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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 29 August 2014, the motion of Defendant TC Home Care, Inc. (“Defendant”) for monetary sanctions, issue sanctions and to authorize a new deposition of Plaintiff Jennifer Phillips was argued and submitted.  Plaintiff Jennifer Phillips filed formal opposition to the motion.

Background

This matter arises out of a wage and hour claim whereby Plaintiff alleges that she was not paid for hours worked and that she was improperly discharged from her duties. Defendants are controllers of an elderly home care facility and the facility itself. Plaintiff is Defendant Theresa R. Carr-Ogle’s niece. Ms. Carr-Ogle allowed Plaintiff to stay and sleep at facilities where Plaintiff worked, rather than go home.

On 8 May 2014, Plaintiff Jennifer Phillips sat for deposition. During the deposition, Plaintiff’s counsel raised numerous objections, purportedly around 110 during the three and a half hour deposition. On 5 August 2014, Defendant filed the instant motion alleging that Plaintiff’s counsel’s conduct was inappropriate and sought monetary and issue sanctions, or in the alternative, a second deposition with a discovery referee.

Request for Monetary and Issue Sanctions

Defendant makes a request for monetary and issue sanctions under Code of Civil Procedure Sections 2023.010 and 2023.030. This request is not code-compliant.

Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (emphasis added). As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Defendant does not identify which chapter governs the discovery method in question. Presumably, Defendant seeks relief under Section 2025.480, which provides that it may make a motion to compel answers to particular questions raised in the deposition. However, the motion before the Court is not a motion brought under Section 2025.480. There is no citation to authority referencing that section, nor is there the required separate statement that would allow the Court to review the merits of each claimed deficient objection and give the Plaintiff notice to properly respond to the claimed objections. See Cal. Rules of Court, rule 3.1345.

Defendant’s request for monetary sanctions and issue sanctions is DENIED.

Motion for Further Deposition

Defendant makes a request to take a second deposition of Plaintiff.

Upon a showing of good cause, a court may grant leave to a party to take a second deposition. Code Civ. Proc. §2025.610(b).

The Court does not have enough before it to determine that good cause exists to take a second deposition. Defendant focused its motion on the issue of sanctions, seeking a new deposition almost as an afterthought. Plaintiff’s counsel did make objections, but as noted, supra, Defendant did not provide a separate statement to allow the Court to evaluate them in depth. Defendant did not stop the deposition to seek a protective order to stop counsel’s perceived abuses. In short, Defendant’s moving papers did not demonstrate that Defendant met its burden to demonstrate good cause.

In spite of this, the Court does have concerns about Plaintiff’s counsel’s numerous objections. Defendant asserts 110 objections in three and a half hours. That equates to one almost every two minutes. Plaintiff’s counsel asserts, in argument without citation, that it is standard practice to over-object. That statement indicates that counsel knew that some of his objections were unmeritorious. Plaintiff’s opposition papers demonstrate that Defendant’s allegation that Plaintiff may have been making improper objections is likely. The attention of all counsel is directed to Code of Civil Procedure, § 2023.010 (b)(c) and (e).

The Court believes good cause exists to allow further deposition of Jennifer Phillips. As both sides have indicated, there were two more hours available on the date of the deposition. The Court believes this to be a reasonable time to correct any deposition errors that counsels’ activities may have created. The Court reminds counsel of their responsibilities both as advocates, but also as officers of the court in terms of both demeanor and objections.

Defendant requested a discovery referee in relation to a second deposition. No argument was made in this regard and the Court will decline to appoint one.

Defendant’s motion for leave for a second deposition of Jennifer Phillips is GRANTED IN PART. This deposition will last a maximum of two hours at a time and location agreed upon between counsel. No discovery referee will be appointed at this time.

Conclusion and Order

Defendant’s request for monetary sanctions and issue sanctions is DENIED.

Defendant’s motion for leave for a second deposition of Jennifer Phillips is GRANTED IN PART. This deposition will last a maximum of two hours at a code compliant time and location agreed upon between counsel. No discovery referee will be appointed at this time.