Case Number: 19STCV08311 Hearing Date: February 28, 2020 Dept: 34

SUBJECT: Motion to Compel Deposition Attendance

Moving Party: Plaintiff Joyce Allen

Resp. Party: Defendant Staples Contract & Commercial, LLC

Plaintiff’s motion to compel deposition attendance is DENIED as moot.

Plaintiff’s request for sanctions is DENIED.

Defendant’s request for sanctions against Plaintiff and her counsel is GRANTED in the amount of $1,916.75.

BACKGROUND:

On March 11, 2019, Plaintiff Joyce Allen commenced this action against Defendants Staples, Inc., Staples Contract & Commercial, LLC, Jeffrey Roman Narlock, and Charisse Clay for (1) Equal Pay Act violation; (2) discrimination based on gender; (3) unlawful sexual harassment in violation of FEHA; (4) failure to prevent discrimination and retaliation; (5) retaliation; (6) sexual assault and battery; and (7) wrongful termination in violation of public policy.

Plaintiff alleges that when she was promoted to a Field Sales Director, Defendants did not treat her the same as the other male Field Sales Directors and compensated her less than similarly situated males. (Complaint, ¶ 28, 29, 34.) Plaintiff also alleges that upon her promotion to an Area Sales Manager, Defendants subjected Plaintiff to regular, continuous, and unwanted discriminatory and harassing conduct, including of a sexual nature, and constituting sexual assault. (Id. at ¶¶ 40-53, 56-64, 69, 71.)

On July 25, 2019, in response to a protective order Defendants Staples Inc. and Staples Contract & Commercial, LLC filed against Plaintiff and her special interrogatories, the Court ordered the parties to meet and confer regarding the special interrogatories and then schedule an informal discovery conference with the Court if necessary.

On October 17, 2019, the Court granted Plaintiff’s seven motions to compel discovery.

On December 13, 2019, the Court granted Defendant Staples Contract & Commercial, LLC’s ex parte application to compel deposition attendance of Plaintiff.

On January 31, 2020, the Court granted Staples Contract & Commercial, LLC’s ex parte application for an order shortening time on Defendant Staples Contract & Commercial, LLC’s motion for protective order filed on January 30, 2020.

On February 10, 2020, the Court granted in part Staples Contract & Commercial, LLC’s motion for protective order.

Before the Court is Plaintiff’s motion to compel Defendant Staples Contract & Commercial, LLC’s Person Most Qualified to attend deposition and request for sanctions.

ANALYSIS:

A. Relevant Law

The service of a deposition notice under Code of Civil Procedure section 2025.240 is effective to require any deponent who is a party to the action to attend and testify. (Code Civ. Proc., § 2025.280, subd. (a).) Code of Civil Procedure section 2025.450, subdivision (a) states in relevant part:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce the documents, electronically stores information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

1. Compelling Attendance

Plaintiff moves for “an order compelling Defendant Staples Contract & Commercial, LLC’s Person Most Qualified to attend deposition and provide testimony on dates determined by the Court.” (Notice of Motion, p. 2:3-5.) Plaintiff asserts that “(1) Staples failed to attend deposition despite proper notice and without proper objection; and (2) counsel for Staples has engaged in a pattern of failing to provide dates for Staples’ deposition.” (Motion, p. 1:3-6 [citing McNally Decl., ¶¶ 3-4].)

Plaintiff states that the deposition was noticed for November 18, 2019 and Staples did not attend. (Id. at p. 1:24-25 [citing McNally Decl., ¶¶ 3-4].) Staples objected “to the notice based on the allegation that he deposition of Staples was set before the deposition of Plaintiff and it sought information protected by the attorney client privilege.” (Id. at p. 2:1-3 [citing McNally Decl., ¶¶ 3-4].) Plaintiff maintains that Staples simply made no appearance. (Id. at p. 2:3-6.)

In opposition, Staples argues that “the instant motion is moot, as the PMQ deposition which is subject of this motion, has already occurred.” (Opp., p. 4:22-23.) Staples maintains that “three different PMQ witnesses flew in from out of state to sit for their deposition in Plaintiff’s counsels’ office” and “at this time, there is no further outstanding request from Plaintiff in dispute for a PMQ deposition.” (Id. at p. 4:23-25.) Staples asserts that “on November 22, 2019, the parties agreed to deposition dates for the PMQ witnesses” and PMQ depositions took place on December 10, 2019, January 7, 2020, and January 8, 2020. (Id. at p. 3:14-17, 3:21-23, citing Charles Decl., ¶¶ 2, 4, Ex. A.)

As these depositions already took place, there is no need to compel the Staples’ PMQ’s attendance at a deposition. Accordingly, the Court DENIES this motion as moot.

2. Sanctions

Plaintiff requests sanctions against Defendant Staples Contract & Commercial, LLC and their counsel in the amount of $1,310.00. (Notice of Motion, p. 2:5-7.) Plaintiff’s counsel’s hourly rate is $400.00 and spent two hours preparing the motion. (McNally Decl., ¶ 7.) Plaintiff’s counsel also declares that the cost of the motion is $60.00 and the court reporter cost for the certificate of non-appearance is $450.00. (Id. at ¶ 8.)

As the Court denies this motion, Plaintiff’s request for sanctions pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1) is also DENIED.

In its opposition, Staples argues that Plaintiff and her counsel should be sanctioned in the amount of $3,123.75 for “Plaintiff and her counsel’s continued unwillingness to litigate professionally, and coupled with the fact that Plaintiff continued the hearing to the same date as Defendant’s deadline to file a dispositive motion.” (Opp., p. 5:11-13, 5:15-16.) Staples argues that sanctions are warranted because “this motion can only be reasonably interpreted as just another unabashed attempt to further delay Defendant’s efforts at addressing the substance of this case.” (Id. at p. 5:13-15.)

Code of Civil Procedure section 2023.010(h) provides for sanctions for misuses of the discovery process, including making, unsuccessfully and without substantial justification, a motion to compel discovery. Code of Civil Procedure section 2023.030(a) provides:

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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 Civ. Proc., § 2023.030(a).)

The Court finds that Plaintiff unsuccessfully brought this motion to compel deposition attendance without substantial justification because Plaintiff brought this motion without meeting and conferring in good faith and the deposition dates were decided upon two days after this motion was filed. (See Charles Decl., ¶¶ 2-3, Ex. A.) Therefore, sanctions against Plaintiff and her counsel are warranted.

However, Defendant’s request for sanctions in the amount of $3,123.75 is excessive. Defendant’s counsel Cassidy Veal asserts she spent 3.5 hours drafting the memorandum of points and authorities at a rate of $289 per hour. (Veal Decl., ¶ 2.) Defendant’s counsel Neil Eddington asserts he spent 7 hours on the memorandum of points and authorities, supporting documents, and exhibits, at a rate of $301.75 per hour. The Court finds that 3.5 hours at a rate of $289.00 and 3 hours at a rate of $301.75 is reasonable. The Court GRANTS Defendant’s request for sanctions against Plaintiff and her counsel in the amount of $1,916.75.