Judge: Yolanda Orozco, Case: 21STCV00552, Date: 2022-09-14 Tentative Ruling
Case Number: 21STCV00552 Hearing Date: September 14, 2022 Dept: 31
I. MOTION FOR A PROTECTIVE ORDER IS DENIED
II. MOTION FOR TERMINATING SANCTIONS IS GRANTED, IN PART
Background
On January 7, 2021, Plaintiff Nicole Hermanson filed a Complaint against Pine Pharmaceuticals LLC, Jim Derrenbacher, Alfonse Muto, Alfonse J. Muto, and Global Edge Recruiting Associates LLC (collectively, “Defendants”).
On May 16, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants.¿ Plaintiff’s SACC alleges the following causes of action:¿
1. Breach of Express Written Contract;¿
2. Breach of Implied Contract;¿
3. Breach of the Covenant of Good Faith and Fair Dealing;¿
4. Wrongful Termination in Violation of Public Policy;¿
5. Discrimination;¿
6. Retaliation;¿
7. Harassment;¿
8. Violation of Cal. Labor Code §1101;¿
9. Violation of Cal. Labor Code §1102;¿
10. Violation of Cal. Labor Code §1102.5;¿
11. Violation of Cal. Labor Code §1198.5;¿
12. Fraudulent Inducement;¿
13. Intentional Infliction of Emotional Distress (“IIED”);¿
14. Violation of Business & Professions Code §17200;¿
15. Negligence; and¿
16. Violation of CLRA.¿
On August 04, 2022, Plaintiff moved for a Stay and Protective Order Re: Plaintiff’s Deposition and Re: for Sanctions.
On August 05, 2022, Defendants Pine filed a Motion for Terminating Sanctions or in the alternative Evidentiary Sanctions and a Request for Monetary Sanctions.
On August 31, 2022, Plaintiff filed Opposing papers to the Motion for Terminating Sanctions. Pine also filed Opposing papers to Plaintiff’s Motion for Stay and Protective Order.
On September 07, 2022, Defendants filed a Reply to the Motion for Terminating Sanctions and Plaintiff filed a Reply to the Motion for a Protective Order.
I. MOTION FOR A PROTECTIVE ORDER
Protective Order – Legal Standard
“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)
Discussion
Plaintiff requests the Court enter a Protective Order precluding Defendants from conducting an in-person deposition of Plaintiff, limiting Defendants’ initial discovery to Plaintiff to one set of Form interrogatories - Employment Law, and one set of twenty (20) Requests for Production of Document and ordering that plaintiff will sit for a Zoom deposition within the next 60 days. After Plaintiff’s deposition occurs, Defendants shall meet and confer as to a reasonable set of follow-up discovery if needed and Defendant motions to compel be withdrawn. Plaintiff asserts that a Protective Order as suggested will eliminate the need for a discovery referee. Plaintiff’s Motion for a Protective Order includes a declaration by Plaintiff attesting to her economic inability to pay a pro rata share of Discovery Referee fees.
In addition, Plaintiff requests a hearing pursuant to Code of Civil Procedure section 639 to assess the necessity of appointing a discovery referee.
With respect to protective orders generally, the burden of showing good cause is ordinarily on the party seeking the protective order. (Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961) 195 Cal.App.2d 861, 866-867.) The granting of a protective order is within the discretion of the trial court. (Id.) The granting or denial of a protective order is reviewed for abuse of discretion. (See Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.) When the record shows facts on which the trial court exercised its discretion, this exercise will not be disturbed on appeal. (Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578.)
Plaintiff notes that Defendants’ previous deposition notices were for remote depositions and this Court denied Defendants’ request that Plaintiff’s deposition proceed in person in the Court’s jury room. Plaintiff also points out that under Code of Civil Procedure (CCP) section 2025.310, Plaintiff is permitted to appear remotely.
Plaintiff acknowledges that on July 8, 2022, this Court granted Defendants’ motion to compel Plaintiff’s deposition but denied the request that the deposition take place in person in the jury room of Department 31. The Court notes that the Defendants’ motion to compel was granted after Plaintiff had objected to the two previous notices of deposition.
