Judge: Teresa A. Beaudet, Case: 19STCV17427, Date: 2022-10-03 Tentative Ruling

Case Number: 19STCV17427    Hearing Date: October 3, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Teresa Delfin (“Plaintiff”) filed this action on May 20, 2019 against Defendant Whittier College (“Defendant”). The operative Fifth Amended Complaint (“FAC”) was filed on January 24, 2022 and asserts causes of action for (1) defamation, (2) retaliation (FEHA), (3) failure to prevent/investigate/remedy retaliation and/or harassment (FEHA), (4) retaliation (Labor Code § 1102.5), (5) sexual harassment hostile work environment (FEHA), (6) retaliation (Title IX), and (7) wrongful termination in violation of public policy.

On May 19, 2022, Plaintiff served Defendant with a “Notice of Deposition of Person Most Qualified Regarding Emails and Deleted Nerhood Nomination Emails and Request for Production of Documents and Things.” (Kim Decl., ¶ 20, Ex. N.)[1] On May 25, 2022, Defendant objected to this deposition notice. (Kim Decl., ¶ 23, Ex. T.) Thereafter, Plaintiff served an amended PMQ deposition notice on May 25, 2022. (Kim Decl., ¶ 24, Ex. U.) 

On March 9, 2022, Plaintiff served deposition notices with requests for production for the lecturers Melanie Householder, Lisa Ibanez, Gina Jordan-Faradineh, Jean McHatton,

Charlie Eastman, and Ricki Ichiho. (Kim Decl., ¶ 41, Ex. DD.) On June 15, 2022, Plaintiff served first amended deposition notices for these lecturers. (Kim Decl., ¶ 61, Ex. RR.) In its opposition, Defendant indicates that it served objections to Plaintiff’s amended notices of deposition for the lecturers. (Ibarra Decl., ¶ 5, Ex. 2.) 

            On January 28, 2021, Plaintiff’s counsel deposed sal johnston.[2] (Kim Decl., ¶ 64.) On June 15, 2022, Plaintiff served Defendant with Plaintiff’s “Notice of Resumed Deposition of Sal Johnston.” (Kim Decl., ¶ 69, Ex. YY.) On June 15, 2022, Defendant’s counsel stated that Defendant would not agree to produce johnston for another deposition and maintained

Defendant’s position that johnston’s deposition was closed. (Kim Decl., ¶ 70.) On July 13, 2022, Defendant’s counsel indicated that Defendant agreed to produce sal johnston for deposition for two hours to address two issues. (Kim Decl., ¶ 76, Ex. AAA.) Plaintiff did not agree to limit the

deposition to two hours in advance. (Kim Decl., ¶ 77.) 

            On July 11, 2022, the parties participated in an Informal Discovery Conference (“IDC”) concerning the subject depositions. (Kim Decl., ¶ 2.) However, the parties were unable to resolve the discovery disputes.

Plaintiff now moves for an order compelling the depositions of (1) the Person Most Qualified re: “Nerhood nominations,” (2) Melanie Householder, Charlie Eastman, Jeannie McHatton, Gina Jordan-Faradineh, Riki Ichiho, and Lisa Ibanez (collectively, the “Lecturers”)[3], and (3) johnston. Plaintiff also seeks monetary sanctions against Defendant in the amount of $12,621.65. Defendant opposes.

            Discussion

A.    Procedural Matters   

As an initial matter, Defendant notes that on June 15, 2022, the Court continued the trial date in this action, which was scheduled for July 20, 2022 at that time. The Court’s June 15, 2022 minute order provides, inter alia, that “[p]ursuant to the request of plaintiff, the Jury Trial scheduled for 07/20/2022 is advanced to this date and continued to 10/05/22…” The June 15, 2022 minute order also provides, “[e]xpert discovery cut-off based on new trial date. Non-expert discovery cutoff remains tied to July 20, 2022 trial date.” (Emphasis added.) Plaintiff provides the transcript of the June 15, 2022 hearing on Plaintiff’s ex parte application for an order continuing the trial date. (Kim Decl., ¶ 3, Ex. A.) As set forth in the transcript, the Court stated, “[t]he cutoff dates are tied to the old trial date except for pending discovery and discovery motions.” (Kim Decl., ¶ 3, Ex. A, p. 6:18-19.)

