Pepitone, et al. v. Five Branches University, LLC, et al.		CASE NO. 113CV239718
DATE: 25 April 2014	TIME: 9:00	LINE NUMBER: 15

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose.  Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 24 April 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 April 2014, the motion of defendant FiveBranchesUniversity, LLC (“FBU”) to compel plaintiff Meagan Clarke’s (“Clarke”) deposition and for monetary sanctions was argued and submitted. Clarke filed a formal opposition to the motion and requested monetary sanctions.

Statement of Facts

This is a civil rights action arising out FBU’s alleged discrimination against non-Korean speaking students. The plaintiffs allege that since at least 2009, FBU secretly charged lower tuition prices for academic and clinic units offered in the Korean language than for units offered in the English and Chinese languages, although the degree obtained by completing program requirements in any of these languages is the same.

In their operative third amended complaint, the plaintiffs assert causes of action for violation of the Unruh Civil Rights Act, Civil Code section 51, violation of Civil Code section 51.5, violation of Business and Professions Code section 17045, violation of the false advertising law, and violation of the unfair competition law.

Discovery Dispute

On 24 January 2014, FBU noticed the deposition of Clarke for 4 March 2014. At that time, Clarke was self-represented. After consultation between the parties, Clarke’s deposition was rescheduled for 5 March 2014.

On 4 March 2014, Clarke sent an email to FBU’s counsel indicating that she would not appear for her deposition the following day. She stated that she did not feel qualified to answer deposition questions without the aid of counsel and requested 30-90 days to find suitable counsel.

That same day, FBU’s counsel sent an email in reply. She indicated that if Clarke did not appear for her deposition, Clarke would be responsible for the court reporter’s cancellation fee, and FBU would move to compel her attendance at deposition and seek monetary sanctions. Clarke did not appear for her deposition on 5 March 2014.

On 21 March 2014, FBU filed this motion to compel Clarke’s deposition. Clarke filed her opposition on 14 April 2014. On 18 April 2014, FBU filed its reply.

Discussion

I. Motion to Compel Clarke’s Deposition

FBU moves for an order compelling Clarke’s deposition. In opposition, Clarke contends that FBU failed to properly meet and confer prior to filing this motion, and she is willing to reschedule her deposition for a date in May.

 

A. Legal Standard

If, after service of a deposition notice, a party to the action, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for the examination, the party giving the notice may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

B. Meet and Confer

As an initial matter, Clarke contends that FBU failed to adequately meet and confer prior to filing this motion because all efforts to meet and confer occurred prior to, rather than after, the dates for which the deposition was noticed. Clarke’s argument is without merit.

A motion to compel a deponent to appear at deposition must be accompanied either by a meet-and-confer declaration or, when the deponent fails to appear for deposition, by a declaration indicating that the moving party contacted the deponent to inquire about the nonappearance. (See Code Civ. Proc., § 2025.450, subd. (b)(2).)

First, on 10 March 2014 at the case management conference, FBU inquired about Clarke’s failure to appear for her deposition on 5 March 2014, and Clarke continued to insist that she would not appear for her deposition until she had retained counsel. (Topp Decl. ¶ 2.) Therefore, FBU adequately complied with Code of Civil Procedure section 2025.450, subdivision (b)(2).

Second, prior to her deposition, Clarke made clear that any attempt to meet-and-confer would be futile. In this regard, Clarke sent an email to FBU’s counsel at 3:37 p.m. the day before her deposition, unequivocally stating that she would not appear for her deposition the following day and would not reschedule until she found suitable counsel. Within an hour of this email, FBU’s counsel replied with a detailed explanation of the consequences of failing to appear for a deposition.

After Clarke failed to appear the following morning, it became clear that additional efforts to meet and confer were unlikely to be fruitful, and counsel for FBU was not obligated to continue such efforts (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431), particularly where Clarke refused to provide any assurances that she would appear for her deposition in the near future. (Cf. Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 [“Here, the failure to appear was due to oversight and opposing counsel expressed a willingness to reschedule the depositions at a mutually convenient date.”].)

Accordingly, FBU complied with the meet-and-confer requirement.

C. Analysis

FBU contends that Clarke did not file an objection to the notice of deposition and did not appear. Therefore, it reasons that it is entitled to an order compelling Clarke to appear for her deposition on a date certain, preferably in May 2014. In her opposition, Clarke states that she merely wished to delay the deposition until she could obtain suitable counsel.[1] As she has now hired counsel, she is amenable to appearing for her deposition in May 2014.

As Clarke did not file an objection and did not appear for her deposition, an order compelling her to appear for deposition is warranted.

D. Conclusion

FBU’s motion to compel Clarke’s deposition is GRANTED.

II. Requests for Monetary Sanctions

            A. FBU’s Request for Monetary Sanctions

FBU requests an award of monetary sanctions against Clarke pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1). [2] If a motion to compel a deponent’s attendance and testimony is granted, the Court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless 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).)

Clarke’s opposition to FBU’s motion was unsuccessful, she was not substantially justified, and no other circumstances make the imposition of sanctions unjust. Therefore, FBU is entitled to an award of monetary sanctions against Clarke.

FBU’s counsel, Denise Top, avers that she spent 4.5 hours seeking informal resolution of the issues addressed in the motion, drafting the motion and filing the moving papers at a billing rate of $220 per hour (for a total of $990). She further declares that she expects to spend 7 hours filing a reply brief and attending the hearing. The Court does not award sanctions for expenses incurred during the meet-and-confer process or expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, these attorney fees are not compensable.

While counsel does not provide a breakdown of the number of hours she spent preparing the motion and the number of hours she spent seeking an informal resolution, 3 hours is a reasonable amount of preparation time given the lack of complexity of this motion. The hourly rate is otherwise reasonable. Finally, FBU seeks to recoup the $410 court reporter’s fee incurred as a result of Clarke’s last minute cancellation. This cost constitutes a reasonable expense. Accordingly, FBU’s request for monetary sanctions against Clarke is GRANTED IN PART in the amount of $1,070.

B. Clarke’s Request for Monetary Sanctions

Clarke also requests an award of monetary sanctions against FBU. As she was not the prevailing party on the motion, her request for monetary sanctions is DENIED.

Conclusion and Order

FBU’s motion to compel Clarke’s deposition is GRANTED. Accordingly, Clarke shall appear and be deposed within 30 calendar days of the filing of this Order, at a date and time that is mutually agreed upon by the parties.

FBU’s request for monetary sanctions is GRANTED in the amount of $1,070. Accordingly, within 30 calendar days of the filing of this Order, Clarke shall pay $1,070 to FBU’s counsel.

Clarke’s request for monetary sanctions is DENIED.