After Defendants’ motion to compel was granted, Defendants sent a notice of taking Plaintiff’s deposition, unilaterally set for August 03, 2022, after Plaintiff failed to provide alternative dates. (Rand-Lewis Ex. A.) On July 19, 2022, Plaintiff’s counsel finally responded and asserted that she was unavailable on that date because she had two depositions scheduled for August 3. (See email attached as Ex. B to Rand-Lewis Decl.) Plaintiff’s counsel proposed August 5, 2022 as the new deposition date and stated that Plaintiff would appear remotely and requested defense counsel provide all zoom information. (Id.) Defense counsel responded that she was unavailable on August 5, 2022 and asserted that the deposition would take place in person, and that “This is not negotiable.” (See response email of Kamil Canale attached as Exhibit C to Rand-Lewis Decl.)
The Court notes that in the response email Defense counsel explained that the August 5 date was chosen because Plaintiff’s counsel failed to provide 3 or 4 dates regarding Plaintiff’s availability. (Rand-Lewis Decl. Ex. C.) Defense counsel requested Plaintiff’s counsel provide 2 or 3 alternative dates and that August 3, 2022, deposition date would remain unless another date was agreed upon.
Plaintiff’s counsel asserts that she was willing to meet and confer further with Defense counsel on another deposition date but that she was opposed to the deposition being in person and that she had advised Defense counsel to propound more limited discovery on Plaintiff. (Rand-Lewis Decl. Ex. D.) The Court notes the email was sent July 22, 2022, and Plaintiff’s counsel did not provide alternative dates for the deposition as requested by Defendants. Plaintiff remains unemployed and Plaintiff’s counsel has not provided any explanation as to why she has been unable to provide alternative dates for her deposition.
In granting Defendants’ motion to compel Plaintiff’s deposition and the evidence requested, the Court noted that Plaintiff’s counsel was required to specifically object to the evidence sought and bore the burden of showing why the evidence requested was burdensome or oppressive in objecting to the discovery. (See Min. Or. 07/08/22.) Plaintiff’s counsel’s assertion that Defendants’ should serve more limited discovery does not justify Plaintiff’s refusal to comply with the discovery requested when Defendants have shown that the evidence sought is relevant and discoverable. (See id.) For this reason, the Court found Plaintiff’s boilerplate general objections to be without merit. (Id.)
From the evidence provided in Plaintiff’s motion for a protective order, the Court notes that Defense counsel seeks an in-person deposition because it is more efficient and per the Court’s Order, Plaintiff needs to produce certain documents. In addition, Plaintiff demanded that she be provided hard copies of the documents used in the deposition. (Rand-Lewis Ex. E, Min. Or. 07/08/22) There is no evidence that Plaintiff’s counsel tried timely provide alternative dates for the deposition. Moreover, Plaintiff has also failed to state good cause as to why the deposition should not take place in person.
While CCP section 2025.310, gives Plaintiff the option of a remote deposition, it is not a right. Defendants addressed Plaintiff’s COVID-19 concerns and agreed to allow Plaintiff to obtain hard copies of the documents. (Rand-Lewis Decl. Ex. I.) Moreover, on July 28, 2022, Defense counsel made concessions to a zoom deposition with the following conditions:
1. All persons present, including attorneys, will be on camera at all times.
2. The responsive documents are produced 24 hours in advance so that can be uploaded for use as exhibits. Defense counsel would send a messenger to Plaintiff’s office to pick up the exhibits. (Rand-Lewis Ex. I.)
Any allegations by Plaintiff that the August 3, 2022 deposition date was objectionable was due to Plaintiff’s counsel’s failure to provide alternative deposition dates. Defense counsel sent an email on July 8, 2022, the same day this Court Ordered Plaintiff’s deposition be taken in 30 days, requesting Plaintiff’s counsel submit dates for Plaintiff’s deposition. (Opp. at 4:4-5.) Plaintiff’s counsel finally responded on July 19, 2022 to Defendants’ meet and confer efforts and provided one alternative date, only after Defendants had already noticed the August 3, 2022, deposition date. (Rand-Lewis Ex. B.) Defendants asserted that the August 3, 2022 deposition date would only be moved once Plaintiff confirmed an alternative date, which Plaintiff failed to do (Rand-Lewis Decl. Ex. C, G.)