Defendant asserts that Plaintiff’s deposition notices for sal johnston and the lecturers were not “pending” as of June 15, 2022. Defendant also asserts that the instant motion is improper because the last day to hear discovery motions was July 5, 2022 (15 days before July 20, 2022). (Opp’n at p. 10, fn. 7-8.)[4]

            However, the Court agrees with Plaintiff that the instant motion and the discovery that is the subject of the motion was “pending” for purposes of the nonexpert discovery cutoff. The disputes regarding the subject depositions had been ongoing before the June 15, 2022 hearing, as discussed below.

First, as set forth above, Plaintiff served the amended PMQ deposition notice on May 25, 2022. (Kim Decl., ¶ 24, Ex. U.) Defendant does not dispute that the subject PMQ deposition notices were “pending” before June 15, 2022.   

On March 9, 2022, Plaintiff served deposition notices with requests for production for the lecturers Melanie Householder, Lisa Ibanez, Gina Jordan-Faradineh, Jean McHatton, Charlie Eastman, and Ricki Ichiho. (Kim Decl., ¶ 41, Ex. DD.) Defendant asserts that Plaintiff’s counsel indicated she would take these depositions “off calendar” if Defendant produced certain documents. (Opp’n at p. 5:9-11.) But this wasn’t exactly what was stated. Plaintiff’s counsel sent an email on March 21, 2022 indicating, inter alia, that “[i]f I receive all the documents by the close of business on March 23, depending on my review of the documents, I may decide to take one or more of the lecturers’ depositions off calendar.” (Kim Decl., ¶ 54, Ex. LL.) Defendant asserts that “comparator evidence documents” were thereafter produced, and Plaintiff’s counsel chose to not go forward with the lecturers’ depositions. (McKenna Decl., ¶ 5.) This is disputed by Plaintiff’s counsel, who asserts that she has “not communicated to defense counsel that Plaintiff was withdrawing any of the deposition notices for the lecturers because Plaintiff has not withdrawn these deposition notices.” (Kim Decl., ¶ 59.) 

In addition, on June 15, 2022, Plaintiff served Defendant with Plaintiff’s “Notice of Resumed Deposition of Sal Johnston.”(Kim Decl., ¶ 69, Ex. YY.) However, when Plaintiff’s counsel deposed sal johnston on January 28, 2021, she stated on the record that she would be keeping his deposition open. (Kim Decl., ¶ 64, Ex. SS, pp. 11, 180-181.) Defendant’s position was that the deposition was closed. (Kim Decl., ¶ 70.)

Lastly, as Plaintiff notes, following the June 15, 2022 hearing, the parties participated in an IDC on July 11, 2022. The Court’s July 11, 2022 minute order provides, inter alia, that “[t]he parties completed their IDC obligation regarding the topics set forth in their statements filed 7/06/2022 and 7/1/2022.” The IDC Statement filed by Plaintiff on July 1, 2022 concerns the depositions that are the subject of the instant motion.

B.    Legal Standard

Code of Civil Procedure section 2025.450, subdivision (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[5], 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 of Civil Procedure section 2025.450, subdivision (b) provides:

            “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.”

            Pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), “[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 the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

C.    PMQ Deposition Regarding Nerhood Nominations

Plaintiff’s “Amended Notice of Deposition of Person Most Qualified Regarding Emails and Deleted Nerhood Nomination Emails and Request for Production of Documents and Things” seeks testimony on three topics, including: (1) Defendant’s policies, procedures and practices regarding the retention, restoration and/or destruction of Defendant’s emails during the “Covered Period”[6]; (2) all steps taken by the deponent to search for all emails related to nominations for the Nerhood Excellence in Teaching Award (“Nerhood”) that were sent by anyone to Elizabeth Ibarra (eibarra@whittier.edu) from March to April 2017, including emails that Ms. Ibarra may have deleted; and (3) all steps taken by Defendant to search for emails related to Nerhood nominations that were sent by anyone to Elizabeth Ibarra (eibarra@whittier.edu) from March to April 2017, including emails that Ms. Ibarra may have deleted. (Kim Decl., ¶ 24, Ex. U.) 

Plaintiff contends that the Nerhood nominations issue affects Plaintiff’s retaliation and punitive damages claims, as Dean Good informed Plaintiff on March 10, 2017 that he had decided to terminate Plaintiff’s employment for inadequate performance in teaching, advising and service; and immediately after, Plaintiff was nominated for the Nerhood Award. (Kim Decl., ¶ 6; Ex. D.)

In the opposition, Defendant asserts that Plaintiff’s PMQ deposition notice seeks a second deposition of Mr. Rudy Jordan, the PMQ regarding Whittier’s policies on retention, destruction and restoration of electronically stored information, but that all of these topics are duplicative of testimony Mr. Jordan provided in his first deposition. (See Opp’n at p. 6:23-8:10.) But Defendant does not appear to argue that Mr. Jordan previously testified regarding the two topics concerning the search for emails related to the Nerhood award nominations. In addition, Plaintiff indicates that Mr. Jordan’s prior February 4, 2021 PMQ deposition took place before

Defendant first produced any Nerhood-related documents on April 9, 2021. (Kim Decl., ¶ 21.)

The Court notes that Plaintiff does not appear to dispute in the reply that Mr. Rudy previously testified regarding Defendant’s policies, procedures and practices regarding the retention, restoration and/or destruction of Defendant’s emails (the first topic in the May 25, 2022 amended deposition notice).

Based on the foregoing, the Court finds that Plaintiff has demonstrated good cause to compel the deposition of the PMQ “regarding emails and deleted nerhood nomination emails”

on the second and third topics of testimony listed on the subject May 25, 2022 amended deposition notice. (Kim Decl., ¶ 24, Ex. U.) 

D.    Lecturer Depositions

As set forth above, Plaintiff indicates in the reply that she will not be pursuing the depositions of Lisa Ibanez, Jean McHatton, and Charles Eastman. That leaves the lecturers Melanie Householder, Gina Jordan-Faradineh, and Riki Ichiho. Plaintiff asserts that their testimony as to their experiences as fellow Lecturers, particularly with regard to the Department’s and Faculty Personnel Committee’s (“FPC”) evaluations of their Personal Evaluation Growth Plans (“PEGP”), is reasonably calculated to lead to admissible evidence of retaliation. This does not appear to be disputed by Defendant.

The Court finds that Plaintiff has demonstrated good cause to compel the depositions of lecturers Melanie Householder, Gina Jordan-Faradineh, and Riki Ichiho. 

E.     sal johnston Deposition

Plaintiff notes that on July 13, 2022, Defendant’s counsel emailed Plaintiff’s counsel indicating that Defendant’s counsel is authorized to produce sal johnston for two hours of deposition to address two issues: “(a) the email chain regarding the meeting with Dean Good; and (b) the issue involving retention of lecturers’ PEGPs and what lecturers submitted them.” (Kim Decl., ¶ 76; Exh. AAA.)[7] Plaintiff did not agree to limit the deposition of sal johnston to two hours in advance, and the deposition did not go forward. (Kim Decl., ¶ 77.) 

Defendant does not appear to dispute that Plaintiff has good cause to continue sal johnston’s deposition. As set forth above, Defendant’s counsel agreed to produce him subject to certain limitations. As to the dispute concerning the two-hour time-limit, Plaintiff notes that pursuant to Code of Civil Procedure section 2025.290, subdivision (a), “[e]xcept as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Section 2025.290 shall not apply under certain circumstances, including, inter alia, “[t]o any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship,” and “[t]o any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.” (Code Civ. Proc., § 2025.290, subd. (b)(4)-(5).) Thus, the seven-hour limit is not applicable to the foregoing employment matters. Defendant does not address Section 2025.290 in the opposition.   

