Case Number: BC651857 Hearing Date: March 26, 2018 Dept: 53

glenn spears vs. smart & final stores llc , et al.; BC651857, MARCH 26, 2018

[Tentative] Order RE: DEFENDANT SMART & FINAL LOGISTICS, LLC’S MOTION FOR THE IMPOSITION OF MONETARY SANCTIONS AGAINST SPEARS AND HIS LAWYERS AND FOR A PROTECTIVE ORDER

Defendant Smart & Final Logistics, LLC’s Motion for the Imposition of Monetary Sanctions against Spears and His Lawyers and for a Protective Order is GRANTED. Defendant’s request for sanctions is also GRANTED in the amount of $4,175.00.

BACKGROUND

Plaintiff Glenn Spears (“Spears”) filed this employment action on February 24, 2017 against Defendants Smart & Final Stores LLC, Smart & Final Logistics, LLC, Smart & Final LLC, Smart & Final Properties I LLC, and Smart & Final Stores, Inc. The Complaint asserts causes of action for (1) harassment based on race/color and ancestry; (2) failure to investigate, stop, and prevent harassment; (3) negligent retention and supervision; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress.

On or about October 9, 2017, Spears noticed the depositions of three management-level personnel to occur on October 30, 2017 at 10:00 a.m. in Los Angeles. (Healy Decl., ¶ 9.) On October 30, 2017, when Defendant’s counsel and two of the witnesses (the third witness was en route) arrived at the deposition location, counsel for Spears informed Defendant’s counsel that the depositions would not proceed because the attorney handling the depositions was unavailable. (Healy Decl., ¶ 9.) Defendant’s counsel did not receive any advance notice of the cancellation of the depositions, either via email or by phone. (Healy Decl., ¶ 9.) Defendant’s counsel also spent additional time at the deposition location waiting for the deposition to proceed. (Healy Decl., ¶ 9.)

Defendant Smart & Final Logistics, LLC (“Defendant”) now moves for an order imposing monetary sanctions against Spears and his attorneys for their failure to proceed with their own noticed depositions. If the Court grants the motion, Defendant also moves for a protective order preventing Spears from taking the personnel depositions without first paying the sanctions. Spears opposes.

DISCUSSION

Any party may obtain discovery by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc. § 2025.010.) Service of a proper deposition notice is “effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify . . .” (Code Civ. Proc. § 2025.280.) “If the party giving notice of the deposition fails to attend or proceed with it, the court shall impose a monetary sanctions under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor of any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanctions unjust.” (Code Civ. Proc., § 2025.430.)

Counsel for Spears asserts that his failure to appear at the noticed depositions was due to a “medical emergency.” (Rodriguez Decl., ¶ 13.) However, Spears does not dispute that no notice was provided to Defendant until after they arrived at the deposition. Spears also does not dispute that another of his attorneys was present at the deposition location but was just not prepared to proceed with the depositions. Finally, counsel for Spears suggests that Defendant’s counsel had previously indicated that the depositions of the three witnesses would not go forward until Spears’ deposition had been completed. (Rodriguez Decl., ¶ 13, Ex. E.) The problem with this argument is that the email exchange between counsel about the order of the depositions happened before the personnel depositions were noticed. There is no evidence that Defendant refused to appear at the noticed depositions for October 30, 2017, and in fact, they did appear. Therefore, the Court finds that sanctions are warranted here.

Defendant seeks sanctions in the amount of $8,500.00 for the time spent preparing the witnesses for the depositions, having to travel to and from Los Angeles (to and from San Diego, where Defendant’s counsel is located) on October 30, 2017, for the time spent at the deposition location waiting for the depositions to proceed, and for the costs incurred in bringing this motion. The Court finds that sanctions for the time spent by Maria Roberts, counsel for Defendant, in meeting with and preparing the witnesses for the depositions is not warranted since presumably, the depositions will eventually be going forward and that time will not have been wasted. The Court also finds an hourly rate of $250/hour is more reasonable for the time spent related to bringing this motion, so therefore, the Court awards monetary sanctions in the total amount of $4,175.00 to Defendant (($300 x 8.5 for Healy’s time on October 30, 2017) + ($250 x 6.5 for Healy’s time preparing and arguing this motion)).

Additionally, the Court finds that pursuant to Code of Civil Procedure section 2025.420(b) and in light of the past discovery misconduct by Spears, Defendant has shown good cause for a protective order preventing Spears from deposing the three personnel witnesses until the monetary sanctions have been paid.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for the Imposition of Monetary Sanctions against Spears and His Lawyers and for a Protective Order is GRANTED. Spears and his attorneys are ordered to pay sanctions in the amount of $4,175.00 to Defendant within 20 days of this Order. The Court further orders that until this monetary sanctions is paid, the depositions of the three personnel witnesses shall not go forward.

Defendant is to provide notice of this ruling.

DATED: March 26, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court