Case Name: Jane Doe v. Santa Clara Unified School District, et al.
Case No.: 2014-1-CV-265725

Motion to Compel Attendance at Deposition by Plaintiff Jane Doe

Factual and Procedural Background

This case involves multiple occurrences of sexual molestation, abuse, harassment, assault and battery on plaintiff Jane Doe (“Plaintiff”), formerly a minor, from approximately 2012 through September 2013. (See Complaint at ¶¶ 1, 11.) Plaintiff was allegedly the victim of unlawful sexual abuse and molestation and other misconduct by her teacher, Hugo Cortez Guzman (“Mr. Guzman”). (Id. at ¶ 1.) Mr. Guzman is currently facing criminal charges brought by the County of Santa Clara, including unlawful sexual intercourse with a minor, a violation of California Penal Code section 261.5, subdivision (a). (Id. at ¶ 5.) Plaintiff alleges that defendant Santa Clara Unified School District (“District”) breached its duty to adequately investigate, hire, train, and supervise the teacher and to protect Plaintiff from harm. (Id. at ¶¶ 26-41.) Plaintiff also claims that the District created a dangerous condition at the high school by failing to maintain, inspect, secure, manage, and supervise the school premises. (Id. at ¶¶ 42-47.)

On May 23, 2014, Plaintiff filed the operative complaint against defendants setting forth causes of action for: (1) negligence; (2) dangerous condition of public property; and (3) negligence. Thereafter, the District filed its answer asserting various affirmative defenses.

On July 21, 2015, Plaintiff served the District with the Notice of Deposition of Jerry Little (“Mr. Little”), a janitor employed by the District, and Request for Production of Documents. (See Declaration of Mary E. Alexander at ¶ 2; Exhibit 1.) The deposition was set for August 24, 2015. (Ibid.) Mr. Little failed to appear and testify at deposition. (Ibid.)

The deposition was reset to December 9, 2015. (See Declaration of Mary E. Alexander at ¶ 3.) Counsel for the District canceled the deposition as they would be unavailable due to trial in another matter. (Id. at ¶ 3; Exhibit 2.) Thus, the District offered to reschedule the deposition to either December 18th or 21st. (Ibid.) Plaintiff agreed to reschedule Mr. Little’s deposition to December 21, 2015. (Ibid.) Thereafter, the District indefinitely postponed Mr. Little’s deposition as he has been diagnosed with cancer and is undergoing chemotherapy treatments. (Ibid.) Despite further attempts to meet and confer, the parties have been unable to schedule Mr. Little’s deposition and thus Plaintiff now seeks intervention from the Court. (Id. at ¶¶ 4-6; Exhibits 3-5.)

Currently before the Court is Plaintiff’s motion to compel the deposition of Mr. Little under Code of Civil Procedure section 2025.450. The District has filed written opposition. Plaintiff has filed reply papers.
Motion to Compel Deposition

Plaintiff moves to compel Mr. Little’s attendance and testimony at deposition because he has information that is directly relevant or likely to lead to the discovery of admissible evidence in this case.

Legal Standard

If after service of a deposition notice, the party fails to appear for examination, without having served a valid objection under Code of Civil Procedure Section 2025.410, the party giving the deposition notice may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450.)

Analysis

Plaintiff moves to compel the deposition of Mr. Little because he allegedly has information about the District’s knowledge and notice of the inappropriate relationship between Mr. Guzman and the Plaintiff. Plaintiff also claims that Mr. Little is an eyewitness to the behavior of Mr. Guzman and the Plaintiff. The District does not dispute that Mr. Little has information relevant to this case. Rather, the District argues that Mr. Little is unavailable for deposition due to his cancer and chemotherapy treatments. In support, the opposition includes a letter from Mr. Little’s doctor stating that Mr. Little has stage IIIC colon cancer, that he is undergoing chemotherapy treatments that result in side effects, and that it would be difficult physically and emotionally for him to attend a deposition since the stress may result in additional complications. (See Declaration of Mark E. Davis at Exhibit A.)

However, Plaintiff has indicated that any deposition of Mr. Little would be subject to reasonable accommodations with respect to his cancer treatments. (See Reply Brief at pp. 2-3.) This would include limiting the deposition to no more than two hours, allowing for multiple breaks when necessary, and conducting the deposition at his home. (Ibid.) Plaintiff’s opposition fails to address why any such accommodations would be insufficient in taking Mr. Little’s deposition. Also, Plaintiff’s out of state authorities regarding unavailability of a witness due to illness are not binding on this Court, and more importantly, involve criminal cases rather than deposition notices in a civil case. Furthermore, based on a showing of good cause, California law allows a party to put limitations on a deposition by way of a protective order under Code of Civil Procedure section 2025.420, subdivision (b). For example, subsection (5) of the statute allows for a deposition to be taken only on certain specified terms and conditions. (See Code Civ. Proc., § 2025.420, subd. (b)(5).)

As the District did not pursue a protective order and Mr. Little did not appear for his deposition, the motion to compel Mr. Little’s deposition is GRANTED as follows: (1) Mr. Little is ordered to appear and be deposed within 7 calendar days of this Order, at a date and time that is mutually agreed upon by the parties; (2) The deposition shall not exceed two hours in length; and (3) Mr. Little shall be given reasonable breaks and the option of having the deposition taken at his home.