Case Number: BC699909 Hearing Date: December 27, 2019 Dept: 47

Michael Hoffman v. The Men’s Warehouse, Inc., et al.

MOTION TO QUASH NOTICES OF DEPOSITION OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER

MOVING PARTY: Defendant The Men’s Wearhouse, Inc.

RESPONDING PARTY(S): Plaintiff Michael Hoffmann

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges discrimination based on age and sexual orientation. Plaintiff also alleges whistleblower retaliation, constructive termination, emotional distress and defamation.

Defendant moves to quash deposition notices for three individuals: Eugene Ryan, Louis Carpentier, and Joel Schultz. On November 14, 2019, the Court granted the protective order and stayed the depositions pending this hearing.

TENTATIVE RULING:

Defendant The Men’s Wearhouse, Inc.’s motion to quash notices of deposition is GRANTED as to the deposition notice for Joel Schultz.

Defendant’s alternative motion for a protective order is DENIED AS MOOT as to Joel Schultz and is DENIED as to Louis Carpentier and Eugene Ryan.

The Court finds that an award of sanctions in connection with making or opposing this motion would be unjust and declines to award sanctions to either party.

DISCUSSION:

Motion To Quash Notices of Deposition

Three Motions in One (Not Including the Proper Alternative Motion for Protective Order)

At the outset, the Court notes that this motion is three motions in one: Defendant seeks to quash three separate notices of deposition. Defendant does make some overlapping arguments about these notices, but often that is inappropriate, given that the three potential deponents are not identical in every relevant way.

In the future, moving party is ordered to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

Be that as it may, the Court will still exercise its discretion to hear all three motions, but this order will not become effective until moving party pays an additional $120 in filing fees.

Meet and Confer Requirement

The Declaration of Cory D. Catignani reflects that the parties met and conferred as required by CCP § 2025.410(c).

Analysis

Defendant moves to quash three deposition notices pursuant to CCP § 2025.410, which provides:

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(CCP § 2025.410(a)-(d) (bold emphasis and underlining added).)

CCP § 2025.410 authorizes an order staying the taking of a deposition or quashing the deposition notice if the deposition notice does not comply with Article 2, commencing with § 2025.210. Article 2 (CCP §§ 2025.210 – 2025.290) specifies the procedural requirements for taking an oral deposition, including when a deposition notice may be served, the contents of the deposition notice, upon whom notice is to be served, the place of taking of deposition, number of days required for notice, the effect of service of deposition notice, and time limits for depositions. The instant motion is not based on any defects of this nature as to two of the three proposed depositions: those of Louis Carpentier and Eugene Ryan. As such, there is no basis to quash these deposition notices under CCP § 2025.410. Accordingly, the motion to quash is DENIED as to the deposition notices of Louis Carpentier and Eugene Ryan.

As to the third potential deponent, Joel Schultz, Defendant barely squeaks by with a brief mention (buried in the middle of a paragraph in the middle of its separate statement) of a basis on which his deposition notice could potentially be quashed: Defendant states that Mr. Schultz lives in the Oakland area. This was buried so far within the separate statement Plaintiff missed it entirely. (Plaintiff’s Separate Statement, at p. 13 [discussing Defendant’s motion to quash as to Mr. Schultz and stating that “Defendant’s only argument in support of its motion to quash the deposition notices at issue is that the depositions present an undue burden and are oppressive because they are irrelevant and ‘propounded at the eleventh hour’” (emphasis in original)].)

Under CCP § 2025.250, in general, the “deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.” (CCP § 2025.250(a).) Defendant objected on this basis, among others, to the deposition notice for Mr. Schultz. (Reply Decl. of Cory D. Catignani, Exh. E, at p. 2.)

A party “desiring to take the deposition of a natural person who is a party to the action or an officer, director, managing agent, or employee of a party may make a motion for an order that the deponent attend for deposition at a place more distant than that permitted under Section 2025.250.” (CCP § 2025.260(a).) Thus, Plaintiff may file a motion seeking permission to depose Mr. Schultz here even though Defendant maintains that he lives in Oakland. At this time, however, Plaintiff has not sought that permission.

