Judge Yolanda Orozco, Case 21STCV17851 2023-03-10 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV17851, Date: 2023-03-10 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: 21STCV17851 Hearing Date: March 10, 2023 Dept: 31

MOTION TO COMPEL DEPOSITION

AND FURTHER RESPONSES

Background

On May 12, 2021, Plaintiff Aubrey Williams filed a Complaint against Defendants Thermal Air Conditioning, Inc. and Robert Canizalez.

The Complaint asserts claims for:

1) Sex and/or Gender Discrimination (Gov. Code §§ 12940, et seq.);

2) Sexual Harassment (Gov. Code §§ 12940, et seq.);

3) Failure to Prevent and/or Remedy Discrimination and Harassment (Gov. Code §§ 12940, et seq.);

4) Negligent Supervision and Retention;

5) Wrongful Constructive Termination in Violation of Public Policy; and

6) 6. Failure to Pay All Wages Earned Upon Discharge (Labor Code §§ 201-203).

On September 13, 2022, Plaintiff filed three motions to compel the deposition of Karen Kelly, Robert Canizalez, and Travis Kelly and monetary sanctions.

On September 13, 2022, Plaintiff filed a motion to compel further responses to Defendant Robert Canizalez, Request for Production of Documents (RPD) and monetary sanctions against Defendant in the amount of $3,436.65.

On September 13, 2022, Plaintiff filed two motions to compel further responses to Form Interrogatory No. 16.2 and Request for Production of Documents Nos. 4, 22, 23, 24, 34, 37, 38, 39 and 66.

On December 30, 2022, Plaintiff filed a motion to compel the deposition of Defendant Thermal Air’s Person(s) Most Qualified (PMQ).

Legal Standard

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).)¿¿¿

motion to Compel Further

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., §§ 2030.30(c); 2031.310(c); 2033.290(c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300(b); 2031.310(b); 2033.290(b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

Discussion

I. Plaintiff’s Motion to Compel the Deposition of Karren Kelly

Plaintiff’s Motion to Compel the Deposition of Karren Kelly with Production of Documents is MOOT.

Plaintiff represents that the deposition took place but that the deposition was not concluded as Ms. Kelly did not engage in any search for nor produced any of the documents requested. If the issue with the document production is not resolved, Plaintiff may file a motion to compel further.

Request for Sanctions

“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.)

Plaintiff’s motion sought sanctions in the amount of $1,074.65 against Defendant. Plaintiff’s notice of sanctions is deficient since it failed to specify against which Defendant sanctions are sought since Karren Kelly is not a party. The request for sanctions is DENIED.

II. Plaintiff’s Motion to Compel the Deposition of Robert Canizalez

Plaintiff’s Motion to Compel the Deposition of Robert Canizalez is also MOOT.

Plaintiff states she withdraws the motion to compel but states that Plaintiff’s counsel wishes to be heard on her request for attorney’s fees and costs in having had to the file the motion in order to obtain Mr. Canizalez’s compliance.

Plaintiff’s motion properly requested monetary sanctions against Defendants joint and severally in the amount of $3,436.65. (Code Civ. Proc., § 2023.040.)

Plaintiff’s counsel’s hourly rate is $675.00 per hour (Munro Decl. ¶ 16.) Plaintiff’s counsel spent 1 hour preparing the motion and anticipates $1,350.00 for the two hours spent reviewing the opposition and preparing a reply. (Id.) Plaintiff also requests $61.75 in filing fees.

The Court agrees that Plaintiff is entitled to attorney’s fees for having to file the motion order to obtain Defendant Canizalez’s deposition. However, as the issue was resolved the amount of fees requested is excessive.

The Court grants Plaintiff’s request for monetary sanctions in the amount of $675.00 for 1.0 hours of work plus $61.65 in filing fees against Defendants jointly and severally, for a total of $736.65.

III. Plaintiff’s Motion to Compel the Deposition of Travis Kelly

Plaintiff’s Motion to Compel the Deposition of Travis Kelly is also MOOT.

Plaintiff represents that the deposition took place but that the deposition was not concluded as Mr. Kelly did not engage in any search for nor produced any of the documents requested. If the issue with the document production is not resolved, Plaintiff may file a motion to compel further.

Similarly, Plaintiff’s notice of request for sanctions is deficient in that Plaintiff fails to identify against which Defendant sanctions are sought is Travis Kelly is not a party. (Code Civ. Proc., § 2023.040.) No sanctions will be awarded.

IV. Motion to Compel Further RPD as to Defendant Robert Canizalez

Plaintiff seeks an order to Compel Further responses to Defendant Robert Canizalez to Request for Production of Documents (RPD) and for sanctions in the amount of f $3,436.65 against Defendant.

at the IDC, Defendants agreed to produce further responses and that the motion may be kept on calendar to allow a hearing on attorney’s fees. (Min. Or. 02/21/23.) Defendant states that supplemental responses were served on February 03, 2023 and no further responses are warranted. Plaintiff on reply asserts that the responses are not code compliant because Defendant Canizalez does not identify responsive documents or state that a “diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” (Code Civ. Proc., § 2031.230.) Defendant Canizalez also failed to state the reason for the inability to comply or who may have possession, custody, or control of the documents sought. (See id.) For this reason, Plaintiff asserts that the responses were not code compliant and no documents were produced.

