Judge: Yolanda Orozco, Case: 19STCV29112, Date: 2023-01-05 Tentative Ruling
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Case Number: 19STCV29112 Hearing Date: January 5, 2023 Dept: 31
MOTION TO COMPEL PLAINTIFF TO ATTEND
DEPOSITION IS GRANTED
Background
On August 15, 2019, Plaintiff Glenda Johnson filed the instant action against Defendants Santa Monica Community College District (the “District”); Jeremy Newman; and Does 1 through 10. On February 25, 2020, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:
1) Sexual Harassment in Violation of FEHA (Violation of Gov.
Code § 12940(j));
2) Sexual Discrimination in Violation of FEHA (Violation of
Gov. Code § 12940(a)) (against the District);
3) Sexual Battery (against Newman);
4) Disability Discrimination in Violation of FEHA (Violation
of Gov. Code § 12940(a)) (against the District);
5) Retaliation in Violation of FEHA (Violation of Gov. Code §
12940(h)) (against the District);
6) Retaliation in Violation of Public Policy (against the
District);
7) Whistleblower Retaliation (Violation of Labor Code §
1102.5) (against the District);
8) Failure to Prevent Discrimination and Sexual Harassment
(Violation of Gov. Code § 12940(k)) (against the District);
9) Hostile Work Environment and Harassment;
10) Failure to Accommodate (against the District);
11) Failure to Engage in the Interactive Process (against the
District);
12) Negligent Supervision and Retention (against the District);
13) Intentional Infliction of Emotional Distress (against
Newman); and
14) Negligent Infliction of Emotional Distress (against Newman).
On
November 18, 2022, the District moved to Compel Plaintiff Glenda Johnson to
Attend a Deposition.
Plaintiff
filed opposing papers on December 1, 2022. The District filed a reply on
December 05, 2022.
Legal Standard
Code of Civil Procedure section 2025.450, section (a)
states in the relevant part:¿¿¿
¿¿
“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, subd. (a).)
The motion must also “set forth specific facts showing good
cause justifying the production for inspection of any document, electronically
stored information, or tangible thing described in the deposition notice” and
“be accompanied by a meet and confer declaration under Section 2016.040.” (Code
Civ. Proc., § 2025.450, subds. (b)(1), (2).)¿¿¿
Discussion
Motion
to Compel Deposition
Defendant Santa Monica Community College District (the “District”) asserts that it has tried for months to obtain a second deposition session of Plaintiff and a Mental Examination. (Dumont Decl. ¶ 4.) For this reason, Defendants noticed Plaintiff’s deposition date as November 10, 2022. (Id. ¶ 5, Ex. A.) At 4:00 pm, three days before the deposition, Plaintiff emailed an Objection to the Deposition. (Id. ¶ 6, Ex. B.) The District tried to obtain a new date for the deposition, but with no response, the District obtained a Certificate of Non-Appearance. (Id. ¶ 7, Ex. C.) The District continued its meet and confer efforts but filed this motion when the efforts went unreciprocated. (Id. ¶ 8, Ex. D.)
Although Plaintiff’s initial deposition occurred on July 28,
2021, Plaintiff does not deny that the District is seeking a continuance of the
first deposition rather than a second deposition. (See Code Civ. Proc., §
2025.610) Therefore, this motion is properly sought under section 2025.450.
Plaintiff’s objections to the deposition are based on the fact that the date was unilaterally noticed by the District and Plaintiff objected to the 37 Requests for Production of Documents as unduly burdensome. A valid objection under 2025.410 pertains to the errors or irregularities in the deposition notice and must be made three calendar days before the deposition date. (Code Civ. Proc., § 2025.410 subd. (b).) Plaintiff’s objections to the Deposition Notice are not valid objections under section 2025.410. Moreover, written objections to the deposition notice do not stay the taking of the deposition, and the party objecting to the deposition taking place must move for a motion to quash the deposition notice and stay the taking of the deposition. (Code Civ. Proc., § 2025.410 subd. (c).) Furthermore, section 2025.410 requires that any objection be served by personal service. (Code Civ. Proc., § 2025.410 subd. (b).) Here, Plaintiff emailed the objections three days before the deposition date, therefore service was invalid.
Moreover, although Plaintiff has finally offered dates for the deposition, they were offered on November 30, 2022, after this Motion was filed. The Court finds that Plaintiff’s argument that the motion was not timely served because Plaintiff’s counsel’s office is only open Tuesdays, is without merit because Plaintiff offers no evidence that the fact the office is only open on Tuesdays was known to the District. Moreover, the District had also electronically served the motion on Plaintiff. More importantly, Plaintiff has not claimed she was prejudiced by the alleged late notice. When there is a problem with service, the Court may treat an opposition on the merits as a waiver of a defect in notice. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) If Plaintiff filed an opposition on the merits and does not show actual prejudice from the late opposition, then the Court may treat this as a waiver of the objection.
Since Plaintiff’s objections were invalid under section 2025.410, the Motion to Compel is GRANTED.
Sanctions
The District requested sanctions against Plaintiff Glenda Johnson and her counsel of record in the amount of $800.00. (Dumont Decl. ¶¶ 9, 10.) Plaintiff is correct that the District’s Notice of Motion does not contain a request for sanctions nor the names of the parties against whom sanctions are requested.
“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
(Code Civ. Proc., § 2023.040.)
Prior notice of imposition of sanctions is not only a statutory requirement but also mandated by the due process clause of the state and federal conditions. (See In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1077; see also Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320.)
Although sanctions under section 2025.450 are mandatory, sanctions will not be imposed if “the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450 subd. (g)(1).)
Since the District failed to provide notice of sanctions under section 2023.040, the Court finds that imposing sanctions is unjust and therefore DENIES the District’s request for sanctions.
Conclusion
Defendant Santa Monica
Community College District’s Motion to Compel Plaintiff to Attend Her
Deposition is GRANTED. Plaintiff is Ordered to appear for her deposition within
30 days of this Order upon such date on which the parties agree.
moving party to give notice.