Judge: Thomas D. Long, Case: 20STCV34617, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV34617    Hearing Date: August 10, 2022    Dept: 48






















      CASE NO.: 20STCV34617




Dept. 48

8:30 a.m.

August 10, 2022


On September 10, 2020, Plaintiff Bianca Murphy filed this action against Defendants Curtis Sand & Gravel and Ben Curtis, alleging wage and hour violations, failure to maintain and provide records, unfair competition, breach of contract, retaliation, wrongful termination, harassment, and gender discrimination.  On May 3, 2021, Defendants filed a cross-complaint alleging breach of duty of loyalty and conversion.

On June 2, 2022, the parties participated in an Informal Discovery Conference regarding other issues, and the Court stated, “If a dispute arises about the deposition of Kathy Husain, the parties do not need to participate in an IDC.”  Husain is an Officer and Secretary of Defendants.  (Hoang Decl., Ex. B.)

After an unsuccessful June 7, 2022 mandatory settlement conference, Plaintiff noticed Husain’s deposition for June 21, 2022.  (Hoang Decl. ¶¶ 5-6.)  On June 20, 2022 defense counsel stated he would be moving for a protective order and Husain would not be appearing for her deposition the next day.  (Hoang Decl. ¶ 7 & Ex. E.)  No such protective order was filed.

On June 24, 2022, Plaintiff filed this motion to compel attendance and testimony at the deposition of Kathy Husain.

On July 26, 2022, Plaintiff filed a first amended complaint, adding allegations regarding illegal recording of confidential communications.

When an officer or director of a party fails to appear for a properly noticed deposition and does not serve a valid objection, the party seeking the deposition may move for an order compelling attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).)  Husain did not appear for her June 21, 2022 deposition and did not move for a protective order.

Defendants argue any testimony from Husain would be unnecessary and unreasonably cumulative following the July 21, 2022 deposition of Ben Curtis, “[b]ased upon the Court’s ruling concerning Ben Curtis’ deposition and the limited scope of permitted examination contained therein, and the fact that Mr. Curtis has already testified concerning this limited scope.”  (Opposition at p. 3.)  Defendants rely on the Court’s July 5, 2022 order granting in part Plaintiff’s motion to compel Curtis’s deposition.  That motion sought to compel Curtis to answer questions about the sale of his business, the status of the business, and the distribution of funds from the sale of the business.  The Court identified the limited areas that were made discoverable by the pleadings, and the Court stated that questions about the company’s financial condition are not permissible until the punitive phase of the trial.  The Court did not rule that these were the only topics on which any witness could be deposed.

The deposition subpoena for Husain does not identify the topics of the deposition.  (See Hoang Decl., Ex. C.)  Plaintiff asserts the deposition will “ascertain [Husain’s] knowledge regarding facts related to the Plaintiff’s claims, i.e., knowledge of harassment by defendant Ben Curtis, Plaintiff’s contract and wage and hour claims, etc.”  (Reply at pp. 2-3.)  These topics are relevant to the allegations in the pleadings and do not appear to seek prohibited information about the company’s financial condition.  As Plaintiff notes (Reply at p. 3), Defendants may object to any inappropriate questioning.

Defendants also argue that “[t]here is nothing before this Court indicating that the deposition actually commenced and that neither Kathy Husain or her counsel failed and refused to appear for said deposition,” and “there is really nothing at this juncture for the Court to compel.”  (Opposition at p. 5)  It is undisputed that Husain was personally served with the deposition notice and subpoena on June 9, 2022.  (See Hoang Decl., Ex. D.)  Defendants cite no authority requiring Plaintiff to incur the expenses of hiring a court reporter to appear at the deposition location in order to prepare a formal certificate of non-appearance after Defendants’ counsel already indicated that Husain would not be appearing.  (See Opposition at p. 5.)  And Husain did not proceed with the noticed deposition or serve a valid objection under section 2025.410.  (See Code Civ. Proc., § 2025.450, subd. (a).)

Defendants’ counsel provides a series of emails between him and Plaintiff’s counsel, which he contends “show that we were meeting and conferring before the date scheduled for deposition, on the date set for deposition and beyond the date set for deposition.”  (David Decl., Ex. A.)  On June 20, 2022 at 3:29 p.m., Defendants’ counsel stated, “Ms. Husain will not be appearing for her deposition tomorrow, June 21, 2022,” and he indicated his intention to move for a protective order concerning the deposition.  At 4:22 p.m., Plaintiff’s counsel replied to Defendants’ counsel’s email, stating he was available for a call the next morning to discuss the depositions.  Defendants’ counsel confirmed a time for the call.  The next email is from Plaintiff’s counsel on June 22, 2022, requesting a call to follow up on their conversation.  On June 23, 2022, Plaintiff’s counsel sent an email detailing the discussion, which included the topic of a motion to compel and a motion for protective order.  Plaintiff’s counsel stated that “at this point we would want to pursue the deposition and not be limited by interrogatories.”  These emails suggest that counsel met and conferred about Husain’s deposition, but they do not clearly prove the content of those discussions or that, for example, Plaintiff’s counsel was agreeing to a different deposition date or method of discovery as to excuse Husain’s non-appearance.

Accordingly, the motion to compel attendance and testimony at the deposition of Kathy Husain is GRANTED.  The parties are to meet and confer about a new deposition date, to be held in the next 30 days.

The request for sanctions is denied.  On this record, particularly when considering counsel’s communications and the lack of clarity, the Court cannot conclude that Defendants acted without substantial justification.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.


         Dated this 10th day of August 2022





Hon. Thomas D. Long

Judge of the Superior Court