Judge Theresa M. Traber, Case Number: 21STCV40257, Date: 2024-07-01 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV40257, Date: 2024-07-01 Tentative Ruling

Case Number: 21STCV40257 Hearing Date: July 1, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 1, 2024 TRIAL DATE: July 16, 2024

CASE: Erwin Mandani v. LAC+USC Medical Center, et al.

CASE NO.: 21STCV40257

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS (x2)

MOVING PARTY: (1) Defendant County of Los Angeles; (2) Plaintiff Erwin Mandani

RESPONDING PARTY(S): (2) Plaintiff Erwin Mandani; (2) Defendant County of Los Angeles

CASE HISTORY:

· 11/02/21: Complaint filed.

· 01/28/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for disability discrimination. Plaintiff alleges that Defendants refused to provide him with reasonable accommodations and constructively terminated him by placing him on disability leave without pay.

Defendant County of Los Angeles filed a motion to compel a further deposition of Plaintiff. Plaintiff, in turn, filed a motion to compel the depositions of Stephanie Summerville and Defendant’s person most knowledgeable. Both parties also seek sanctions.

TENTATIVE RULING:

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

Plaintiff’s Motion to Compel Deposition of Stephanie Summerville is GRANTED. Defendants are directed to produce Stephanie Summerville and their Person Most Knowledgeable for deposition at a time and place of Plaintiff’s choosing within 5 court days of this order. This ruling is conditioned on Plaintiff paying $60 in filing fees within 5 calendar days of this order.

Plaintiff’s Requests for Sanctions are DENIED.

DISCUSSION:

Motion to Compel Further Deposition of Plaintiff

Defendant County of Los Angeles moves to compel a further deposition of Plaintiff Erwin Mandani. Although this motion is styled as merely a “motion to compel deposition,” Defendant candidly admits that this is a motion to take a second deposition of Plaintiff. (Motion p.1:11-14.) The instant motion is therefore properly brought under Code of Civil Procedure section 2025.610, which is not set forth in the Notice of Motion.

Legal Standard for Compelling Further Deposition

Code of Civil Procedure Section 2025.610 provides in relevant part:

(a)¿Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b)¿Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.

(Code Civ. Proc. §2025.610(a)-(b).) Depositions may be compelled under Code of Civil Procedure section 2025.450, which 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(a).)

Meet and Confer

Here, the Declaration of Defendant’s counsel states that her office contacted Plaintiff’s counsel on May 22, 2024 requesting deposition dates for the continued deposition of Plaintiff. (Declaration of Sarah E. Hernandez ISO Mot. ¶ 5 Exh. A.) Plaintiff’s counsel stated that they would respond the next day, but failed to do so. (Id Exh. B.) Defendant’s counsel followed up on May 28, and Plaintiff’s counsel responded that the deposition was closed, which Defendant disputed. (Id. ¶ 6 Exh. C.) Defendant’s counsel reached out a third time on May 30, and was informed that Plaintiff was out for a medical procedure. (Id. ¶ 7; Exh D.) No dates were ever provided. (Id. ¶ 7.) The Court therefore finds that Defendant has satisfied its meet and confer obligations.

Analysis

Defendant moves to compel the further deposition of Plaintiff Erwin Mandani. Defendant conducted an initial deposition of Plaintiff on June 13, 2023. (Hernandez Decl. ¶ 4, Exh. A.) According to the deposition transcript, counsel agreed “to suspend the deposition [and] meet and confer as to a next available time to conclude Mr. Mandani’s deposition.” (Id. Exh. A. 6-8.) However, the record shows that Defendant did not follow up on this obligation until May 22, 2024, eleven months after the original deposition ended. (Hernandez Decl. ¶¶ 5-7.) At that time, the parties were not able to reach an agreement as to a date for a follow-up deposition. (Id.)

Based on this record, it appears that the parties never formally stipulated to a subsequent deposition pursuant to section 2025.610(b), only to meet and confer as to scheduling. Thus, Defendant would only be entitled to an order compelling a further deposition upon a showing of good cause. Defendant has made no such showing, as the County offers no explanation for the failure to follow up on Plaintiff’s deposition for nearly a full year. Moreover, even assuming that the parties had stipulated to a further deposition under subdivision (b) of section 2025.610, Defendant’s eleven-month delay in trying to set up a second deposition date, coupled with Plaintiff’s warning that excessive delay would provoke objection to any further deposition (Declaration of Jonathan LaCour, ¶ 7), suggests that the defense effort to seek a further pre-trial deposition was employed to cause unwarranted annoyance, oppression, or undue burden or expense on the eve of trial, which is a misuse of the discovery process for which Defendant may be subject to sanctions. (Code Civ. Proc. §§ 2023.010(c); 2023.030(a).) In either circumstance, the record at hand warrants denial of Defendant’s motion.

Sanctions

Plaintiff, in opposition, requests sanctions against Defendant and its counsel in the amount of $1,500.

Code of Civil Procedure section 2025.450(g)(1) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel deposition, 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.

Here, Plaintiff’s counsel states that he “spent multiple hours reviewing Defendant’s Motion and preparing Plaintiff’s Opposition,” but limits his request for attorney’s fees to $1,500, reflecting 1.76 hours of attorney time at his hourly rate of $850 per hour. (Declaration of Jonathan LaCour ISO Opp. ¶ 15.) However, Plaintiff’s Notice of Opposition does not specify that he seeks sanctions, and the motion does not state whether the sanctions are sought against Defendant and its counsel jointly, severally, or jointly and severally. Because of this ambiguity, the Court finds that Plaintiff has not properly noticed his request for sanctions, and therefore that any award of sanctions would be a violation of Defendant’s and its counsel’s rights to due process. (Code Civ. Proc. § 2023.040.) The Court therefore declines to award sanctions.