Based on the foregoing, the Court finds that Plaintiff has demonstrated good cause to compel the resumed deposition of sal johnston.   

F.     Documents

To the extent Plaintiff seeks an order compelling the production of documents, such request was not included in Plaintiff’s notice of motion. The notice indicates that Plaintiff

moves “for an order compelling the depositions of: (1) the Person Most Qualified re: Nerhood nominations, (2) other Lecturers (Melanie Householder, Charlie Eastman, Jeannie McHatton, Gina Jordan-Faradineh, Riki Ichiho, and Lisa Ibanez), and (3) sal johnston to take place within 14 days of the order.” (Notice of Motion at p. 3:5-8.) “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state ‘the grounds upon which it will be made.’ California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph ‘the nature of the order being sought and the grounds for issuance of the order.’ As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) 

Plaintiff asserts in the reply that “the documents Plaintiff requested are the same ones that the Court compelled in its March 4, 2022 Order re: comparator discovery which Defendant continues to withhold.” (Reply at p. 3, fn. 2.) The Court notes that it does not issue orders to comply with its orders, so no further order is necessary or appropriate to compel compliance with the March 4, 2022 Order.

G.    Request for Sanctions

Plaintiff seeks sanctions against Defendant in the amount of $12,621.65. The Court finds that Defendant acted with substantial justification in presenting its position and thus declines to award sanctions against Defendant.

Defendant also indicates that it seeks sanctions against Plaintiff pursuant to Code of Civil Procedure section 2025.450 because her motion is without substantial justification. But as set forth above, Code of Civil Procedure section 2025.450, subdivision (g)(1) provides, “[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 the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” It is unclear on what grounds Defendant seeks sanctions under Code of Civil Procedure section 2025.450.

Defendant also asserts that sanctions are warranted “because despite the Court’s repeated admonishments that none of the parties are to cite to, pretend to quote or repeat statements made by either of the parties’ counsel or the Court during Informal Discovery Conference (‘IDC’), including such an admonishment at the ex parte on July 18, 2022, Plaintiff’s declaration is full of such references.” (Opp’n at p. 3:11-15.) However, Defendant does not cite to any legal authority under which the Court may award sanctions to Defendant for this reason. Moreover, the Court does not caution the parties at the IDC that sanctions could be awarded for such conduct.  Instead, the Court explains at the start of the IDC that the reason not to repeat statements made at the IDC is two-fold: (1) The nature of an IDC is that it is like a settlement conference in that it is an effort to compromise, so it is not appropriate and only aggravating to reference the comments made. (2) The Court also states that it will not likely be able to remember or establish who said what at an IDC because the Court does not take extensive notes at the IDC. Additionally, the Court reminds the participants at an IDC that there are no orders after an IDC unless there is a stipulation and order, and any such stipulation and order will be reflected in the minute order for the IDC. Nothing else discussed at the IDC constitutes an order and therefore it is not binding on the case.

Conclusion

Based on the foregoing, Plaintiffs’ motion to compel is granted in part, as set forth above.

The Court orders Defendant to produce the PMQ re: “Nerhood nominations,” Melanie Householder, Gina Jordan-Faradineh, Riki Ichiho, and sal johnston to appear for deposition at a date, time, and location to be determined by Plaintiff, subject to Defendant’s availability. To that end, Defendant is ordered to meet and confer with Plaintiff within 10 days of the date of this Order to set a mutually agreeable date for the depositions.

            The deposition of the PMQ re: “Nerhood nominations” is limited to the second and third topics of testimony listed on the subject May 25, 2022 amended PMQ deposition notice.

Plaintiff is ordered to give notice of this ruling.

DATED:  October 3, 2022                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court