Plaintiff’s counsel asserts that Defendants’ demand for an in-person deposition is designed to cause Plaintiff unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Yet Plaintiff provided no evidence to support this contention, other than Defendants’ meet and confer emails and demand for an in-person deposition. Defendants’ request for an in-person deposition or accommodations for a remote deposition are reasonable and tailored to meet Plaintiff’s request for hard copies of the documents. Furthermore, Plaintiff’s request for limited discovery is also without merit and contrary to this Court’s prior Order.
Accordingly, Plaintiff has failed to show good cause as to why this Court should issue a Protective Order. (See Beverly Hills Nat. Bank & Trust Co., supra, (1961) at 866-867.) Plaintiff’s request for a Protective Order is DENIED.
Plaintiff also requests $4,118.91 in sanctions be paid by Defendants and their counsel of record. This request for sanctions is DENIED.
II. MOTION FOR TERMINATING SANCTIONS
Terminating Sanctions – Legal Standard
Code of Civ. Pro (CCP) section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP section 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (id. § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (id., subd. (g)).
Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.)
In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance. (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021.) Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with Court orders regarding discovery.
Discussion
Defendants move for an order for terminating sanctions, specifically the dismissal of Plaintiff’s Second Amended Complaint (SAC) with prejudice against all Defendants because Plaintiff is in violation of a Court order and failed and refused to submit to a Court-ordered deposition.
In the alternative, Defendants request the Court issue an order precluding Plaintiff from introducing and offering any evidence—including witness testimony, the documentary evidence as requested in Plaintiff’s Notice of Court-Ordered Deposition and Request for Production of Documents, and any other evidence—relating to damages and liability in this case on the basis that Plaintiff has refused to appear at her properly noticed deposition and has failed to produce documents pursuant to a concurrent Request for Production of Documents in violation of this Court’s July 8, 2022 Order.
Defendants further request that the Court impose a monetary sanction in the amount of $8,811.00 against Plaintiff and her counsel, Suzanne Rand-Lewis, as reasonable attorney’s fees and costs incurred by Defendants in meeting and conferring, preparing for, and attending Plaintiff’s deposition and preparing, filing, and appearing at the instant motion and costs of the Court Reporter and Certificate of Non-Appearance due to Plaintiff’s failure to appear at her duly noticed deposition.
As a last alternative, Defendants argue that Plaintiff should be ordered to appear for deposition and produce documents at defense counsel’s office on a date and time ordered by this Court at the hearing on this matter. And as a last resort, the Court should order the deposition to go forward via Zoom.
In opposition to the motion, Plaintiff asserts that she had until August 8, 2022, to comply with the Court Order compelling Plaintiff’s deposition. Plaintiff alleges that the motion for a Protective Order, filed on August 4, 2022, which was proper under Code of Civil Procedure section 2025.420, complies with this Court’s July 08, 2022, Court Order compelling her deposition. Wrong. Plaintiff was required to sit for her deposition – period.
In granting Defendant’s motion to compel Plaintiff’s deposition, the Court found that Defendants had attempted to take Plaintiff’s deposition since October 06, 2021, and to date, almost an entire year later, no such deposition had taken place. Accordingly, the Court finds that Plaintiff is in violation of this Court July 08, 2022 Court Order.
The July 08, 2022 Court Order in no way forbade Defendants from taking an in-person deposition of Plaintiff. Moreover, in denying Defendant’s request to have this Court oversee the deposition in the jury room, the Court found the request unnecessary and noted:
“The discovery statutes already provide Defendants with an array of motions to ensure compliance with the discovery process. This includes motions to compel, monetary sanctions, terminating sanctions, and appointment of a discovery referee. Defendants should avail themselves of these provisions if it becomes necessary to do so during or after Plaintiff’s deposition. As such, the Court denies Defendants' request that Plaintiff’s deposition be taken in the jury room of Department 31.”
(Min. Or. 07/08/22.)
