Judge Thomas D. Long, Case 22STCV06702 2023-04-18 Tentative Ruling

On February 23, 2022, Plaintiff Sophia Perusset filed this action against Defendants Tutor Time Learning Centers LLC (“Tutor Time”) and Danika King. The Complaint alleges that Plaintiff was employed by Tutor Time, and King was Plaintiff’s “employer, manager, corporate agent, and/or supervisor.” (Complaint ¶¶ 2, 5.)

On March 16, 2023, Plaintiff filed a motion to compel King’s deposition with production of documents, including a request for sanctions.

On April 12, 2023, Plaintiff dismissed the first, second, fourth, fifth, sixth, seventh, eighth, and fourteenth causes of action against King. This leaves the third, ninth, tenth, eleventh, twelfth, thirteenth, and fifteenth causes of action still brought against King (claims brought against all defendants).

Under the Court’s First Amended General Order for electronic filing, the table of contents and all attachments, including exhibits, must be bookmarked. (General Order No. 2019-GEN-014-00, at ¶¶ 6(b)-(d); California Rules of Court, rule 3.1110(f)(4).) Additionally, each accompanying document must be filed as a separate document. (General Order No. 2019-GEN-014-00, at ¶ 6(f).) Plaintiff’s motion does not comply with these requirements. Plaintiff’s single document consists of the motion, counsel’s declaration, and exhibits. The document also does not contain any bookmarks, making it difficult to navigate the combined 98 pages of the motion, declaration, and exhibits.

Plaintiff’s disregard of the procedural rules is not new. If Plaintiff continues to disregard the rules and electronically file noncompliant documents, the Court may strike the filings or issue sanctions.

If a party to the action fails to appear for or proceed with an examination or production of documents without making a valid objection under Section 2025.410, the party noticing the deposition may move to compel the deponent’s attendance, testimony, or production. (Code Civ. Proc., § 2025.450, subd. (a).) Section 2025.410 provides for written objections to a deposition notice “that does not comply with Article 2 (commencing with Section 2025.210).” (Code Civ. Proc., § 2025.410., subd. (a).)

On September 6, 2022, Plaintiff noticed King’s deposition individually, for a deposition on October 3, 2022. (Motion, Ex. 1.) Plaintiff also requested that 62 categories of documents be produced at the deposition.

On January 31, 2023, Plaintiff served a First Amended Notice of Deposition for a remote deposition on February 15, 2023. (Motion, Ex. 3.) Plaintiff also requested that 63 categories of documents be produced at the deposition.

On February 10, 2023, King timely filed objections to the First Amended Notice of Deposition. (Motion, Ex. 4.) Plaintiff cites no other evidence before Plaintiff’s counsel’s March 8, 2023 request for deposition dates before filing a motion to compel. (Roven Decl. ¶ 2(a).)

King’s objections to the deposition notice were not valid objections under Code of Civil Procedure section 2025.410.

Section 2025.410’s provision for objections based on non-compliance with Article 2 does not include objections based on unilaterally set dates or the unavailability of witnesses or counsel.

King’s objection that the notice is “vague, ambiguous, overbroad, burdensome and oppressive and thereby irrelevant” is arguably within the scope of a defective notice under Code of Civil Procedure section 2025.220, subdivision (a)(4).) However, the materials to be produced are specified with reasonable particularity, as demonstrated by King’s substantive responses to most of the categories.

King also objected on the grounds that Plaintiff erroneously served a First Amended Notice of Deposition when her counsel did not receive an initial notice. This objection is overruled because the caption is irrelevant to the merits and substance of the notice. This is the kind of pedantry that the Court encourages the parties to avoid.

King’s objection based on privilege is overruled to the extent it is an objection to the entire taking of a deposition; King’s counsel may object to specific questions and must produce a privilege log for any privileged documents that are responsive to the requested categories.

King’s timeliness objection under Code of Civil Procedure section 2025.270, subdivision (c) is also overruled. The deposition notice does not appear to request production of personal records of a consumer or employment records of an employee, other than those of Plaintiff.

King argues that she is on protected medical leave until mid-June 2023. (Opposition at pp. 3, 6-8.) However, King is being sued and deposed as an individual defendant, not as an employee, person most knowledgeable, or other representative of Tutor Time. King cites no authority preventing her individual deposition during an employment leave. King’s citation to the unpublished and non-precedential order compelling a non-party’s deposition as an employee witness in Lawrence v. Vons Cos., 2022 Cal. Super. LEXIS 18087 (Opposition at p. 7) is distinguishable on those facts.

Accordingly, because King did not make a valid objection under Section 2025.410, Plaintiff’s motion is granted. (See Code Civ. Proc., § 2025.450, subd. (a).)

C. Danika King Must Provide Some Amended Responses to the Document Requests.

With the First Amended Notice of Deposition, Plaintiff requested production of 63 categories of documents at the deposition. Plaintiff moves to compel production of documents for Requests Nos. 1-13, 15-17, 19, 21-31, 36-39, 42, 44-47, 49, 51-54, 57, 59-63.

For most categories where King responded that the documents are not in her possession, custody, or control, King also referred Plaintiff to documents produced by Tutor Time, particularly identifying certain Requests For Production or Bates-stamped page numbers. (Request Nos. 1-13, 15-16, 19, 21-25, 31, 63.) These are code-compliant responses. (See Code Civ. Proc., § 2031.230.)

