Case Name: Nathalie Thuy Van v. Language Line Solutions, Inc., et al.
Case No.: 1-13-CV-244291
Motion by Defendant Languageline Services, Inc. for Issuance of Order to Show Cause re Contempt, Monetary Sanctions, Terminating Sanctions or [sic] in the alternative, to Compel Appearance by Plaintiff Nathalie Thuy Van
Defendants seek monetary and terminating sanctions and an alternative order compelling the appearance of Plaintiff Nathalie Thuy Van at deposition.
I. Monetary Sanctions in connection with June 3, 2014 order
On May 21, 2014, Defendants served a Notice of Deposition of Plaintiff, setting the deposition for June 12 and 13, 2014. On May 27, 2014, Plaintiff filed a motion to compel, with a hearing set on July 11, 2014; served Objections to the Deposition Notice; and telephoned Defendants’ counsel to advise that on May 29, 2014, she would seek an ex parte order compelling the parties to conduct mediation in June and staying her deposition for an unstated period until the parties had complied with the order on her July 11 motion to compel. The ex parte application was filed on June 3, 2014, and denied.
Defendants argue that monetary sanctions should be imposed on Plaintiff pursuant to Code of Civil Procedure section 2025.410(c) and (d) for unsuccessfully making a motion to stay a deposition. No party has cited, and the court is not aware of, any authority that the sanctions provisions of the Discovery Act should not apply to ex parte applications, and the rationale of the rule applies with equal force to ex parte requests. Given that there were meet-and-confer communications on this matter before the application was filed (Declaration of Heath A. Havey in Support of Motion, at Exhibits 2-5), there do not appear to be any circumstances in this case warranting an exception on account of the ex parte nature of the application.
The Legislature has designed the Discovery Act so that, when the parties fail to resolve a discovery dispute informally and the court is required to rule on a discovery motion, the default circumstance is the imposition of monetary sanctions on the losing party. (E.g., Code of Civil Procedure section 2025.410(d).) “ ‘There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.’ … ‘Whenever one party’s improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court’s intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party’.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1287 [internal citations omitted].)
An exception pertains if the court finds that the losing party acted with substantial justification. “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact. The burden for proving “substantial justification” for failing to comply with a discovery order is on the losing party claiming that it acted with “substantial justification.” (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434-1435.) The justification must be “well-grounded in both law and fact”. (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747 [citations omitted].)
Plaintiff has not met provided any facts to show that she acted with substantial justification in seeking an order staying her deposition, and thus has failed to meet her burden. No other circumstances make an award of sanctions unjust. Moreover, although not required to do so given Plaintiff’s failure to meet her burden, Defendants have established facts showing that Plaintiff made the motion without substantial justification. (Declaration of Heath A. Havey, 2:13-3:2.) Accordingly, Defendants’ request for monetary sanctions is GRANTED. Plaintiff is ordered to pay Defendants the sum of $1,050 as and for reasonable attorney fees (2.5 x $420) within fifteen days from notice of entry of this order. Failure to comply timely with this order may result in the imposition of evidentiary, issue or terminating sanctions.
II. Misuse of Discovery by Violation of Order Denying Stay of Deposition
Defendants seek an order imposing monetary sanctions pursuant to Code of Civil Procedure sections 2023.010 and 2025.450 because, after the court denied her request for a stay, she nevertheless refused to appear for deposition, effectively granting herself the stay that the court had denied.
On June 5, 2014, after her stay request was denied, Plaintiff served Objections to an Amended Deposition Notice served on May 29, 2014, rescheduling the deposition for June 19 and 20, 2014—dates she had previously confirmed that she was available. (Declaration of Heath A. Havey, Exhibit 3, 6 and 8.)Notwithstanding the court June 3 order, Plaintiff asserts in these Objections (at 4:2-5) that she “will not appear to [sic] … any deposition until the determination of Plaintiff’s motion to compel Defendants’ production is ruled [sic] by the Court, Department 19, and until all parties have complied with the order of the Court.” (Declaration of Heath A. Havey, Exhibit 8.)
On June 11, 2014, Defendants sent to Plaintiff by overnight mail a letter which, among other things, confirmed that she, a current employee of Defendants, would be given time off work to attend the deposition on June 19 and 20. (Declaration of Heath A. Havey, Exhibit 9.) On June 12, 2014, Plaintiff responded with Supplemental Objections repeating her refusal to appear for deposition for an indeterminate period, and also served a Notice of Unavailability for the periods from June 16 to 23 and July 4 to July 10, 2014—periods which included dates Plaintiff had already committed to be available for work. (Declaration of Heath A. Havey, Exhibits 10 and 11.) Plaintiff thereby attempted again to grant to herself by another means the relief the court had denied. Neither the Objections nor the Notice of Unavailability is effective to unilaterally impose a stay of the deposition without a court order.
On July 19, 2014, Plaintiff failed to appear for her deposition. When Defendants renoticed the deposition yet again for July 28 and 29, 2014, Plaintiff served more Objections, stating that she would not appear for deposition on those dates or anytime “while Defendants have not produced all responsive documents as ordered by the Honorable Manoukian on July 10, 2014.” (Declaration of Heath A. Havey, Exhibits 12, 13 and 14.)
Plaintiff explains all of these repeated efforts to give herself the relief that the court had denied on June 3, by claiming that essentially that she was confused by information received from a court clerk and the court website. (Declaration of Nathalie Thuy Van, at 2:21-25.) This assertion is not credible. It is more likely, as Defendants argue, that Plaintiff persisted in repeating Objections because she fully appreciated that the June 3 order was entirely valid and that she was refusing to comply with it.
Accordingly, the court finds that Plaintiff has failed to submit to an authorized method of discovery, disobeyed a court order to provide discovery, and failed to comply with a deposition notice. Defendants’ request for monetary sanctions is GRANTED. Plaintiff is ordered to pay Defendants the sum of $7,713 as and for reasonable attorney fees (deducting 6.5 hours travel time and $300 travel expense) within fifteen days from notice of entry of this order. This sum is in addition to the monetary sanctions awarded to Defendants in connection with the June 3, 2014 order. Failure to comply timely with this order may result in the imposition of evidentiary, issue or terminating sanctions.
Plaintiff’s request for monetary sanctions is denied
III. Terminating Sanctions, Compelling Attendance, and Motion to Quash
Plaintiff’s motion to quash her deposition, set in Dept. 19 on September 11, 2014, is advanced to August 29, 2014. Defendants may file opposition on or before noon on August 25, 2014, and Plaintiff may file reply on or before noon on Wednesday, August 27, 2014. Any opposition and reply must be served by personal delivery or email no later than the time of filing. Courtesy copies of any opposition and reply should be delivered to Dept. 19 at the time of filing.
The filing of Plaintiff’s motion to quash her deposition stays the deposition until the motion is determined, pursuant to Code of Civil Procedure section 2025.410(c). Accordingly, Defendants’ current motion for terminating sanctions and in the alternative to compel her attendance is continued to August 29, 2014 in Dept. 19.
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