In granting Defendants’ motion to compel Plaintiff’s deposition, the Court also sanctioned Plaintiff and Plaintiff’s counsel in the amount of $2,475.00. Yet Plaintiff has not complied with the Court Order and only responded to Defendants’ meet and confer efforts on July 19, 2022, by offering only one alternative date for the deposition and demanding that the deposition take place remotely. (Rand-Lewis Decl. Ex. C.) There is no evidence that Plaintiff provided 2 to 3 alternative deposition dates before July 19, 2022, as requested by Defendants, or tried to in other ways to comply with the Court Order. Instead of providing alternative dates for a deposition, Plaintiff chose to file a motion for protective order virtually at the last minute.
The fact this Court is considering appointing a discovery referee does not excuse Plaintiff’s failure to comply with the July 08, 2022 Court Order. Plaintiff also fails to provide a satisfactory justification as to why she and her counsel should not be sanctioned.
Defendants cite the following cases in support of their motion for terminating sanctions:
Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal.App.3rd 481 [Dismissal of plaintiff’s action was appropriate due to the plaintiff’s failure to comply with discovery requests.] However, portions of Lauguna have been disapporved by Garcia v. McCutchen (1997) 16 Cal.4th 469. Garcia v. McCutchen (1997) 16 Cal.4th 469, 478; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1991) 75 Cal.App.4th 86 [terminating sanctions appropriate only after finding plaintiff incorporated a forged contract into their complaint, refused completion of deposition after the forgery came to light, and destroyed the evidence.]; Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 [plaintiff’s action dismissed after plaintiff refused, on self-incrimination grounds, to comply with a discovery order for the production of a tape recording plaintiff made of a conversation with the defendant.]; and Lang v. Hochman (2000) 77 Cal.App.4th 122, [the Appeal Court found that terminating sanctions by striking defendants’ answer and entering default against defendants, and dismissing defendants’ cross-complaint and its complaint in a related case, and denying defendants’ motion for relief from default based on its attorney’s affidavit of fault was not abuse of discretion since defendants had failed to comply with three discovery orders.]
The Court finds that the facts noted in those case are quite egregious which is not yet the case here. Terminating sanctions in the form of dismissal of a party’s complaint or answer is an extreme, drastic sanction and should be used only as a last resort. Nevertheless, the Court is concerned that Plaintiff has not provided any evidence to show that she will appear for deposition and comply with discovery requests in the future. Indeed, a new date for Plaintiff’s deposition has still not been set. Therefore, sanctions are appropriate.
The Court will not entertain a dismissal of Plaintiff’s action at this time for her violation of this Court’s July 8 Order. The Court will again order that Plaintiff sit for her deposition, in person, with proper COVID precautions such as masking by all persons. The deposition shall occur within 20 days unless the parties both agree to another date. If Plaintiff fails to appear and complete her deposition without good cause, terminating sanctions consisting of dismissal of her Second Amended Complaint will be issued.
The Court also finds that sanctions are warranted. Defendants request $8,811.00 in monetary sanctions against Plaintiff and Plaintiff’s counsel for violation of this Court July 08, 2022 Order. (Canale Decl. ¶ 32.) The Court awards a lesser amount of $4,400.00.
Both Parties appear to oppose the appointment of a discovery referee (See Decl. of Kathryn Cana in Opp. To Appt. of Discovery Referee.), yet both parties appear to be stuck in a mode of non-cooperation which extremely overburdens this Court. The Court orders that the discovery motions set on October 7, 14 and 21, 2022 shall be taken off-calendar. The Court orders that the parties meet and confer in an effort to resolve or narrow those motions through the Court’s LA-CourtConnect program by appearing at a Discovery Conference on September 29, 2022, at 9:30 a.m. The Court orders the parties plan to meet and confer for at least one hour at the September 29 session so that all outstanding discovery issues can be discussed, in addition to the referenced motions.
Conclusion
1. Plaintiff’s Motion for a Protective Order is DENIED.
Plaintiff requests for monetary sanctions DENIED.
2. Defendants’ Motion for Terminating Sanctions is GRANTED, IN PART. Plaintiff must appear for deposition within 20 days and any failure by Plaintiff to appear and complete the deposition will result in dismissal of her Second Amended Complaint. Sanctions are imposed on Plaintiff and Plaintiff’s counsel in the amount of $4,400.00.
Defendants to give notice.
The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.