Claudia Leon v. Gabriel Guzman, et al.		CASE NO. 113CV249307
DATE: 7 November 2014	TIME: 9:00	LINE NUMBER: 4

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 408.882.6856 and the opposing party no later than 4:00 PM Thursday 6 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 7 November 2014, plaintiff Claudia Leon’s (“Plaintiff”) “Motion to Compel Verification of Discovery Responses and Prohibit Improper Conduct During Deposition” and for an award of monetary sanctions was argued and submitted.  Defendant Gabriel Guzman (“Defendant”) filed a formal opposition to the motion, in which he requests an award of monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

This case arises out of an employment dispute and alleged sexual harassment.  Plaintiff was employed by Defendant as a painter for approximately seven years.  Defendant owns a painting business, Angel’s Painting, which specializes in painting apartments.  During her employment with Defendant, Plaintiff separated from her husband.  When Defendant learned of Plaintiff’s separation, he began propositioning her for sex.  Plaintiff resisted Defendant’s advances and Defendant threatened to withhold painting jobs from her.  Plaintiff then engaged in a sexual relationship with Defendant for approximately seven months.  When Plaintiff eventually refused to have sex with Defendant anymore, Defendant laid her off from work.

On 10 July 2013, Plaintiff filed a complaint against Defendant and his son, defendant Luis Guzman.  Plaintiff filed a first amended complaint (“FAC”) on 10 June 2014, alleging claims for wage and hour violations and sexual harassment.

1. Discovery Dispute

On 19 September 2013, Plaintiff served Defendant with requests for admission, set one (“RFA”), form interrogatories, set one (“FI”), requests for production of documents, set one (“RPD”), and special interrogatories, set one (“SI”).  On 23 October 2013, Defendant served Plaintiff with responses to the RFA, FI, RPD, and SI.  Defendant did not serve Plaintiff with verifications for his responses to the discovery requests.

RFA Nos. 12 and 15 asked Defendant to admit that he had sexual intercourse with Plaintiff at least once during her employment and Plaintiff performed oral sex on him.  In his responses to RFA Nos. 12 and 15, Defendant unequivocally denied engaging in any sexual activity with Plaintiff.   Similarly, in his response to FI No. 17.1, which asked Defendant to state all facts supporting his denials, Defendant stated that he did not have a sexual relationship with Plaintiff.

In December 2013, Defendant served Plaintiff with requests for production of documents.  In response to Defendant’s discovery requests, Plaintiff produced various audio recordings she made that are purportedly of her and Defendant having sex.

On 12 June 2014, Defendant served Plaintiff with formal written objections to the requests for production of documents contained in his deposition notice.

On 17 June 2014, Plaintiff’s counsel took Defendant’s deposition.  At the beginning of the deposition, Defendant testified that he brought documents responsive to the document requests in his deposition notice.  Defendant’s counsel provided Plaintiff’s counsel with the responsive documents at the time of the deposition.  Defendant also testified that his driver’s license was not included in the document production. Defendant’s counsel indicated on the record that Defendant was refusing to produce his driver’s license based on relevancy and privacy objections.  After some further discussion of the issue between counsel, Defendant’s counsel agreed to produce a redacted copy of Defendant’s driver’s license.

Over the course of the deposition, Plaintiff’s counsel asked Defendant several questions about whether he had ever seen RFA Nos. 13-17 before.  Defendant’s counsel objected to each of Plaintiff’s counsel’s questions based on Evidence Code section 940, which provides that a person has a privilege to refuse to disclose any matter that may tend to incriminate him, and instructed Defendant not to answer the questions.

Plaintiff’s counsel also asked Defendant: if he could see his response to RFA No. 13 (which had been marked for the deposition as exhibit 4); whether Defendant admitted or denied RFA No. 13 as of the date of the deposition; and if his 23 October 2013 response denying RFA No. 13 accurately reflected his answer to that discovery request.  Defendant’s counsel objected to Plaintiff’s counsel’s questions based on Evidence Code section 940 and instructed Defendant not to answer the questions.

Additionally, Plaintiff’s counsel asked Defendant if his response to RFA No. 14, which denied the request, was “[his] previous answer to that question.”  (Tran Dec, Ex. 4, p. 69:12.)  Defendant’s counsel objected to Plaintiff’s counsel’s question based on Evidence Code section 940 and instructed Defendant not to answer the question.

Plaintiff’s counsel subsequently stated on the record that Defendant’s counsel had been nodding and shaking his head in response to some of the questions and advised Defendant’s counsel that he would suspend the deposition if Defendant’s counsel continued to do so.

