Case Number: BC675623 Hearing Date: September 09, 2019 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

MARIA DEL CARMEN TORRES, et al.,

Plaintiffs,

v.

LATIGO, INC., et al.,

Defendants.

Case No.: BC675623

Hearing Date: September 9, 2019

[TENTATIVE] RULING RE:

Defendants Latigo, Inc. and Donna Vasseghi’s Motion to Quash or Modify Deposition Subpoena

Defendants Latigo, Inc. and Donna Vasseghi’s Motion to Quash or Modify Deposition Subpoena is DENIED.

FACTUAL BACKGROUND

This is an action for employment discrimination and wage-and-hour violations. The Complaint alleges as follows. Plaintiff Maria Del Carmen Torres (“Torres”) worked for Defendants Latigo, Inc., First Apparel Company, LLC, and Adrian Doe (“Employer Defendants”) from January 7, 2013, as a seamstress. (Complaint ¶ 20.) Torres began developing pain in her foot because of the operation of her sewing machine pedal. (Complaint ¶ 22.) She attempted to switch feet, but the other foot also developed pain. (Complaint ¶ 23.) Torres complained to her supervisor, and thereafter had her hours reduced before she was ultimately terminated on December 1, 2016. (Complaint ¶¶ 24–29.) Plaintiffs Maria Martinez and Maria Luisa Munguia were also terminated after complaining about their work-related disabilities. (Complaint ¶¶ 30–46.) Defendants also failed to pay Plaintiffs for all hours worked. (Complaint ¶¶ 57–70.)

PROCEDURAL HISTORY

Plaintiffs filed the Complaint on September 17, 2017, alleging 17 causes of action:

FEHA Discrimination

FEHA Harassment

FEHA Retaliation

Failure to Prevent FEHA Discrimination, Harassment, or Retaliation

Failure to Provide Reasonable Accommodation

Failure to Engage in Good Faith Process

Wrongful Termination

Declaratory Judgment

Failure to Pay Wages

Failure to Pay Overtime Compensation

Failure to Provide Meal and Rest Periods

Failure to Provide Itemized Wage and Hour Statements

Waiting Time Penalties

PAGA

Unfair Competition

Failure to Permit Inspection of Personnel Records

Conversion

This Court on January 17, 2019, granted in part Defendants’ Motion to Quash or Modify Deposition Subpoena regarding this same deponent by limiting the date-range of documents requested and excluding tax returns. The Court denied Plaintiffs’ Motions to Compel Further Responses from Latigo on the same date, and denied Torres’s Motions to Compel and Deem Admitted.

Plaintiff Munguia filed a Motion to Compel Further Responses from Defendant Latigo on April 19, 2019. This Court denied the motion and awarded sanctions against Munguia and her counsel.

On March 3, 2019, Defendants Latigo, Inc. and Donna Vasseghi filed the instant Motion to Quash or Modify Deposition Subpoena.

On August 26, 2019, Plaintiffs Torres, Martinez and Munguia filed an Opposition.

PRE-FILING HISTORY

In June 2018 Plaintiffs propounded a deposition subpoena for production of business records on Latigo’s accountant, Loretta Casey. (Motion at p. 5.) The business records requested were Latigo’s financial statements. (Motion at p. 5.) On January 17, 2019, this Court restricted the subpoena by limiting the date range and excluding tax returns.

In February 2019, Casey informed Defendants’ counsel that she had received a subpoena for deposition on March 12th and production of documents from Plaintiffs, and that she had informed them that she did not have any responsive documents. (Motion at p. 6; Vasseghi Decl. ¶ 6.) Defendants and Defendants’ counsel did not receive a copy of the subpoena. (Vasseghi Decl. ¶ 6.)

On February 14 and 15, 2019, Defendants’ counsel left two messages with Plaintiffs’ counsel regarding rescheduling the deposition. (Vasseghi Decl. ¶ 7.) On February 15, 2019, Plaintiffs’ counsel’s office called Defendants’ counsel and indicated that they were prepared to discuss matters relating to Casey’s deposition so long as it involved negotiating the sanctions that this Court previously ordered. (Vasseghi Decl. ¶ 8.) On the same day, Defendants’ counsel sent a letter to Plaintiffs’ counsel explaining that the deposition had been scheduled for the middle of tax season and that Casey was not available and nor was her counsel. (Vasseghi Decl. ¶ 9.) The letter included a draft declaration from Casey declaring that she had no documents responsive to the subpoena and not no recollection or knowledge pertaining to any matters for the time period requested. (Vasseghi Decl. ¶ 9.)

On a phone call on February 18, 2019, Plaintiffs’ counsel said that they could not respond to the letter until the declaration was signed and the attached exhibits were authenticated. (Vasseghi Decl. ¶ 10.)

