Judge: Theresa M. Traber, Case: 23STCV15028, Date: 2024-11-27 Tentative Ruling

Case Number: 23STCV15028    Hearing Date: November 27, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 27, 2024               TRIAL DATE: June 17, 2025

CASE:                         Lauren Redmond v. Charles Schwab & Co., Inc.

CASE NO.:                 23STCV15028           

(1)   MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(2)   MOTION FOR PROTECTIVE ORDER

MOVING PARTY:               (1) Defendants Charles Schwab & Co., Inc., Matthew Floit, and Andrew Ludwick; (2) Plaintiff Lauren Redmond

RESPONDING PARTY(S): (1) Plaintiff Lauren Redmond; (2) Defendants Charles Schwab & Co., Inc., Matthew Floit, and Andrew Ludwick

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment discrimination action that was filed on June 28, 2023. Plaintiff alleges that she was harassed and terminated based on her gender and a perceived disability.

Defendants move to compel Plaintiff to appear for further deposition, and for sanctions. Plaintiff moves for a protective order regarding the manner of taking further depositions.

TENTATIVE RULING:

Defendant’s Motion to Compel Deposition is GRANTED. Plaintiff is ordered to appear in-person for her deposition at a time and place of Defendants’ choosing within 30 days of this order.

Defendants’ request for sanctions is DENIED.

Plaintiff’s Motion for a Protective Order is GRANTED. Individual Defendants Matthew Floit and Andrew Ludwick may attend Plaintiff’s in-person deposition by remote means only.

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DISCUSSION:

Motion to Compel Deposition

            Defendants move to compel Plaintiff to appear for further deposition, and for sanctions.

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

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. (Code Civ. Proc. §§ 2025.450(b); 2016.040.) 

            The Declaration of Eric May in support of the motion sets forth a series of e-mail exchanges between counsel for the parties regarding Plaintiff’s continued deposition on August 13, August 19, and August 21, 2024. (Declaration of Eric W. May ISO Mot. ¶¶ 9-10; Exhs. 6-7.) A bare exchange of e-mails asserting the parties’ position is not a “reasonable and good-faith attempt” at informal resolution of the issues presented in this motion, as it does not indicate any meaningful expenditure of effort by either side to reach a mutually-acceptable solution. Defendants have not satisfied their statutory meet-and-confer obligations.

Defendants’ Evidentiary Objections

            Defendants object to portions of the Declaration of Michael Freiman in support of the opposition to this motion. As the Court does not rely on that declaration in reaching its ruling, the Court does not consider Defendants’ objections.

Missing Proof of Service

            Plaintiff’s opposition papers are not accompanied by a proof of service. However, although Defendants note the absence of a proof of service, Defendants do not claim that they were not timely served with the opposition papers. The Court therefore finds the absence of a proof of service to be immaterial in this context.

Analysis

            Defendants move to compel Plaintiff to appear for further deposition. On July 8, 2024, Defendants noticed Plaintiff’s deposition to proceed on August 2, 2024, pursuant to a June 17, 2024 order from this Court. (May Decl. ¶¶ 6-7; Exh. 4.) Plaintiff’s deposition proceeded on August 2, but was terminated after three hours on the record. (Declaration of Diana Tabacopoulos ISO Mot. ¶ 4; Exh. 1.) The deposition was re-scheduled and re-noticed to continue on August 8, 2024. (Tabacopolous Decl. ¶ 5; May Decl. ¶ 8 Exh. 5.) Plaintiff’s deposition resumed on August 8, but Plaintiff’s counsel terminated the deposition after four hours on the record. (Tabacopolous Decl. ¶ 6; Exh. 2.) Defendants argue that Plaintiff had no valid basis to terminate the deposition and should be compelled to proceed with a further deposition.

            Although Plaintiff’s opposition contests the characterization of the deposition proceedings and challenges Defendants’ demand for sanctions, Plaintiff expressly states that she has agreed to attend a third day of deposition. The Court therefore finds that the motion to compel deposition should be granted to give force and effect to that agreement.

Sanctions

Defendants request sanctions against Plaintiff and her counsel, Michael J. Freiman, in the amount of $15,628.38. This amount is based on 12 hours of attorney time at $625 per hour, including time spent meeting and conferring with Plaintiff’s counsel, as well as drafting the motion, plus $8,128.38 in travel and lodging expenses. (May Decl. ¶¶11-12.) Attorney time spent meeting and conferring with the opposing party does not, in the Court’s view, constitute reasonable attorney’s fees in the context of a discovery motion, as those fees would have been incurred even if the parties had resolved the dispute informally. Moreover, considering Defendants’ abject failure to properly meet and confer with the opposing party before bringing this motion, the Court finds the inclusion of time spent “meeting and conferring” to be highly inappropriate. Even if those fees were proper, 12 hours of attorney time is excessive and unreasonably inflated on its face. The Court therefore exercises its discretion to deny the request for sanctions outright. Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970, 989-991.)

Conclusion

Defendants’ Motion to Compel Deposition is GRANTED. Plaintiff is ordered to appear in-person for her deposition at a time and place of Defendants’ choosing within 30 days of this order.

Defendants’ request for sanctions is DENIED.

Motion for Protective Order

            Plaintiff moves for a protective order to either permit Plaintiff to attend her deposition remotely, or to require the individual Defendants to attend Plaintiff’s deposition remotely.