Plaintiff’s counsel continued his questioning of Defendant and asked Defendant if his responses to the RFA, as shown in exhibit 4, reflected his “previous positions” on the RFA.  (Tran Dec., Ex. 4, p. 70:7.)  Defendant’s counsel instructed Defendant not to answer the question pursuant to Evidence Code section 940.  Plaintiff’s counsel then asked Defendant if “[his] current answers to questions 13-19 [were] different than [his] answers listed on Exhibit Number 4.”  (Tran Dec., Ex. 4, p. 70:13-25.)  Defendant’s counsel again instructed Defendant not to answer the question pursuant to Evidence Code section 940.

Immediately thereafter, Plaintiff’s counsel indicated that he was suspending the deposition, which would be continued after he obtains “a ruling for the court regarding the conduct of the Defendant’s attorney and regarding the refusal of the deponent to answer questions in this deposition.”  (Tran Dec., Ex. 4, p. 70:21-25.)  Plaintiff’s counsel also stated that Defendant failed to produce documents responsive to document requests specified in the deposition notice and Plaintiff would seek a ruling from the court on that issue as well.  Plaintiff’s counsel and Defendant’s counsel then met and conferred on the record and were unable to resolve their dispute.

After the deposition was suspended, the parties continued their meet and confer efforts.  On 1 July 2014, Plaintiff’s counsel sent Defendant’s counsel an email, asking him to provide Plaintiff with verifications for Defendant’s 23 October 2013 responses to the RFA, FI, RPD, and SI.  Defendant’s counsel replied via email on the same day, stating that he would send Plaintiff verified amended responses to the discovery requests and a redacted copy of Defendant’s driver’s license after he returned from vacation on 19 July 2014.

Plaintiff’s counsel sent Defendant’s counsel a follow-up email on 22 July 2014, indicating that Plaintiff had not received the verified amended discovery responses, a redacted copy of Defendant’s driver’s license, or copies of the documents that Defendant brought to his deposition.

On 1 August 2014, Defendant served Plaintiff with verified amended responses to the FI, SI, and RFA, as well as a verification for his original responses to the RPD.   In his amended responses to RFA Nos. 12 and 15, Defendant admitted that he engaged in sexual activity with Plaintiff and Plaintiff performed oral sex on him.  Additionally, in his amended response to FI No. 17.1, Defendant stated that all sexual activity between him and Plaintiff was consensual.

On the same day, Plaintiff’s counsel emailed Defendant’s counsel and requested verifications for Defendant’s original responses to the FI, SI, and RFA.

On 30 September 2014, Plaintiff filed the instant “Motion to Compel Verification of Discovery Responses and Prohibit Improper Conduct During Deposition.”   Defendant filed papers in opposition to the motion on 27 October 2014.  Plaintiff filed a reply on 31 October 2014.

III.     Discussion

In her motion, Plaintiff moves for a court order: (1) compelling Defendant to provide verifications for his original 23 October 2013 responses to RFA, FI, and SI; (2) appointing a discovery referee to supervise Defendant’s deposition; and (3) compelling Defendant “to produce the documents that he brought with him to his deposition, but took with him when the deposition ended” and an unredacted copy of Defendant’s driver’s license.  (Mem. Ps & As., p. 2-3.)

1. Defendant’s Evidentiary Objections

Defendant objects on the grounds of hearsay, improper opinion, speculation, and lack of foundation to portions of the declaration of Plaintiff’s counsel, Huy Tran, as well as the exhibits attached thereto that were submitted by Plaintiff in support of her discovery motion.  There is no authority holding that the Court must rule on an evidentiary objection made in connection with a discovery motion.  Furthermore, the declaration is not necessary to the Court’s resolution of the pending issues.

Accordingly, the Court declines to rule on Defendant’s evidentiary objections.            

1. Nature of the “Motion to Compel Verification of Discovery Responses and Prohibit Improper                Conduct During Deposition”

As a preliminary matter, Plaintiff does not cite any statutory authority as the basis for her motion.  However, it appears that the instant discovery motion is in fact three separate and distinct motions: (1) a motion to compel production of a verification; (2) a motion for appointment of a discovery referee; and (3) a motion to compel production of documents specified in a deposition notice.  Therefore, each of the above-noted motions is addressed separately below.       

1. Motion for Order Compelling Defendant to Provide Verifications for his Original Discovery                                      Responses

As a preliminary matter and one not addressed by the parties, there is no statutory authority that permits Plaintiff to move for an order compelling the production of verifications for Defendant’s 23 October 2013 responses to the FI, SI, and RFA.