Conclusion

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

Plaintiff’s request for sanctions is DENIED.

Motion to Compel Depositions of Stephanie Summerville and Person Most Knowledgeable

Plaintiff moves to compel the depositions of Stephanie Summerville and of Defendant’s Person Most Knowledgeable.

Two Motions in One

Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].)

Here, Plaintiff improperly combined two Motions to Compel Deposition into a single filing. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect. The Court therefore conditions its ruling on this motion on the payment of an additional $60 in filing fees within 5 calendar days of this order.

Legal Standard

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

(Code Civ. Proc. § 2025.450(a).) Further, where production of documents is sought in connection with the deposition, the motion must set forth specific facts showing good cause justifying the production. (Code Civ. Proc. § 2025.450(b)(1).)

Meet and Confer

A motion to compel a deposition must include a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion, or, when the deponent fails to attend the deposition and produce the documents, a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc. §§ 2025.450(b); 2016.040.)

Plaintiff’s counsel states that he attempted to meet and confer with Defendant’s counsel regarding these depositions via email on June 14, 2024, the date this motion was filed, but was not successful in resolving this dispute. (Declaration of Jonathan LaCour ISO Mot. Exh. D.) This declaration is sufficient for the relaxed meet-and-confer requirements for nonappearance by a deponent.

Deposition of Stephanie Summerville

Plaintiff moves to compel the deposition of Stephanie Summerville. Plaintiff originally noticed the deposition on April 6, 2023 to be taken on June 12, 2023. (LaCour Decl. ¶ 3, Exh. A.) When Ms. Summerville did not appear, Plaintiff re-noticed the deposition four more times, with the final notice given on March 4, 2024 for a March 12 deposition. (La Cour Decl. ¶¶ 4-5.) Plaintiff’s counsel states that Defendants objected to each notice, but does not specify the objections or provide copies of those objections. (Id. ¶ 5.)

All versions of the Notice also sought production of documents and/or communications sent by or to the deponent pertaining to Plaintiff from May 2019 to the present. (Id.) Plaintiff states that, according to organizational charts produced by Defendants, Ms. Summerville oversaw the department in which Plaintiff was employed. (Id. ¶ 9, Exh. C.) Plaintiff has therefore shown good cause for the document requests in the notice.

Defendant does not address the putative objections to the deposition notice, and solely opposes the motion on the grounds that it is purportedly untimely brought. Code of Civil Procedure section 2024.020(a) states that any party is entitled, as a matter of right, to complete discovery no later than 30 days before trial, and to have discovery motions heard no later than 15 days before trial. (Code Civ. Proc. § 2024.020(a).) As Defendant admits, the date of hearing for this motion, July 1, 2024, is the last day to hear discovery motions for the July 16, 2024 trial date. Defendant claims, however, that the motion is untimely because it was not served 16 court days in advance, pursuant to Code of Civil Procedure section 1005(b).

Defendant’s argument is specious. First, section 1005(b) governs notice of a motion, not the timeliness of when a motion is made or whether the Court has jurisdiction to hear it. Second, and more importantly, the briefing schedule on this motion was specially set on June 18, 2024 following Plaintiff’s ex parte application to advance the hearing date to July 1, 2024. (June 18, 2024 Minute Order.) The Court is therefore not persuaded that the abbreviated notice of this motion should constitute a basis for denial.

Deposition of Defendant’s Person Most Knowledgeable

Plaintiff also moves to compel the deposition of Plaintiff’s person most knowledgeable.

Plaintiff originally noticed the deposition on November 2, 2023, to take place on November 21, 2023. (LaCour Decl. ¶ 6, Exh. B.) When Defendant’s Person Most Knowledgeable did not appear, Plaintiff re-noticed the deposition two more times, with the final notice given on February 27, 2024 for an April 18 deposition. (La Cour Decl. ¶ 6.) Plaintiff’s counsel states that Defendants objected to each notice, but again fails to identify the specific objections or provide copies of those objections. (Id.) All versions of the Notice also sought production of documents pertaining to LAC+USC Medical Center’s available job positions in 2020 and 2021, or relating to its hiring practices. (Id. Exh. B.) These materials are facially relevant to the allegations in the operative First Amended Complaint, which concern Defendants’ constructive termination of Plaintiff and failure to accommodate or rehire him during that period, while hiring other workers to perform the same tasks. (See generally FAC ¶¶ 29-50.) The document requests thus demonstrate good cause on their face.

Defendant offers the same argument in opposition to the deposition of its person most knowledgeable as it does for the deposition of Ms. Summerville. For the reasons stated above, this argument is not persuasive.

Sanctions

Plaintiff also requests sanctions in connection with this motion.

Here, however, the Court is not inclined to award sanctions where Plaintiff has (1) improperly combined multiple motions and (2) failed to specify whether the sanctions are sought against Defendants and their counsel jointly, severally, or jointly and severally, in violation of Code of Civil Procedure section 2023.040. (See Notice of Motion.)

Conclusion

Accordingly, Plaintiff’s Motion to Compel Deposition of Stephanie Summerville is GRANTED. Defendants are directed to produce Stephanie Summerville and their Person Most Knowledgeable for deposition at a time and place of Plaintiff’s choosing within 5 court days of this order.

Plaintiff’s request for sanctions is DENIED.

CONCLUSION:

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

Plaintiff’s Requests for Sanctions are DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: July 1, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.