Judge: Yolanda Orozco, Case: 19STCV33158, Date: 2022-12-05 Tentative Ruling

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Case Number: 19STCV33158    Hearing Date: December 5, 2022    Dept: 31

MOTION TO COMPEL Art Hernandez to

Answer Deposition Questions IS GRANTEd 

Background 

In this action, several sheriff’s deputies (“Plaintiffs”) who were formerly assigned to the East L.A. station allege that they were pressured to quit their jobs or leave the station and that they were otherwise harassed by other deputies who are alleged members of a gang known as the Banditos.  

The operative Sixth Amended Complaint alleges discrimination, harassment, retaliation, and related claims against Defendant County of Los Angeles (“County”) and allege assault, battery, and other claims against Individual Defendants Rafael “Rene” Munoz (“Munoz”), Gregory Rodriguez (“Rodriguez”), David Silverio (“Silverio”), and Michael Hernandez (“MH”) (collectively “Individual Defendants”).  

On October 10, 2022, the County moved to Compel Art Hernandez (“Plaintiff”) to Answer Deposition Questions. 

Plaintiff filed opposition papers on November 18, 2022. 

The County filed a reply on November 28, 2022. 

Legal Standard 

Proper service of notice of deposition compels the deponent to appear, to testify, and to produce documents if requested. (Code Civ. Proc., § 2025.280 subd. (b).)¿  

When a party is served with a deposition subpoena but fails to attend the deposition or refuses to be sworn as a witness, the party that served the subpoena may move for an order directing compliance with the subpoena and imposing other terms or conditions as the judge considers appropriate. (Code Civ. Proc., § 2025.480 subd. (a).) However, the subpoenaing party must seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480(b); see Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)  

EVIDENTIARY OBJECTIONS  

Defendant submits Evidentiary Objections to the Declaration of Vincent Miller filed in support of Plaintiff’s Opposition to the Motion to Compel Art Hernandez to Answer Deposition Questions. 

Defendant’s objections are OVERRULED in their entirety. 

Discussion 

Plaintiff had testified at his deposition that he personally witnessed an alleged member of the Banditos gang commit a crime while on-duty. (Depo. of Art Hernandez, Ex. 1 at 312:7-14.) On the advice of Plaintiff’s counsel, Plaintiff refused to identify the person involved or the criminal act. 

The County asserts that Plaintiff’s refusal to identify the person or the crime has hindered Defendant’s efforts to conduct discovery on the alleged incident or refute the claims. The County also alleges that the information is needed because the County is obligated to investigate allegations of criminal misconduct involving the Los Angeles Sheriff’s Department deputies and asses if criminal misconduct took place. For this reason, the County moves to compel Plaintiff to answer questions regarding the alleged incident. 

The parties have tried to meet and confer on the issue, but the resolution has been reached. (Schrader Decl. ¶ 13-17, Ex. A, B.) 

Plaintiff alleges that he is unwilling to answer questions regarding the incident because a gang leader of the Banditos, Rafael Munoz, has watched all the depositions and has joined with other individual defendants in an effort to intimidate witnesses. Plaintiff also claims he fears retaliation and that home of one of the plaintiff’s parents was “shot into.” Plaintiff has not submitted a declaration attesting to these incidents or his fears of retaliation. 

Out of concern for Plaintiff’s safety and that of his family, Plaintiff proposes that the County do an “attorney’s eyes only” Deposition (AEO), as was done with other Plaintiffs or alternatively, submit a declaration describing the content of his conversations with the FBI. 

The County has refused on the basis that if the misconduct took place while on-duty, the County has an obligation to investigate and potentially discipline those involved. (Schrader Decl. ¶ 4, Ex. B.) An AEO designation would prevent the County from investigating the complaints and taking appropriate action. 

The County stated that it had communicated with Plaintiff’s counsel about Plaintiff submitting a declaration prior to Plaintiff’s deposition and that it would consider the declaration if a draft of the declaration was provided. (Schrader Supp. Decl. ¶¶ 3-5, Ex. C.) The County followed up and asserts that as of the time of the filing of its reply, no declaration has been provided for the County to consider. (Id. ¶ 5, Ex. C.) 

Plaintiff has admitted that he intends to testify about the incident at trial. More importantly, Plaintiff has also not alleged that the information is privileged and not subject to discovery. Allowing Plaintiff to testify at trial about the incident, without allowing Plaintiff to be deposed would subject would expose the County to unwarranted surprise. (A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566.) Moreover, Plaintiff has failed to address Defendant’s obligations to investigate the incident and how the AEO designation would conflict with Defendant’s obligations. 

Plaintiff has also failed to submit a declaration attesting to the harassment and retaliation he has experienced or observed to substantiate his fears about answering questions about the incident. More importantly, Plaintiff fails to cite any legal authority that would support an AEO deposition designation on information that is not privileged or confidential. 

The Court GRANTS Defendant’s Motion to Compel Plaintiff to Answer Deposition Questions. 

The Court DECLINES Plaintiff’s request to continue the hearing to allow Plaintiff time to draft a declaration regarding his conversations with the FBI because Plaintiff has already had the time and opportunity to draft the declaration for the County’s consideration and has failed to do so. 

Conclusion 

Defendant’s Motion to Compel Plaintiff Art Hernandez to Answer Deposition Questions is GRANTED. 

moving party to give notice.