Missing Proof of Service

            Plaintiff’s moving papers are once again unaccompanied by a proof of service. Although Defendants purport to object to the absence of a proof of service, Defendants have substantively responded to this motion within the time required by Code of Civil Procedure section 1005(b) and have not asserted that service was not properly made. However, the Court has previously admonished Plaintiff for the failure to include a proof of service with her papers. (See August 26, 2024 Minute Order.) While the Court will overlook Plaintiff’s omission on this motion, the Court’s patience in this regard is at its limit. Plaintiff is therefore expressly warned that future papers which are not accompanied by a proof of service will not be considered.

Defendants’ Evidentiary Objections

            Defendants object to portions of the Declaration of Lauren Redmond in support of the motion. The Court rules on these objections as followed.

            Objection No. 1: OVERRULED. Failure to attach a proof of service is not a valid objection.

            Objection No. 3: OVERRULED. Plaintiff’s statements do not lack foundation, and the remaining objections go to weight, not admissibility.

            Objection No. 4: OVERRULED. Plaintiff’s statements do not lack foundation, and the remaining objections go to weight, not admissibility.

Legal Standard

            Plaintiff’s notice of motion purports to seek relief under Code of Civil Procedure section 2030.90, a non-existent statute. However, the substance of the motion seeks a protective order regarding a deposition, which is properly brought under Code of Civil Procedure section 2025.420. As Defendants have not objected based on a deficient notice of motion and have centered their opposition on this statute, the Court construes the motion as brought under section 2025.420.

Code of Civil Procedure section 2025.420 authorizes a party, deponent, or any other affected person or entity to move for a protective order. (Code Civ. Proc. § 2025.420(a).) Subdivision (b) authorizes the Court to, for good cause shown, issue a protective order “to protect any party or other natural person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420(b).) A protective order under this section may include, inter alia, an order that the deposition be taken only on certain specified terms and conditions. (Code Civ. Proc. § 2025.420(b)(5).)

Meet and Confer

            Before filing a motion for a protective order, Plaintiff is required to file a declaration stating her efforts to meet and confer with the opposing party to resolve this dispute, showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc. §§ 2016.040; 2025.420(a).)

            Plaintiff has entirely failed to address this requirement, offering nothing to establish any efforts to informally resolve this dispute. Plaintiff has not satisfied her statutory meet-and-confer obligations.

Analysis

            Plaintiff seeks a protective order either permitting her to attend her deposition remotely or to require the individual Defendants, Matthew Floit and Andrew Ludwick, to attend her deposition remotely, rather than in person. Plaintiff contends that, in light of her anticipated discussion of her medical and emotional history, examination of those matters in close physical proximity to the individual Defendants will cause her severe embarrassment and anxiety. (Declaration of Lauren Redmond ISO Mot. ¶¶ 4-6.)

            Defendants vehemently oppose Plaintiff’s motion but offer no relevant and permissible authority precluding the relief she seeks. Defendants argue that the individual Defendants have a right to attend depositions as a component of their due process rights. (See Willoughby v. Superior Court (1985) 172 Cal.App.3d 890, 892 [excluding party from deposition “would significantly and unreasonably impair trial counsel’s ability to effectively represent his client.”] However, that right is not at issue on this motion, as Plaintiff does not seek to exclude the individual Defendants from attending the deposition. In fact, Defendants largely fail to reckon with the actual relief sought on this motion to either permit Plaintiff’s remote appearance or to require the Defendants’ remote appearance, except to cite an unpublished 2019 Court of Appeal opinion, Jensen v. Superior Court (Cal. Ct. App. Oct. 3, 2019) Case No. B295875, 2019 WL 4874726, which purportedly required a trial court to permit a party’s in-person attendance. As counsel for Defendants should know, unpublished authorities may only be cited when relevant for the purposes of the doctrines of law of the case, res judicata, or collateral estoppel, or when relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action. (Cal. Rules of Court Rule 8.1115(b).) Barring those exceptions, unpublished authorities “must not be cited or relied on.” (Id. Rule 8.1115(a).) Even if that authority were citable, the Court would find a 2019 ruling on remote attendance hindering the assistance of counsel to have little relevance in November 2024, where remote attendance of legal proceedings has become routine.

            In the Court’s view, the proposed relief of requiring the individual Defendants to attend Plaintiff’s deposition remotely, rather than in person, is a narrowly tailored solution to facilitate Plaintiff’s in-person deposition, as ordered supra, while mitigating the risk of undue embarrassment to Plaintiff. The Court therefore finds good cause to grant the protective order requested.

Conclusion

Plaintiff’s Motion for a Protective Order is GRANTED. Individual Defendants Matthew Floit and Andrew Ludwick may attend Plaintiff’s in-person deposition by remote means only.

CONCLUSION:

Defendant’s Motion to Compel Deposition is GRANTED. Plaintiff is ordered to appear in-person for her deposition at a time and place of Defendants’ choosing within 30 days of this order.

Defendants’ request for sanctions is DENIED.

Plaintiff’s Motion for a Protective Order is GRANTED. Individual Defendants Matthew Floit and Andrew Ludwick may attend Plaintiff’s in-person deposition by remote means only.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  November 27, 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.