Judge Yolanda Orozco, Case 21STCV05234 2023-05-01 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV05234, Date: 2023-05-01 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV05234 Hearing Date: May 1, 2023 Dept: 31

PROCEEDINGS: 1) MOTION FOR PROTECTIVE ORDER AND ORDER SETTING DISCOVERY SEQUENCE AND SANCTIONS

MOVING PARTY: Plaintiff, JoAnna Elliott

RESP. PARTY: Defendants, Pepperdine University, Wave Enterprises, Inc., Wave Services, Inc., and Wave Property, Inc.

2) MOTION TO COMPEL PLAINTIFF/CROSS-DEFENDANT DEPOSITION

MOVING PARTY: Defendants, Pepperdine University, Wave Enterprises, Inc., Wave Services, Inc., and Wave Property, Inc.

RESP. PARTY: Plaintiff, JoAnna Elliott

(1) MOTION FOR PROTECTIVE ORDER AND ORDER SETTING DISCOVERY SEQUENCE AND SANCTIONS AND (2) MOTION TO COMPEL PLAINTIFF/CROSS-DEFENDANT DEPOSITION

Tentative Ruling

1) Plaintiff’s Motion for a Protective Order and Order Setting Discovery Sequence is DENIED. The Court also DENIES Plaintiff’s and Defendants’ request for sanctions in connection to the Motion for a Protective Order and Order Setting Discovery Sequence.

2) The Court GRANTS Defendants’ Motion to Compel the Deposition of Plaintiff/Cross-Defendant. The Court also GRANTS Defendants’ request for sanctions against Plaintiff in the amount of $1,575.00. The Court DENIES Plaintiff’s request for sanctions.

Background

On February 9, 2021, JoAnna Elliott (“Plaintiff”) initiated the present action against her previous employers, Pepperdine University, Wave Enterprises, Inc., Wave Services, Inc., and Wave Property, Inc. (collectively “Defendants”), alleging she wrongfully terminated on the basis of her gender and disability.

On June 4, 2021, Plaintiff filed the operative First Amended Complaint against Defendants. Plaintiff’s First Amended Complaint alleges the following causes of action: (1) Discrimination in Violation of the FEHA; (2) Hostile Work Environment Harassment in Violation of the FEHA; (3) Retaliation in Violation of the FEHA; (4) Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of the FEHA; (5) Failure to Engage in the Interactive Process in Violation of the FEHA; (6) Failure to Provide a Reasonable Accommodation in Violation of the FEHA; (7) Discrimination and Retaliation for Accommodation Request in Violation of the FEHA; (8) Whistleblower Retaliation in Violation of Labor Code § 1102.5; (9) Whistleblower Retaliation in Violation of Labor Code § 6310; (10) Whistleblower Retaliation in Violation of Labor Code § 6311; (11) Whistleblower Retaliation in Violation of Labor Code § 232.5; (12) Violation of Labor Code § 1197.5 (Equal Pay Violation); (13) Interference/Retaliation with CFRA Leave; (14) Wrongful Termination of Employment in Violation of Public Policy; (15) Intentional Infliction of Emotional Distress; and (16) Negligent Infliction of Emotional Distress.

On January 14, 2022, the Defendants filed a Cross-Complaint alleging (1) Fraud; (2) Breach of Contract; (3) Conversion; (4) Breach of the Duty of Loyalty; and (6) Breach of Fiduciary Duty.

On May 17, 2022, Plaintiff moved for a Protective Order and Order Setting Discovery Sequence and Sanctions.

On October 17, 2022, Defendants filed opposing papers to the Motion for a Protective Order.

Plaintiff filed a reply on October 21, 2022.

On June 29, 2022, Defendants move to Compel the Deposition of Plaintiff/Cross-Defendant JoAnna Elliot.

Plaintiff filed opposing papers to the motion to compel on October 17, 2022.

Defendants filed a reply on October 21, 2022.

Per the parties’ request, the hearing on both motions was continued. (Min. Or. 01/12/23.)

Legal Standard

I. Motion for Protective Order and Discovery Sequence

“[O]n motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc. §2019.020(b).) Generally speaking, “[g]ood cause means a legally sufficient ground or reason for a certain action.” (McCrocklin v. Employment Development Dept. (1984) 156 Cal.App.3d 1067, 1071.) “The concept of good cause should not be enshrined in legal formalism; it calls for a factual exposition of a reasonable ground for the sought order. The good cause may be equated to a good reason for a party's failure to perform that specific requirement from which he seeks to be excused.” (Waters v. Superior Court of Los Angeles County¿(1962) 58 Cal.2d 885, 893.)

Code of Civil Procedure section 2017.020 subdivision (a) provides, as follows: “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Code of Civil Procedure section 2019.030 provides, in pertinent part, as follows:

“(a)¿The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:

(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(b) The court may make these determinations pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

II. Motion to Compel Deposition

Code of Civil Procedure section 2025.450, section (a) provides:¿¿¿¿¿

¿¿¿¿

“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).)¿¿¿¿¿

¿¿¿¿

A motion under Section 2025.450, subdivision (a), must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Dist. Co. v. Superior Court 1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)¿

Evidentiary Objections

Plaintiff objects to information submitted by Defendants in opposition to the Motion for Protective Order and Discovery Sequence because it violates the Mediation Privilege:

1) Defendants’ Opposition: p. 2, lns. 16-20; p. 7, lns. 2-5; and p. 7, lns. 6-17.

2) Declaration of Kaitlyn Chang: ¶¶ 24, 25, and 26, as well as Exhibit 13.

