Judge: Thomas D. Long, Case: 20STCV34617, Date: 2022-08-10 Tentative Ruling
Case Number: 20STCV34617 Hearing Date: August 10, 2022 Dept: 48
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
BIANCA MURPHY, Plaintiff, vs. CURTIS SAND & GRAVEL, et al., Defendant. |
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[TENTATIVE] ORDER GRANTING MOTION TO COMPEL
ATTENDANCE AND TESTIMONY AT DEPOSITION OF KATHY HUSAIN; DENYING REQUEST FOR
ORDER AWARDING MONETARY SANCTIONS 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
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Hon. Thomas D. Long Judge of the Superior
Court |