In her papers, Plaintiff appears to suggest that her request for an order compelling production of verifications is properly brought under statutes that allow for motions to compel initial responses.  (See Mem. Ps & A., p. 5:14-22.)

However, there is no statutory authority that permits a party to move to compel initial responses to requests for admission as Code of Civil Procedure section 2033.280 provides only that the propounding party may move to deem the requests admitted if the responding party has not served timely responses.  (Code Civ. Proc., § 2033.280, subd. (b).)            Plaintiff did not move to deem admitted the RFA.  While Plaintiff states for the first time in her reply papers that the Court should “in the alternative deem [the RFA] admitted,” Plaintiff failed to file a properly noticed motion seeking such relief.  (Reply, p. 3:5-6; see also Code Civ. Proc., § 2033.280, subd. (b) [providing that if a party to whom requests for admission are directed fails to serve a timely response the requesting party may move for an order that the truth of any matters specified in the requests be deemed admitted].)  This Court has also researched into this matter to determine if this motion could be classified as one seeking an order to compel Defendant to provide further response to the requests for admissions under Code of Civil Procedure, § 2033.290.  Two reasons preclude this Court from doing so.  First, the statute refers to “one receipt of a response” under subdivision (a).  Unverified responses are not responses.  Second, the objection is to the verification, not that the answer to a particular request is evasive or incomplete, or that an objection to a particular request is without merit or too general.  (Code of Civil Procedure, § 2033.290(a)(1-2).Even if the Court were to construe the instant motion as one to deem the RFA admitted, the motion would fail because Defendant served Plaintiff with verified, substantially code-compliant responses to the RFA on 1 August 2014.  (See Code Civ. Proc., § 2033.280, subd. (c) [providing that a motion to deem matters admitted shall not be granted if the party to whom the requests for admission were directed served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance Code of Civil Procedure section 2033.220].)

Additionally, while there is a statute allowing a party to move to compel initial responses to interrogatories—Code of Civil Procedure section 2030.290—Defendant served Plaintiff with verified responses to the FI and SI on 1 August 2014.  Since Defendant’s 23 October 2013 responses were unverified and tantamount to no response at all, the responses provided on 1 August 2014 constitute initial responses to the FI and SI.  (See Appleton v. Super. Ct. (Cook) (1988) 206 Cal.App.3d 632, 635 -636 [unsworn responses are tantamount to no responses at all].)

Furthermore, Defendant raises the interesting argument that since he concedes that his 23 October 2013 responses were inaccurate, he “cannot verify the prior inaccurate responses without committing perjury (Penal Code section 118).”  Defendant contends that the Court cannot order him to verify the 23 October 2013 responses, which he knows are incorrect, because such an order would violate his state and federal constitutional rights against self incrimination.  The Court is loathe to make an order that would require Defendant to commit acts that would subject him to potentially serious penalties, particularly when Plaintiff has not cited any legal precedent in which a court has made such an order.

Accordingly, for the foregoing reasons, Plaintiff’s motion to compel production of verifications for Defendant’s 23 October 2013 responses to the FI, SI, and RFA is DENIED.

1. Motion for an Order Appointing a Discovery Referee

As indicated above, Plaintiff moves for an order appointing a discovery referee to supervise Defendant’s deposition.

1. Legal Standard

A motion to appoint a discovery referee may be made pursuant to Code of Civil Procedure 639, subdivision (a).  Code of Civil Procedure 639, subdivision (a)(5) provides: “When the parties do not consent, the court may, upon the written motion of any party … appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”

Discovery referees are not granted lightly.  (See e.g. Taggares v. Super. Ct. (1998) 62 Cal.App.4th 94, 105.)  “Unless both parties have agreed to a referee, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present.”  (Id.)  The factors favoring reference include: “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.”  (Id.)

Additionally, a discovery referee actually increases the work burden for this Court.  On a motion pertaining to a manner referred to a discovery, the Court would have to review the moving papers and the report of the referee unless the parties stipulated otherwise.

2.             Analysis

Plaintiff argues that the appointment of a discovery referee to supervise Defendant’s deposition is warranted because Defendant’s counsel was disruptive and interfered with his counsel’s questioning.  Plaintiff contends that it was improper for Defendant’s counsel to instruct Defendant not to answer any of the questions relating to Defendant’s 23 October 2013 discovery responses based on Evidence Code section 940.  Plaintiff also contends that Defendant’s counsel improperly made speaking objections and coached Defendant by nodding his head up and down before Defendant responded to some of the deposition questions.