Evidence Code section 1119 subdivision (a) states:

“No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”

Therefore, the Court SUSTAINS Plaintiff’s objections.

Discussion

I. Motion for Protective Order and Discovery Sequence

Plaintiff represents that since it propounded discovery on Defendants in March of 2021, Defendants have failed to comply with their discovery obligations. Defendants dispute this.

Based on Defendants’ conduct, Plaintiff seeks a protective order and discovery sequence ordering that:

1) Depositions be stayed (particularly the Plaintiff’s) until Defendants have complied with all their discovery obligations, including: (i) providing the long promised supplemental responses; (ii) providing all documents requested and relevant to this litigation, (iii) following through with the entry of a protective order, (iv) and providing dates Defendant witnesses first noticed by the Defense;

2) Plaintiff will be deposed after the production of five-defendant witnesses of the Plaintiff’s choosing;

3) An order to show cause hearing as to why Defendant’s answer should not be stricken if they do not comply with the above forthwith;

4) Sanctions be awarded in the amount of $7,160.00 against defendants Pepperdine University, Wave Enterprises, Wave Services, Wave Property, and their counsel, Gordon Rees Scully Mansukhani, jointly and severally, for their lengthy, willful, and calculated misuse of the discovery process.

The parties tried mediation but were unable to resolve their discovery disputes.

Plaintiff represents that the protective order is necessary because Defendants have engaged in gamesmanship by (1) failing to provide a single deposition date for any deponent, (2) objecting to deposition notices served by Plaintiff, and (3) withholding discovery.

The Discovery Act provides Plaintiff with various tools to ensure Defendants comply with Discovery requests, including motions to compel and motions for terminating sanctions. “Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 Cal. App. 4th 216, 221.)

Here, Plaintiff has not filed motions to compel discovery or sought terminating sanctions against Defendants in order to ensure Defendants compliance with discovery requests. Instead, Plaintiff seeks to punish Defendants for their delay and delay discovery by staying her deposition until Defendants comply. It would be premature of the Court to find that Defendants have not complied with their discovery obligations when there is no motion laying out the specifics of each discovery request. Moreover, if Plaintiff wished to compel Defendants to appear at deposition, she may move for an order to compel, as Defendants have done.

“Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020(a).)

Because Plaintiff’s request would delay the Defendants’ discovery, good cause does not exist to grant Plaintiff’s motion. Moreover, other discovery tools are available to Plaintiff to ensure that Defendants comply with discovery that would not delay the discovery process.

The Motion for a Protective Order and Order Setting Discovery Sequence is DENIED.

Request for Sanctions

Section 2023.010 describes conduct that qualifies as misuse of the discovery process including failing to respond or submit to an authorized method of discovery, making without substantial justification, an unmeritorious objection to discovery; making an evasive discovery response, and making or opposing, unsuccessfully, and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010 subds. (d), (e), (f), & (h).)

The Court finds that Defendants acted with substantial justification in opposing Plaintiffs’ motion for a protective order. Therefore, Plaintiff’s request for sanctions is DENIED.

The Court also DENIES Defendants’ request for sanctions.

II. Motion to Compel Plaintiff’s/Cross-Defendant’s Deposition

Defendants move for an order compelling Plaintiff’s deposition and for monetary sanctions in the amount of $4,320.00.

Defendants assert that since the filing of this action, Plaintiff has yet to appear for deposition. The parties’ mediation efforts have failed to resolve the issue.

Defendants assert that Plaintiff’s deposition was first set for June 17, 2021, but was rescheduled. (Chang Decl. ¶ 2, Ex. 1, 2, & 3.) Plaintiff states the second deposition notice, sent on April 19, 2022, was deficient because Plaintiff’s counsel was not served. (Reed Decl. filed in support of Motion for a Protective Order, Ex. 2.) Defendants sent a third deposition notice on May 20, 2022. (Chang Decl. ¶ 2, Ex. 1, 2, & 3.)

Instead of complying with the Deposition notice, Plaintiff’s moved for a protective order seeking to stay her deposition until certain discovery disputes are resolved. Defendants assert that after multiple meet and confer efforts, most discovery disputes have been resolved and there is no good cause as to why discovery should be delayed by granting Plaintiff’s motion for a protective order.

The Court finds that even if Defendants delayed in complying with discovery, Plaintiff has failed to use the available enforcement procedures to compel discovery, and granting Plaintiff’s motion for a protective order would only further delay discovery. (See Code Civ. Proc., § 2019.020 subd. (a).)

Therefore, the Court GRANTS Defendant’s Motion to Compel.

Request for Sanctions

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).)

The Court finds that Plaintiff failed to show she acted with substantial in failing to appear for deposition or that circumstances exist that make the imposition of sanctions unjust. Therefore, sanctions are warranted.

Defendants’ notice of sanctions sought $4,320.00 in sanctions against Plaintiff. (Code Civ. Proc., § 2023.040.) Defense counsel’s hourly rate is $450.00 per hour. (Chang Decl. 10.) Counsel represents she spent 4.6 hours researching, preparing, and drafting the moving papers and reviewing the relevant exhibits in support of this motion. (Id.) Counsel anticipates sending an additional 5.0 hours drafting a reply and attending the hearing on this motion. (Id.)

The Court finds the amount billed is excessive given the lack of complexity of the motion and GRANTS Defendants’ request for sanctions, against Plaintiff, in the amount of $1,575.00 for 3.5 hours of work billed at a rate of $450.00 per hour.

The Court DENIES Plaintiff’s request for SANCTIONS.

Conclusion