On 28 February 2014, the motion of plaintiff Lien Tran to compel the Deposition of Tran Thi Bich Tuyat and for monetary sanctions was argued and submitted. Defendants, Khai Dong, 2643 Dentistry, Inc., and Thao Tran did not file formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Background

Plaintiff Lien Tran (“Plaintiff”) filed a complaint against Khai Dong, 2643 Dentistry, Inc. and Thao Tran (“Defendants”) alleging sexual harassment, sex battery, sex discrimination, retaliation, wrongful termination, unpaid wages, and unfair business practices. Plaintiff was employed with some of the Defendants from November 2010 to August 2012.

Discovery Dispute

On 26 November 2013, Plaintiff served a deposition subpoena on Tran Thi Bich Tuyat aka Tuyet B. Tran (“Deponent”). The Deponent is the wife of Tai Duc Doan who is a dentist at 2643 Dentistry, Inc. During the deposition of Tai Duc Doan, it was revealed that Dr. Doan’s wife, the Deponent, assisted her husband at the dental office by contacting patients and helping with the bookkeeping. Plaintiff also alleges that the Deponent is a witness to the acts committed in the complaint.

On 18 December 2013, the Deponent failed to appear for her scheduled deposition.

Counsel for Plaintiff made several phone calls to Deponent attempting to reschedule the Deposition, but has been unable to reschedule Deponent’s deposition. (See Declaration of Cary Kletter, ¶ 9.)

Plaintiff filed this motion with the Court on 17 January 2014.

On 18 January 2014, Defendant 2643 Dentistry Inc., filed for Bankruptcy.

Discussion

A. Bankruptcy.

11 U.S.C. § 362(a)(1) (Bankruptcy) reads in relevant part:

“[A] petition filed under section 301, 302, or 303 of this title… operates as a stay, applicable to all entities, of (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.”.

Although the automatic bankruptcy stay has broad applications, it was intended by Congress to apply to the debtor only, and not to others (Ripley v. Mulroy 80 B.R. 17, 19.) The definition of “debtor” in this section recognizes corporations as a party. (Id.) Since the bankruptcy action applies solely to Defendant 2643 Dentistry Inc., the automatic stay does not include the other Defendants listed in this action. (Id.)

B. Plaintiff’s Motion to Compel the Deposition of Tran Thi Bich Tuyat aka Tuyet B. Tran.

Code of Civil Procedure § 2025.450(a) states,

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 prejudice 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, . . .

Plaintiff incorrectly cites to Code of Civil Procedure § 2025.480(b) as a basis for Plaintiff’s motion. That code section sets forth the procedure wherein a deponent appears for a deposition, but refuses or fails to answer a legitimate question or fails to produce documents in compliance with the deposition notice.

Despite Plaintiff’s failure to cite to the correct authority, the Court will nonetheless address the merits of the motion pursuant to Code of Civil Procedure § 2025.450(a).

Here, Plaintiff served a properly noticed deposition and scheduled the deposition to be held on December 18, 2014. The Deponent did not appear for the deposition. Plaintiff believes that the Deponent is a key witness in this case, because the Deponent is a witness to the acts committed in the complaint, has knowledge respecting Plaintiff’s alleged damages, and is familiar with the practices in the dental office.

Plaintiff’s motion to compel the deposition of is GRANTED. Plaintiffs shall submit to a deposition within 45 days of this order.

C. Monetary Sanctions.

Plaintiff makes a request for monetary sanctions. The request is not code-compliant.

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.”

See also Rule of Court 2.30(c): “Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court’s own motion after the court has provided notice and an opportunity to be heard. A party’s motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.”

Plaintiff fails to cite to Code of Civil Procedure § 2025.450(g)(1) and Rule of Court 3.1348(a). Since their request is not supported by the applicable points and authorities, Plaintiff’s request for monetary sanctions is DENIED.