2023.
Moving
defendants present that, to date, no response has been received. (Id., Decl. Murphy ¶
6.)
Cal. Code Civ.
Proc. § 2031.260(a) provides that the time for a response to RFPs is 30 days
after service of the RFPs, unless on motion of the propounding party the court
has shortened the time for response, or unless on motion of the responding
party the court has extended the time for response. 30 days from May 30, 2023
is June 29, 2023. It is now September 26, 2023. Based on the evidence provided
and the Court’s own records, no response has been turned over for the
propounded interrogatories.
The Court¿GRANTS¿each respective Motion to
Compel RFP Responses under¿Cal. Code Civ. Proc. § 2031.300 and orders¿Plaintiff
to serve verified responses without objections within XX days of notice of the court order.
iii.
Deposition
Defendants collectively filed one
motion seeking to compel Plaintiff’s appearance at a deposition.
Defendants present that on May
23, 2023, they served their original notice of Plaintiff’s deposition. (Mtn. to
Compel Plaintiff’s Appearance at Deposition, Decl. Murphy ¶ 2.) The Court notes
that the year is missing in the Memorandum of Points and Authorities (see id.
at 3:9); however, it is evidenced by Murphy’s declaration (see id. at
Decl. Murphy ¶ 2.) The Court notes that there are two other places where the
May 26, 2023 date is referenced: the notice (see id., 2:5) and in one
paragraph of the Memorandum of Points and Authorities (see id., 4:19). The
proof of service of the attached Notice of Taking Plaintiff’s Deposition (the
“Notice”) does not reflect the date of May 23, 2023. The Notice reflects that it
was served on May 26, 2023. (Id., Exh. A.) Defendants present that Plaintiff
did not appear for his deposition on June 08, 2023. (Id., Decl. Murphy ¶
3.)
The Court notes that Defendants
detail their meet and confer efforts, including an IDC, in the motion as well
as in Murphy’s declaration, as required by Cal. Code Civ. Proc. §
2025.450(b)(2).
Under Cal. Code Civ. Proc. § 2025.010
provides, in relevant part: “Any party may obtain discovery within the scope
delimited by Chapter 2 (commencing with Section 2017.010), and subject to the
restrictions set forth in Chapter 5 (commencing with Section 2019.010), by
taking in California the oral deposition of any person, including any party to
the action.” Accordingly, an oral deposition is a valid form of discovery under
the Civil Discovery Act. Cal. Code Civ. Proc. § 2025.270(a) states “An oral
deposition shall be scheduled for a date at least 10 days after service of the
deposition notice.” The Notice provides for a deposition on June 08, 2023.
(Mtn. to Compel Plaintiff’s Appearance at Deposition, Exh. A.) Ten days from
May 26, 2023 is June 05, 2023. The Notice adheres to Cal. Code Civ. Proc. §
2025.270(a). Cal. Code Civ. Proc. § 2025.410 provides that a party served with
a deposition notice must promptly serve a written objection regarding an error
or irregularity with the deposition notice “at least three calendar days prior
to the date for which the deposition is scheduled.” (Cal. Code Civ. Proc.
§2025.410(a).) The evidence presented shows that no objection was served. Therefore,
under Cal. Code Civ. Proc. § 2025.410(a), Plaintiff “waive[d] any error or
irregularity.” The evidence presented
also shows that Plaintiff did not show up for his noticed deposition.
The Court GRANTS the Motion to
Compel Plaintiff John Matthew Derse’s Deposition under Cal. Code Civ. Proc. § 2025.450(a)
and orders Plaintiff to appear for a deposition by December 1, 2023.
-----
I.
Sanctions
Defendant requests sanctions against
Plaintiff as follows:
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Form Interrogatories, Set One, and Special
Interrogatories, Set One – $1,310 [5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Assurance Learning Academy’s Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One – $1,310.00 [5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One – $1,310.00 [5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Chad Gray’s Motion to Compel Responses
to Form Interrogatories, Set One, and Special Interrogatories, Set One – $1,310.00
[5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Form Interrogatories, Set One, and Special Interrogatories, Set
One – $1,310.00 [5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Request for Production of Documents, Set One – $1,310.00
[5 hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Request for Production of Documents, Set One – $1,310.00 [5
hrs @ $250.00/hr + $60.00 filing fee];
·
Defendant Chad Gray’s Motion to Compel Responses
to Request for Production of Documents, Set One – $1,310.00 [5 hrs @ $250.00/hr
+ $60.00 filing fee];
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Request for Production of Documents, Set One – $3,060.00 [ 12 hrs @
$250.00/hr + $60.00 filing fee]; and
·
Motion to Compel Plaintiff John Matthew Derse’s
Deposition – $1,750.00 [7 hrs @ $250.00/hr];
“The court shall impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010) against any party, person,
or attorney who unsuccessfully makes or opposes a motion to compel a response
to interrogatories, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.” (Cal. Code Civ. Proc. § 2030.290(c).)
“Except as provided in subdivision (d), the
court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel a response to a demand for inspection, copying,
testing, or sampling, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make the
imposition of the sanction unjust. If a party then fails to obey the order
compelling a response, the court may make those orders that are just, including
the imposition of an issue sanction, an evidence sanction, or a terminating
sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to this sanction, the court may impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010).” (Cal. Code Civ. Proc. §
2031.300(c).) Subdivision (d) is not applicable here as it focuses on the
failure to provide electronically stored information that has been lost,
damaged, altered, or overwritten as a result of the routine, good faith
operation of an electronic information system and the corresponding obligation
to preserve discoverable information. (Cal. Code Civ. Proc. §
2031.300(d).)
“If a motion under subdivision
(a) is granted, the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) 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 the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.” (Cal. Code Civ. Proc. § 2025.450(g)(1).)
Plaintiff has not opposed any motion.
As such, it appears Plaintiff has not acted with substantial justification or
other circumstances make the imposition of sanctions unjust.
The Court imposes a sanction of $250.00
pursuant to Cal. Code Civ. Proc. §§ 2030.290(c), 2031.300(c), and
2025.450(g)(1).
-----
Conclusion
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Form Interrogatories, Set One, and Special
Interrogatories, Set One is GRANTED;
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Request for Production of Documents, Set One is GRANTED;
·
Defendant Assurance Learning Academy’s Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One is GRANTED;
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Form Interrogatories, Set One, and Special Interrogatories,
Set One is GRANTED;
·
Defendant Chad Gray’s Motion to Compel Responses
to Form Interrogatories, Set One, and Special Interrogatories, Set One is
GRANTED;
·
Defendant Jeri Vincent’s Motion to Compel
Responses to Form Interrogatories, Set One, and Special Interrogatories, Set
One is GRANTED;
·
Defendants Assurance Learning Academy; Antelope
Valley Learning Academy, Inc.; Lifelong Learning Administration Corporation;
Marcello Enrique Palacios; Chad Gray; and Jeri Vincent’s Motion to Compel
Plaintiff John Matthew Derse’s Deposition is GRANTED;
·
Defendant Marcello Enrique Palacios’ Motion to
Compel Responses to Request for Production of Documents, Set One is GRANTED;
·
Defendant Antelope Valley Learning Academy’s
Motion to Compel Responses to Request for Production of Documents, Set One is
GRANTED; and
·
Defendant Chad Gray’s Motion to Compel Responses
to Request for Production of Documents, Set One is GRANTED.
Plaintiff John
Matthew Derse is order to provide responses to all interrogatories and requests
for productions propounded within 45 days of this Court Order.
Plaintiff John
Matthew Derse is ordered to appear for a deposition by December 1, 2023.