Case Name: John M. Heineke v. Santa Clara University, et al.

Case No: 18CV333011

I. Background
II.

This is an employment discrimination and defamation action brought by plaintiff John Heineke (“Plaintiff”) against defendants Santa Clara University (“SCU”) and Jane Doe (collectively, “Defendants”). Plaintiff alleges seven causes of action for: (1) civil rights violations; (2) age discrimination; (3) wrongful termination; (4) intentional infliction of emotional distress; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; and (7) defamation.

According to the allegations of the complaint, Plaintiff was a tenured economics professor at SCU until he was suspended and terminated by SCU following an investigation into claims of sexual harassment by two students. (Complaint, ¶¶ 6, 26, 33, 36, 43.) Plaintiff alleges that the investigation was biased, and SCU used it as a pretext to terminate Plaintiff because of his age. (Id. at ¶ 43.)

Discovery Dispute

On July 31, 2019, Defendants served Plaintiff a notice of deposition for September 18, 2019. The notice stated testimony would “continue day to day, excepting Saturdays, Sundays and holidays, until completed.” On September 4, 2019, Plaintiff served an objection to the notice of deposition, due to unavailability. Defendants responded with eleven proposed alternative dates for the deposition and indicated that if they did not hear back from Plaintiff, they would schedule the depositions for October 16 and October 17, 2019. Plaintiff failed to respond with proposed dates, so on September 24, 2019, Defendants re-noticed the deposition for the October 16 and 17, 2019 dates. The notice also indicated testimony would “continue day to day, excepting Saturdays, Sundays and holidays, until completed.”

On October 15, 2019, one day before he was scheduled for deposition, Plaintiff informed Defendants he was unavailable. He indicated availability on November 21, 2019. He further objected to two days of deposition, and would not agree to a second day. Defendants responded that as an employment case, two days of deposition was appropriate, and referred Plaintiff to the relevant section of code. Thereafter, Defendants sent a new notice of deposition for November 21, 2019, and November 26, 2019, which again stated testimony would “continue day to day, excepting Saturdays, Sundays and holidays, until completed.”

On November 20, 2019, Plaintiff’s counsel sent Defendants an email stating he was sick and unable to attend the deposition the following day, and failed to confirm availability for the November 26, 2019 date. Plaintiff’s counsel sent a follow up email indicating that Plaintiff was available for deposition testimony on December 18, 2019. Defendants responded by serving a third amended notice of deposition for December 18 and 19, 2019.

Two days before this scheduled deposition, Plaintiff contacted Defendants objecting to a second day of deposition testimony, and also indicated that he was not available on December 19, 2019. After some back and forth through email, Defendants took the deposition “off calendar” and told Plaintiff of their intention to file a motion to compel.

Before the Court is the motion to compel Plaintiff’s deposition. Both Plaintiff and Defendants have requested monetary sanctions.

III. Motion to Compel
IV.

Defendants move to compel two days of deposition testimony by Plaintiff. Plaintiff does not object to the deposition, however, he seeks to limit it to seven hours.

Code of Civil Procedure section 2025.450, subdivision (a) provides that “[i]f after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination or to proceed with it…the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” A valid objection is one based on an error or irregularity in the deposition notice. (Code Civ. Proc., § 2025.410, subd. (a).) If a party objects on other grounds, the party must nevertheless appear for the deposition as noticed, unless the party files a motion to stay the taking of the deposition and quashing the notice or for a protective order. (See Code Civ. Proc., §§ 2025.280, subd. (a), 2025.410, subd. (c), 2025.420.)

Here, Plaintiff failed to appear at the originally noticed deposition, or for the two subsequently noticed depositions. Defendants attempted in good faith to reschedule on dates that were mutually agreeable, and re-noticed for the dates as chosen. While December 18, 2019, was ultimately chosen, Plaintiff objected to two days of testimony, and refused to be present on December 19, 2019. At no time did Plaintiff “nevertheless appear at the deposition” or alternatively “file a motion to stay the taking of the deposition and quashing the notice or for a protective order.” Thus, a motion to compel is warranted.

Furthermore, Plaintiff’s objection to more than one day of deposition testimony is not properly before the Court. Section 2025.290 limits deposition testimony to seven hours total testimony except by court order or where an exception applies. (Code Civ. Proc., § 2025.290, subd. (a).) One exception to the seven hour limit is in a “case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.” (Code Civ. Proc., § 2025.290, subd. (b)(4).)

Plaintiff argues that Defendants bear some burden in establishing that this is an “employment case” and without appropriate authority state that Defendants must obtain a “Court order that SCU reasonably needs more than a day.” However, this is not the law. Instead, Plaintiff bears the burden of filing for a protective order to impose any conditions on the taking of his deposition. (See Code Civ. Proc., § 2025.420.) It is not code-compliant to refuse to appear at a deposition and then lodge objections in opposition to a motion to compel.

Consequently, the motion to compel deposition testimony is GRANTED. Plaintiff shall appear for two days of deposition testimony within 20 days of the filing of this Order, unless otherwise mutually agreed by the parties.

V. Sanctions
VI.

Plaintiff’s request for monetary sanctions is denied as he is not the prevailing party.

The court finds that plaintiff failed to respond to or submit to an authorized method of discovery, and failed to confer in good faith to resolve discovery disputes informally. Accordingly, Defendants’ request for monetary sanctions is granted against Plaintiff in the amount of $1,625, payable to Defendants’ counsel, within 30 days of the filing of this Order. (Code of Civil Procedure section 2023.010, subdivisions (d) and (i).)