Conversely, Defendant argues that a discovery referee is not warranted because there are no exceptional circumstances for which a referee would be required.

Plaintiff has failed to establish that appointment of a discovery referee is warranted in the present case.  Plaintiff does not address any of the factors that are relevant to the Court’s determination of whether a discovery referee is warranted or otherwise demonstrate that this is an exceptional case where a discovery referee is necessary.  (See Taggares v. Super. Ct., supra, 62 Cal.App.4th at p. 105.)

If Plaintiff believed that Defendant’s counsel’s objections to the deposition questions and instructions to Defendant not to answer based on Evidence Code section 940 were improper, Plaintiff’s remedy was to file a motion to compel answers to the deposition questions pursuant to Code of Civil Procedure section 2025.480.  (See Code Civ. Proc., § 2025.480, subd. (a) [“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”].)

Additionally, while Plaintiff is correct that Defendant’s counsel made speaking objections on a few occasions (see Tran Dec., Ex. 4, pp. 66:17-24, 68:1-11), they were not so pervasive or frequent as to obstruct Plaintiff’s counsel’s ability to depose Defendant.

Moreover, it does not appear that Defendant’s counsel’s head shaking and/or nodding constituted coaching of Defendant.  At the 17 June 2014 deposition, Plaintiff’s counsel stated “[l]et the record reflect that in answer to the last two questions [Defendant’s counsel] was nodding his head and shaking his head.”  (Tran Dec., Ex. 4, p. 69:18-20.)  The two preceding questions and responses were as follows: “[By Plaintiff’s Counsel:] Q.  Was that your previous answer to that question?  [Defendant’s Counsel]: I instruct the witness not to answer pursuant to Evidence Code §940.  [By Plaintiff’s Counsel:] Q.  Are you going to follow your attorney’s advice?  A. Yes.”  (Tran Dec., Ex. 4, p. 69:12-17.)  Defendant’s counsel declares that “[o]n two occasions … [he] nodded [his] head up and down when Mr. Guzman asked [him] if he wanted [Mr. Guzman] to answer the question because [Mr. Guzman] did not know whether or not [he] was instructing [Mr. Guzman] not to answer” and he “was not signaling the answer to [Mr. Guzman] … only that it was [his] advice that [Mr. Guzman] answer that question.”  (Davis Dec., ¶ 9.)  Thus, based on the deposition transcript and Defendant’s counsel’s declaration, the purported head shaking and/or nodding concerned Defendant’s counsel’s instructions to Defendant that he either should or should not answer the question.  Such an instruction is permissible and does not improperly coach the witness (i.e., suggest an answer to a substantive question).

Accordingly, Plaintiff’s motion for the appointment of a discovery referee is DENIED.

1. Motion for an Order Compelling Defendant to Produce Documents Specified in a Deposition Notice

Plaintiff moves for an order compelling Defendant to produce documents that were specified in Defendant’s deposition notice including: the responsive documents that Defendant brought to the deposition, but took with him once the deposition concluded; and an unredacted copy of Defendant’s driver’s license.

1. Legal Standard

If a deponent fails to answer or produce documents specified in the deposition notice at a deposition, the party seeking discovery may move to compel the production of the documents.  (See Code Civ. Proc., § 2025.480, subd. (a).)  A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause.  (See Code Civ. Proc., § 2025.480, subd. (a).)  If good cause is shown, the burden shifts to the responding party to justify any objections.  (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)

2. Defendant’s Driver’s License

Plaintiff argues that she is entitled to an unredacted copy of Defendant’s driver’s license in order to establish his identity and his current address.  Plaintiff further argues that the information on Defendant’s driver’s license is public and, therefore, there is no need for any of it to be redacted.

Conversely, Defendant argues that he timely objected to the document requests in the deposition notice that asked for a copy of his driver’s license.  Defendant also argues that some of the information contained in his driver’s license is protected by his right to privacy.  Defendant further asserts that the redacted copy of his driver’s license that he produced to Plaintiff shows his full name and address and only redacts his driver’s license number, which is not relevant to the instant case.

As a preliminary matter and though not addressed by the parties, Plaintiff failed to provide the Court with a separate statement setting forth the particular documents or demands at issue, the responses received, and the reasons why production should be compelled as required by California Rules of Court, rule 3.1345(a)(5).  (See Cal. Rules of Court, rule 3.1345(a)(5) [“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: … [t]o compel or to quash the production of documents or tangible things at a deposition”].)

