Case Number: BC493405 Hearing Date: June 11, 2014 Dept: 34

Moving Party: Plaintiff Lynne Underwood (“plaintiff”)

Resp. Party: Non-parties James Barletta and Madeline Barletta (“Barlettas”)

PRELIMINARY COMMENTS:

Despite having been dismissed from this action, the Barlettas, in their opposing papers, identify themselves as defendants. The Barlettas are no longer defendants in this action. (See Dismissal entered 1/29/14.)

It appears as if the parties have reached an agreement on this issue, and that the Barlettas are appearing for their deposition on 6/4/14. If that is indeed the case, the court wonders why the moving party has not taken this motion off-calendar, thus saving the court and its staff the time it took to analyze this motion.

BACKGROUND:

Plaintiff filed the instant action on October 9, 2012, against defendants (including the Barlettas) for: (1) disability harassment, discrimination, and retaliation (FEHA); (2) defamation; (3) violation of Labor Code § 1102.5; (4) intentional infliction of emotional distress; and (5) retaliation and wrongful termination in violation of public policy. Plaintiff alleges she was employed by defendant Averydale from 2007 until her termination in January 2012. (Compl., ¶¶ 6-7.) Plaintiff alleges she is a disabled person under Government Code section 12926.1. (Id., ¶ 8.) Plaintiff alleges the moving defendants made false statements about plaintiff that she was a liar and that she had engaged in unlawful and fraudulent conduct. (See id., ¶¶ 12, 29.)

On 7/12/13, the Court heard the Barlettas ex parte application to quash the deposition subpoenas and notices of deposition, or in the alternative for a protective order. The Court instructed the Barlettas to provide more information. It does not appear that the Barlettas ever provided the requested information.

On 1/29/14, plaintiff dismissed her claims against the Barlettas, without prejudice.

On 4/22/14, the Court heard another ex parte application from the Barlettas seeking to specially set a motion for summary judgment and for a protective order staying the depositions of the Barlettas until such a motion is heard. The Court denied the application.

ANALYSIS:

The Court rejects the Barlettas’ assertions and arguments regarding a purported settlement agreement with plaintiff. There is no showing that the purported agreement gave the Barlettas the right to refuse to attend their depositions. The Barlettas have not brought a claim against plaintiff for breach of this purported agreement nor have they sought an order enforcing the agreement. The Barlettas admit that plaintiff has not signed the written settlement agreement. (See Opp., p. 4.)

“Where the witness whose deposition is sought is not a party (or a ‘party-affiliated’ witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 8:535 [citing Code Civ. Proc., §§ 2020.010(a)(1); 2025.280(b)].)

A deposition commanding the witness to appear and testify must meet the following requirements:

· It must state the time and place where the deponent is commanded to appear;

· It must set forth a summary of (1) the nature of a deposition; (2) the deponent’s rights and duties; and (3) the penalties for disobedience to a deposition subpoena (see CCP § 2020.310(b));

· The deposition subpoena must state if the deposition is to be video-recorded, audio-recorded, or conducted using instant digital display (see CCP § 2020.310(c)-(d)); . . .

(Weil & Brown, ¶ 8:538 [italics in original].) The subpoenas served on the Barlettas sufficiently comply with these requirements. (See Khousadian Decl., Exh. C.)

The subpoenas must have been served by personal service. (See Code Civ. Proc., § 2020.220(b), (c).) The most recent subpoenas provided by plaintiff were served by mail, not personal service. (See Khousadian Decl., Exh. C.) The Barlettas do not object to the method of service.

Under California Rules of Court, rule 3.1345, “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement . . . [including] . . . (4) To compel answers at a deposition.” Rule 3.1345(b) further provides that “[a] separate statement is not required when no response has been provided to the request for discovery.” Plaintiff acknowledges that the Barlettas served objections to the subpoenas. (See Khousadian Decl., Exh. K.) Plaintiff fails to provide separate statements with the motion. However, the memorandum included with the motion sufficiently addresses the objections.

The instant motion was brought pursuant to Code of Civil Procedure section 1987.1, which provides, in relevant part: “If a subpoena requires the attendance of a witness … 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 … directing compliance with [the subpoena] upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1(a).)

The most recent deposition was originally noticed for 3/26/14, but was rescheduled to 4/25/14. (See Khousadian Decl., ¶ 22, Exh. C.) The Barlettas did not appear for the depositions scheduled for 4/25/14 and certificates of non-appearance were made. (Id., Exh. H.) This motion was filed on 5/19/14. Plaintiff provides a declaration as to the meet and confer efforts which occurred prior to 4/25/14. (See id., ¶¶ 14-29.)

The motion does not describe any efforts to meet and confer after 4/25/14. Counsel for the Barlettas, Jennifer R. Nunez, declares that, after the Barlettas’ ex parte application for a protective order was denied on 4/22/14, she contacted the Barlettas to confirm their ability to proceed with the 4/25/14 depositions. (Nunez Decl., ¶ 17.) Nunez declares that Mrs. Barletta suffered from shingles and therefore Nunez communicated with plaintiff’s counsel and requested that the depositions be continued to 5/13/14 to allow Mrs. Barletta’s health to improve. (Id., ¶¶ 17-19, Exh. J.) Nunez declares that plaintiff’s counsel never responded to the newly proposed date and instead filed the instant motion. (Id., ¶¶ 20-22.) On 5/21/14, Barlettas’ counsel sent plaintiff’s counsel a letter proposing three new dates for the depositions. (Id., ¶ 23, Exh. L.) The next day, plaintiff’s counsel advised Barlettas’ counsel that they would proceed with the depositions on 6/4/14. (Id., ¶ 24, Exh. A.) Therefore, it appears that the parties have reached an agreement regarding the depositions.

In the motion, plaintiff argues that the Barlettas must produce documents at their depositions. However, none of the deposition subpoenas or notices provided by plaintiff include requests for production of documents. (See Khousadian Decl., Exhs. C, J; Nunez Decl., Exh. H.) The Barlettas are not required to produce documents that were not requested in the subpoenas.

As indicated above, it appears as if the parties have reached an agreement on this issue, and that the Barlettas are appearing for their deposotion on 6/4/14. The Court will be happy to hear from counsel regarding the status of this motion.

Sanctions

Plaintiff seeks sanctions against the Barlettas and their attorneys of record in the amount of $3,485.00.

“Except as specified in subdivision (c), in making an order pursuant to motion made under … Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2(a).) The instant motion was not opposed in bad faith. Indeed, it appears that, after their ex parte was denied, the Barlettas attempted to reschedule their depositions. (See Nunez Decl., ¶¶ 17-24.)

Accordingly, the Court declines to impose sanctions