The Court agrees that further responses are warranted and GRANTS Plaintiff’s request for further responses to RPD Nos. Nos. 4,22, 23, 24, 34, 37, 38, 39, and 67.

Request for Sanctions

(Code Civ. Proc., § 2023.040.)

The Court agrees that sanctions are warranted. Plaintiff’s notice of sanctions requested sanctions in the amount of $3,436.65 against Defendant only.

Plaintiff’s counsel asserts that since the filing of this motion on September 13, 2022, her hourly rate has increased from $675.00 per hour to $800.00 per hour. (Munro Decl. ¶ 10, Munro Supp. Decl. 10.)

At an hourly rate of $675.00, Plaintiff’s counsel asserts she spent 2.0 hours preparing this motion. (Munro Decl. ¶ 10.) Plaintiff spent more than 1.0 hours reviewing the opposition and drafting a reply at the rate of $800.00 per hour. (Munro Supp. Decl. ¶ 10.) Plaintiff also asks for $61.65 in filing fees. (Munro Decl. ¶ 10.)

The Court finds that although sanctions are warranted against Defendant, the amount requested is excessive. The Court will award for 1 hour of work for $800.00, plus $61.65 in filing fees, totaling $861.65 in sanctions.

V. Motion to Compel Deposition of Defendant Thermal Air’s PMQ

Plaintiff’s reply represents that Defendant’s PMQ was scheduled to take place on February 17, 2023, and the motion will be withdrawn if the deposition takes place.

Without a supplemental declaration, the Court cannot ascertain whether the deposition of the PMQ took place or if the motion should be granted. In the absence of any information from Plaintiff, the motion is DENIED.

VI. Motion to Compel Further Responses to RPD as to Defendant Thermal Air

Plaintiff filed two motions to Compel further responses from Defendant Thermal Air to serve further responses Requests for Production of Documents (RPD) Nos. 4, 22, 23, 24, 34, 37, 38, 39, and 66.

Defendant Thermal Air asserts that it has already served supplemental discovery responses at issue and that sanctions are not warranted. Plaintiff’s reply asserts that Code-compliant responses have not been served because no additional documents have been produced and Defendant fails to identify the responsive documents. (Munro. Reply Decl. ¶¶ 2-8.)

Code of Civil Procedure section 2031.280 subdivision (a) requires that the documents produced be identified with the specific request number to which the documents respond. Defendant also failed to state “that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand” or why the party is unable to comply. (Code Civ. Proc., § 2031.230.) The deficiency in Defendant’s supplemental response was communicated to Defendant’s counsel who responded by submitting an opposition affirming the discovery dispute had been resolved.

Request for Sanctions

Plaintiff seeks monetary sanctions in the amount of $1,411.65 against Defendant and Defendant’s Counsel regarding the motion to compel further responses to RPD as to Defendant Thermal Air.

Plaintiff’s counsel’s hourly rate is $675.00 per hour. Plaintiff’s counsel spent 3.0 hours preparing this Motion for further responses to RPD, and Separate Statement. Plaintiff’s counsel anticipates spending 2.0 hours responding to the opposition and 1.0 hour preparing for the hearing. The Court finds the requested award is excessive.

The Court GRANTS Plaintiff’s request for monetary sanctions in the amount of $1,012.50 for 1 ½ hours of work against Defendant Thermal Air and its Counsel of record regarding the motion for further responses to the request for production of documents.

Conclusion

I. Plaintiff’s Motion to Compel the Deposition of Karren Kelly is MOOT.

II. Plaintiff’s Motion to Compel the Deposition of Robert Canizalez is MOOT but the Court GRANTS Plaintiff’s request for monetary sanctions in the amount of $736.65 for 1.0 hour of work plus $61.65 in filing fees against Defendants jointly and severally.

III. Plaintiff’s Motion to Compel the Deposition of Travis Kelly is MOOT.

IV. Motion to Compel Further RPD as to Defendant Robert Canizalez is GRANTED as to RPD Nos. 4,22, 23, 24, 34, 37, 38, 39, and 67. Code-compliant responses due in 30 days.

The Court finds that although sanctions are warranted against Defendant in the amount of $861.65 for 1.00 hours of work billed at a rate of $800.00 per hour plus $61.65 in filing fees.

V. The motion to Motion to Compel Deposition of Defendant Thermal Air’s PMQ is DENIED.

VI. Plaintiff’s Motion to Compel Further Responses to RPD as to Defendant Thermal Air is GRANTED as to RPD Nos. 4, 22, 23, 24, 34, 37, 38, 39, and 66. Code-compliant responses due in 30 days.

The Court GRANTS Plaintiff’s request for monetary sanctions in the amount of $1,012.50 against Defendant Thermal Air and its Counsel of record regarding the motion for further responses to the request for production of documents.

Moving party to give notice.