Additionally, Plaintiff does not provide the Court with a copy of the deposition notice or Defendant’s formal written objections to requests in the deposition notice, which were previously served on Plaintiff.

Without the separate statement, the Court cannot determine which request, if any, in the deposition notice demanded that Defendant produce a copy of his driver’s license.  Similarly, the Court cannot determine if Defendant appropriately raised his privacy objection in his objections to the requests.

Notwithstanding Plaintiff’s failure to file a separate statement, the Court finds that Plaintiff has not established good cause for the discovery sought.  Plaintiff contends that she needs an unredacted copy of Defendant’s driver’s license solely to confirm Defendant’s identity and address.  However, the redacted copy of Defendant’s driver’s license that Defendant produced to Plaintiff shows his full name and his address.  The only information that is redacted is his driver’s license number.  Thus, it appears that Plaintiff already has the information that she desires and she does not establish how knowledge of Defendant’s driver’s license number will provide her with any further relevant information.

Accordingly, the motion to compel production of documents specified in Defendant’s deposition notice is DENIED as to the request for an unredacted copy of Defendant’s driver’s license.

3. Documents Brought to Defendant’s Deposition

Plaintiff argues that the Court should compel Defendant to produce the documents that he brought with him to his deposition that were responsive to the document requests specified in the deposition notice because Defendant agreed to produce the same.  Plaintiff contends that Defendant took those documents with him at the conclusion of his deposition and has not provided her with a copy of the same.

In his opposition, Defendant states that at the time of his deposition he offered Plaintiff copies of the documents that he brought with him, but Plaintiff’s counsel refused to take them.  Defendant further states that after Plaintiff filed the instant motion, he sent Plaintiff a copy of the documents.

In her reply papers, Plaintiff states that Defendant has now produced a copy of the documents that he brought with him to his deposition and her motion to compel the production of the same is moot.

Accordingly, Plaintiff’s motion to compel the production of documents specified in Defendant’s deposition notice is MOOT as to the documents that Defendant brought to his deposition.

1. Requests for Monetary Sanctions

Both Plaintiff and Defendant make requests for monetary sanctions.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

CEB, California Civil Discovery Practice, §15.46a: “Notice of Motion and Motion” states: “As a practical matter, the motion and notice of motion are usually combined into one document entitled ‘Notice of Motion and Motion to Compel.’  The motion, an application to a court to make an order (Code of Civil Procedure, § 1003), must contain all of the following (Cal Rules of Ct 3.1112(d)):

• Identity of the party or parties bringing the motion;
• Name of the parties to whom the motion is addressed; and
• Brief statement of the basis for the motion and the relief sought, including whether the moving party requests sanctions, against whom the sanction is sought and the type of sanctions (CCP §2023.040).

The notice of motion must contain all of the following information (CCP §1010):

• Date, time, and place of the hearing;
• Grounds on which the motion is being made, including whether the moving party requests sanctions, against whom the sanction is sought, and the type of sanctions (CCP §2023.040); and
• Papers and other items supporting the motion.

In addition, the notice of motion must state ‘in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.  Cal Rules of Ct 3.1110(a).

All relief sought by the motion, including whether the moving party requests sanctions, should be stated in the notice of motion and, if possible, identified in the title of the motion, not just argued in the supporting memorandum.”

1. Plaintiff’s Request

In her memorandum of points and authorities, Plaintiff requests that the Court impose a monetary sanction against Defendant and his counsel in the amount of $5,943.

Plaintiff fails to state in her notice of motion that she is requesting any sanctions whatsoever.  (See Code Civ. Proc. § 2023.040 [a request for sanctions must be made in the notice of motion, identifying every person, party, and attorney against whom the sanction is sought, and specify the type of sanction.].)  Furthermore, Plaintiff fails to cite any statutory basis in support of her request for monetary sanctions.

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

2. Defendant’s Request

Defendant requests that the Court impose a monetary sanction against Plaintiff and her counsel in the amount of $3,093.75.

Defendant fails to cite any statutory authority in support of his request for monetary sanctions.

Accordingly, Defendant’s request for monetary sanctions is DENIED.

 

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1. Conclusion and Order

Plaintiff’s motion for an order compelling Defendant to provide verifications for his original 23 October 2013 responses to RFA, FI, and SI, appointing a discovery referee to supervise Defendant’s deposition, and compelling Defendant to produce an unredacted copy of his driver’s license is DENIED.  In addition, Plaintiff’s motion for an order compelling production of the documents that Defendant brought to his deposition is MOOT.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.  An index to exhibits must be provided.  Pages from a single deposition and associated exhibits must be designated as a single exhibit.”