2012-00117772-CU-WT

Daniel Deluca vs. CVS Pharmacy

Nature of Proceeding: Motion to Dismiss

Filed By: Epstein, Mark W.

Defendant Dean Crist’s unopposed motion to dismiss is denied.

Defendant’s request for judicial notice is granted.

Defendant moves to have the Court dismiss this action pursuant to CCP § 583.110 et
seq, on the basis that Plaintiff has failed to diligently prosecute the case against him
given Plaintiff’s failure to serve him with the summons and complaint.

To the extent the motion is made pursuant to CRC 3.110, it is denied. While CRC
3.110 provides that a complaint must be served on named defendants and that proofs
of service must be filed within 60 days after the complaint is filed, it provides no basis
for dismissing the action, instead only providing that the Court may issue an OSC if the
timelines are not followed. Indeed, pursuant to statute, a plaintiff has three years after
commencing the action to serve the summons and complaint. (CCP § 583.210(a).) To the extent the motion is sought pursuant to the Court’s discretion to dismiss an
action based on a delay in prosecution, pursuant to CCP § 583.410, it is also denied,
without prejudice. Indeed, a motion to dismiss for delay in prosecution must be served
and filed “at least 45 days before the date set for hearing of the motion.” (CRC, Rule
3.1342(a).) Here, Defendant filed and served the motion on October 1, 2013, only 24
days prior to the hearing. Defective notice deprives the Court of jurisdiction to act. Lee
v. Placer Title Co (1994) 28 Cal. App. 4th 503, 509, 511. In any event, the Court
could not exercise its discretion to dismiss for delay in prosecution for failure to serve
Defendant as it could only do so where service has not been made within two years
after the action is commenced against the defendant, which time has not yet passed.
(CCP § 583.420(a).) As a result, the motion is denied without prejudice.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Defendant’s counsel is ordered
to notify Plaintiff’s counsel immediately of the tentative ruling system and to be
available at the hearing, in person, or by telephone, in the event Plaintiff’s counsel
appears without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.

Item 3 2012-00117772-CU-WT

Daniel Deluca vs. CVS Pharmacy

Nature of Proceeding: Motion to Quash Deposition Subpoena

Filed By: Fulton, Natalja M.

Defendant CVS’ motion to quash or in the alternative, motion for protective order is
denied.

Plaintiff brings this action for violation of the FEHA, contending he was discriminated
against by not being allowed to return to work after a workplace injury, with doctor’s
restrictions of no lifting more than 20 lbs. Plaintiff was terminated based on CVS’
contended neutral policy of terminating workers who have not worked any hours in a
45 day period. Plaintiff contends that the policy of terminating employees
automatically after this period disparately impacts those who have been injured on the
job and are not being accommodated under FEHA.

Defendant seeks to quash the deposition notice of James Hofer on the basis that when
Plaintiff deposed Hofer as Defendant’s PMK in October 2012, Plaintiff also deposed
Hofer as an individual. Defendant argues that the most recent deposition notice
served on Hofer in his individual capacity therefore violates CCP § 2025.610 and is
burdensome, oppressive and harassing. Indeed, pursuant to Code of Civil Procedure
Section 2025.420, for good cause shown, the Court “may make an order to protect any
party, deponent, other natural person or organization from unwarranted annoyance,
embarrassment, or oppression, or undue burden and expense.”

However, while Defendant argues that the instant deposition notice violates CCP §
2025.610’s one deposition rule, the Court disagrees. That section does not preclude a
subsequent deposition of a natural person where he or she was “examined as a result
of that person’s designation to testify on behalf of an organization under 2025.230
[e.g., as a PMK].” (Code Civ. Proc. § 2025.610(c)(1).) While Plaintiff inquired into
areas regarding Hofer’s personal knowledge during his PMK deposition, the Court
cannot say that Plaintiff has violated the one deposition rule given that Hofer was first
“examined as a result of [his] designation to testify on behalf of [Defendant] under
2025.230.” (Id.) The motion on this ground is therefore denied. Section 2025.610
specifically allows the depositions of natural persons in their individual capacities who
were previously produced by an organization as a person most knowledgeable

In addition, the Court rejects the argument that the deposition notice at issue is
burdensome, oppressive and harassing. Indeed, while certain topics may have been
covered in the PMK deposition that could be characterized as topics based on Hofer’s
personal knowledge and thus questions directed to Hofer in his individual capacity
(which Plaintiff does not dispute occurred), that PMK deposition lasted less than three
hours, and Defendant never attempted to prevent Plaintiff’s counsel from asking any
questions regarding Hofer’s personal knowledge of this action. The Court finds that
the subsequent deposition of Hofer in his individual capacity is not burdensome,
oppressive and harassing. The deposition testimony which Defendant attached to its
motion to attempt to demonstrate this point is minimal and the Court finds that allowing
the deposition to proceed would not be burdensome, oppressive and harassing. This
is true despite the fact that, as Defendant points out in reply, that Plaintiff did not
identify in his opposition any specific testimony he hoped to elicit from Hofer at his
individual deposition. In addition, the fact that both the PMK deposition notice of the
deposition notice of Hofer in his individual capacity both contain identical requests for
production of documents does not demonstrate that the individual deposition notice is
improper. As a result, the motion to quash is denied.

Defendant’s alternate request for a protective order is denied. In the event the motion
to quash was denied, Defendant seeks to have the Court limit the scope of the
deposition to topics that were not previously covered. To obtain a protective order,
Defendant was required to show that the “intrusiveness of [the] discovery clearly
outweighs the likelihood that the information sought will lead to the discovery of
admissible evidence…” (Code Civ. Proc. § 2025.240(a).) Defendant has not met this
standard. The Court disagrees that Plaintiff has “extensively deposed Mr. Hoper on
topics which relate to the deponent as an individual.” (Mot. 7:23-25.) Again, the PMK
deposition lasted under three hours and the deposition testimony cited by Defendant in
its motion in an attempt to demonstrate the extensive questioning of Hofer in his
individual capacity was minimal. Here, Hofer was the district manager in the district
where Plaintiff worked and is alleged to have denied Plaintiff’s accommodation
requests and thus Hofer clearly has relevant information which Plaintiff’s counsel may
not have explored in the PMK deposition, or may have only partially explored. The
intrusiveness of allowing the deposition to proceed without restricting the topics to be
covered, even if this results in some overlap with questions asked at the PMK
deposition does not “clearly outweigh the likelihood that the information sought will
lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2025.240(a).)

Defendant’s request for sanctions is denied as its motion was denied. Plaintiff’s
request for sanctions is also denied. On balance, the Court concludes that the motion,
though unsuccessful, was not brought without substantial justification.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Defendant’s counsel is ordered
to notify Plaintiff’s counsel immediately of the tentative ruling system and to be
available at the hearing, in person, or by telephone, in the event Plaintiff’s counsel
appears without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.