Accordingly, the motion to quash is GRANTED as to the deposition notice for Joel Schultz only.

As noted above, sanctions are mandatory against the losing party on a motion to quash unless the losing party acted “with substantial justification” or other circumstances make the imposition of a sanction “unjust.” (CCP § 2025.410(d).) Here, the parties each partially won and partially lost this motion. Therefore, the Court finds that imposing sanctions for only partially losing the motion would be unjust. Accordingly, no sanctions are awarded to either party on the motion to quash.[1]

Alternative Motion for a Protective Order

Meet and Confer Requirement

The Declaration of Cory D. Catignani reflects that the parties met and conferred as required by CCP § 2025.420(a).

Analysis

Alternatively, Defendant seeks a protective order pursuant to CCP § 2025.420, which provides:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

. . .

(9) That certain matters not be inquired into.

(10) That the scope of the examination be limited to certain matters.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

. . .

(CCP § 2025.420(a), (b).)

In light of the Court’s decision to quash the deposition notice for Joel Schultz, the alternative motion for a protective order is DENIED AS MOOT as to him.

As to Eugene Ryan and Louis Carpentier, Defendant argues that they have no information relevant to Plaintiff’s claims because Plaintiff does not base any of his claims on their conduct and because any such claims would be barred by the statute of limitations. (Notice, at p. 2.) Plaintiff argues that these claims would not be barred based on the “continuing violation” doctrine. Even if that is not the case, however, Defendant’s argument reflects an overly narrow view of the scope of discovery. Discovery is proper if the information sought is relevant to the “subject matter” of the action. (CCP § 2017.010.) This is broader than being relevant to the “issues” and means that the discovery is appropriate if it might reasonably help a party evaluate the case, prepare for trial, or facilitate settlement. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013; Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1392.)

Here, as to Louis Carpentier, Plaintiff notes that Defendant may raise defenses based on Plaintiff’s work performance, and Mr. Carpentier was among those who disciplined Plaintiff when he was Plaintiff’s supervisor. (3AC ¶ 14 [noting that Carpentier was the manager of the Torrance store where Plaintiff worked and “decided to transfer him” to Huntington Beach].) It stands to reason that Mr. Carpentier may have information relevant to the subject matter of this lawsuit based on employment discrimination, harassment, and retaliation.

Likewise, as to Eugene Ryan, Plaintiff indicates that Ryan disciplined him for complaining of sexual harassment. (Plaintiff’s Separate Statement, at p. 9.) Just as Mr. Carpentier’s testimony may therefore be relevant regarding Plaintiff’s work performance, so to may Mr. Ryan’s testimony be relevant, whether or not it is actionable based on the “continuing violation” doctrine.

Moreover, Defendant has not shown that the “burden, expense, or intrusiveness involved in . . . [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) The Declaration of Cory D. Catignani describes the volume of discovery Plaintiff has propounded in this case, but no where does the Catignani Declaration state facts establishing that these three depositions are oppressive or unduly burdensome.

Accordingly, the alternative motion for a protective order is DENIED as to Eugene Ryan and Louis Carpentier.

For the reasons discussed in connection with the motion to quash, no party is awarded sanctions in connection with the alternative motion for protective order. The Court finds that the circumstances render an award of sanctions against Defendant unjust.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 27, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] The Court also notes that Defendant did not request sanctions in its notice of motion, and Plaintiff did not file any notice of opposition in which he requested sanctions. Rather, Plaintiff’s request for $9,100 (!) in sanctions in connection with his opposition is buried near the end of his opposing memorandum and fails to even name the parties or counsel against whom sanctions are sought. Even if the Court had been inclined to award Plaintiff sanctions, which it is not, this request does not meet the requirements of due process and is so excessive the Court would be justified in denying it in its entirety on that basis alone. (CCP § 2023.040 [requiring a request for sanctions to “identify every person, party, and attorney against whom the sanction is sought” in the notice]; Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”].)