On February 25, 2019, after Defendants’ counsel emailed a copy of the signed declaration, Plaintiffs’ counsel responded that the declaration was not complete, the exhibits were not authenticated, and the deposition would be moving forward because Defendant Vasseghi’s testimony was that Casey prepared Latigo’s financial statements. (Vasseghi Decl. ¶ 12.) Defendants responded on the same day, stating that testimony said that Casey prepared tax returns and requesting a postponement of the deposition date. (Vasseghi Decl. ¶ 13.) Defendants did not hear from Plaintiffs’ counsel prior to filing the instant motion. (Vasseghi Decl. ¶¶ 14-15.)

DISCUSSION

DEPOSITION SUBPOENA

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

Defendants ask the court to quash a subpoena issued by Plaintiffs on Loretta Casey, requesting the following information:

“Defendant Latigo, Inc. dba Blue Minx financial statements including without limitation, profit and loss statements, income and expense reports, balance sheets, journal entries, adjusted financial statements, bank statements and canceled checks from January 1, 2014 to January 30, 2016.”

Meet and Confer

Plaintiffs argue in opposition that Defendants failed to meet and confer as required by California Code of Civil Procedure section 2025.410, subsection (c). (Opposition at pp. 5-6.)

“[A] party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code of Civ. Proc. § 2025.410(c).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

The Court finds that Defendants have satisfied the meet and confer provisions. Defendants included a declaration of Defendants’ counsel/Defendant Vasseghi and exhibits detailing interactions with Plaintiffs’ counsel, and attempts to meet and confer, via phone, email and letter. (Vasseghi Decl. ¶¶ 7-15.)

Service of Process

Plaintiffs argue in opposition that Defendants failed to serve the instant motion on Plaintiffs. (Opposition at p. 6.)

There is no basis to find that the Motion was not properly served. The filed proof of service states under penalty of perjury that the Motion was served by personal delivery on Plaintiffs’ counsel on March 7, 2019. (Proof of Service re Motion at p. 2.) Plaintiffs’ statement in their opposition that they did not receive the motion does not suffice for the Court to find otherwise.

Motion to Quash

Defendants argue that the instant subpoena on Casey constitutes a misuse of the discovery process pursuant to Code of Civil Procedure section 2023.010, on the theory that Plaintiffs “have noticed the deposition of Casey and have insisted on March 12, 2019 as the date for the deposition solely for the purpose of using as leverage in order to ‘negotiate’ the sanctions ordered by the court previously[.]” (Motion at p. 9.) Defendants cite section 2023.010 in relevant part, defining misuses of the discovery process including: “[…](c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code of Civ. Proc. § 2023.010(c).)

In opposition, Plaintiffs bewilderingly argued against “Defendants’ assertions that the subpoena is overly broad[.]” (Opposition at p. 7.)

Defendants originally objected to the deposition subpoena, in part, because it was to take place during tax season in March. (Vasseghi Decl., Exh. B.) Now that tax season has passed, the issue is moot.

At this point, the underlying issue is that Defendants object to the deposition of Casey and the request for production of business records on the basis that Casey’s role with Latigo is limited to preparing the tax returns, which were excluded by this Court on January 17, 2019. (Vasseghi Decl., Exh. B.) Defendants argue that Casey does not have any information, records or recollection relevant to the requested financial statements, other than the tax returns, and Casey prepared a declaration attesting to this. (Vasseghi Decl., Exh. B, Exh. C ¶¶2-6.).)

The Court notes that Casey has offered some statements of inability to comply that are in accord with Code of Civil Procedure § 2031.230. The section states:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

In her declaration, Casey declared that she is not able to comply with the production of the requested documents because they have never been in her possession, due to the fact that her office “did not prepare the books for Latigo, Inc. for the years 2014 and 2015, nor for any other time period at all. My office only does Tax Preparation for Latigo, Inc.” (Vasseghi Decl., Exh. B, Exh. C (Casey Decl. ¶ 3).) However, Casey does not set forth the name and address of nay natural person or organization known by her to have possession, custody, or control of the financial statements, nor did she detail the process for her diligent search and reasonable inquiry.

If the requested documents do not exist, or do not exist within Casey’s possession, Casey should provide, pursuant to Code of Civil Procedure section 20231.230, a declaration or declarations detailing the efforts expended to locate such documents and must provide the name and address of a natural person or organization known or believed by Casey to have possession, custody, or control of the financial statements.

Plaintiffs are entitled to Casey’s deposition. Pursuant to Code of Civil Procedure section 2017.010:

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

Although Defendants and Casey have declared that Casey has no knowledge or information relating to the financial statements, Plaintiffs may depose Casey to confirm this lack of knowledge. The Court finds that the instant subpoena on Casey does not constitute a misuse of the discovery process pursuant to Code of Civil Procedure section 2023.010. Both parties to meet and confer as to an acceptable time and place for the deposition.

Accordingly, the Motion is DENIED.

SANCTIONS

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure section 2025.410(d).)

The Court finds that Defendants acted with substantial justification in filing the instant motion. No sanctions are awarded.

Defendants to give notice.

Dated: September 9, 2019

__________________________________________

Hon. Robert S. Draper
Judge of the Superior Court