Request No. 17 seeks “Any and all witness statements YOU or YOUR representatives have obtained with regards to PLAINTIFFS’ COMPLAINT.” King objected, then responded, “After a diligent search and reasonable inquiry, Defendant is unable to comply with this request as such documents are not in this Defendant’s possession, custody or control.” Request Nos. 26-31, 36-39, 42, 44-47, 49, 51-54, 57, 59-62 seek documents in support of certain affirmative defenses. King objected on the grounds that the requests are overbroad; unduly burdensome; oppressive; harassing; seek private, confidential and/or proprietary information of her business; call for a legal conclusion; or seek overbroad and non-targeted discovery of ESI that is unduly burdensome and costly to reproduce.

These responses to Request Nos. 17, 26-31, 36-39, 42, 44-47, 49, 51-54, 57, 59-62 may be not code-compliant or consist of objections only, but the request to compel further responses or production is premature. The First Amended Notice of Deposition “requests the following documents to be produced at deposition” (see Motion, Ex. 3 at p. 2), a deposition that has not yet occurred. Nevertheless, the Court overrules the objections and orders that King provide code-compliant responses, without objections (other than those for privilege or private, confidential and/or proprietary information, for which King must produce a privilege log), to Request Nos. 17, 26-31, 36-39, 42, 44-47, 49, 51-54, 57, 59-62 at the time of her deposition.

Plaintiff requests sanctions of $12,810.00, consisting of filing fees and attorney fees calculated at $850/hour. (Motion at pp. 7-8; Roven Decl. ¶¶ 3-4.)

If a motion to compel deposition is granted, the Court must impose sanctions unless the deponent acted with substantial justification or when other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

In March 2023, Plaintiff’s counsel was informed that King’s unavailability was due to her pregnancy disability leave. (Roven Decl. ¶ 2(c).) Plaintiff’s counsel responded, “As a father of three young children, I know that it’s really during labor that she won’t be able to submit to deposition. You reached out to her on one occasion? When was this? You are her attorney, not just Tutor Time’s attorney. We really need to get this deposition going now. This is a further meet and confer effort.” (Roven Decl. ¶ 2(d).)

King’s counsel responded, “Jonny, I’m delighted that your wife had such easy pregnancies and deliveries and would have been able to give a deposition within days of delivery, when most of us were completely sleep deprived. As someone who was on bed rest for a pregnancy, and in and out of the hospital 4 times before delivering, I can assure you it’s not always that easy, and sometimes pregnancy disability leave begins prior to delivery. Moreover, given the demands of a newborn and time needed to recover from delivery, there’s a reason the State offers 6 weeks minimum disability leave after a baby is born, and more depending on the circumstances. . . . [A]s a single mother with a newborn only a few days old, [King] was not in a position to discuss dates for her deposition. We have previously explained that Ms. King could be available for deposition in mid-June . . . .” (Roven Decl. ¶ 2(f).) King’s counsel was willing to stipulate to a continuance of trial and all related dates to allow Plaintiff time to depose King and prepare an opposition to the pending summary judgment motion, or to have King’s deposition taken by interrogatories. (Roven Decl. ¶ 2(f).)

Plaintiff’s counsel responded, “Counsel, I have three young kids, please don't lecture me on sleep deprivation. I'm sorry to hear you had such a difficult time. It really has nothing to do with your client, nor this litigation. You are not the defendant in this action, therefore it is an entirely different situation. We are not agreeable to a continuance. . . . Her child does not need to be three months old for us to depose her. . . . I have submitted a client to deposition when she had a very young child. The opposing counsel was more accommodating as she did not require an in-person deposition. My client took breaks to tend to her child when needed. We can get it done. A person is not incapacitated with a young child like you portray.” (Roven Decl. ¶ 2(g).) Plaintiff’s counsel offered to take King’s deposition remotely only if Defendants would agree to change Plaintiff’s deposition to a remote deposition; Defendants’ counsel accepted these terms. (Roven Decl. ¶¶ 2(g)-(i).)

When Plaintiff’s counsel further inquired about deposition dates, King’s counsel responded, “Jonny, As I stated on Sunday, Ms. King just gave birth to a child and is currently not in a position to discuss deposition dates. I repeat, there is a reason the State certifies a woman as disabled postdelivery for a minimum of 6 weeks. I will not argue over your opinion about the medical severity of childbirth on a woman, but I find it surprising that you are not sympathetic to a person who is currently legally disabled and on disability leave. Nor are your emails day after day, knowing full well nothing has changed in the past two days, good faith meet and confers.” (Roven Decl. ¶ 2(l).) King’s counsel reiterated a willingness to stipulate to a continuance to allow Plaintiff to depose King and oppose the summary judgment motion.

These exchanges and other correspondence do not reflect an attempt to meet and confer in good faith under the circumstances of King’s unavailability, especially in light of Defendants’ counsel’s willingness to stipulate to continue the trial and related dates. King’s opposition was substantially justified and the imposition of a sanction would be unjust.

The request to compel King’s attendance and production of documents at deposition is granted. King is ordered to appear for a remote deposition within 45 days. She must also provide verified, code-compliant responses to the document requests as set forth above.

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.

Hon. Thomas D. Long

Judge of the Superior Court