Case Number: BC483476    Hearing Date: September 12, 2014    Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
________________________________________
Hearing Date: Friday, September 12, 2014
Calendar No: 10
Case Name: Garau v. Department of Industrial Relations, et al.
Case No.: BC483476
Motion: (1) Motion to Continue Trial and Motion for Leave to File Amended Answer
(2) Motions to Compel Deposition and to Enforce Business Records Subpoenas
(3) Motions to Quash Deposition Subpoenas and for Protective Order
(4) Motion for Sanctions
Moving Party: (1)-(2), (4) Defendants State of California, Department of Industrial Relations, and Division of Occupational Safety and Health
(3) Plaintiff Olga H. Garau
Responding Party: (1)-(2), (4) Plaintiff
(3) Defendants
Notice: OK

Tentative Ruling: (1) Motion to continue trial is granted. Motion for leave to file amended answer is granted. The amended answer is deemed filed and served as of this date.

(2)-(3) Motions to quash deposition subpoenas and for protective order (except as to the issue of a stay) are denied. Motions to compel deposition and to enforce business records subpoenas are granted. No sanctions are awarded.

(4) Motion for sanctions is denied.

At the hearing, the Court will discuss Plaintiff’s request for a stay pending her appeal of the court’s 6/2/14 order denying the motion to disqualify counsel.
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I. BACKGROUND AND PROCEDURAL HISTORY
On 4/25/12, Plaintiff, Olga H. Garau filed this action against Defendants, Department of Industrial Relations (“DIR”); State of California; and Division of Occupational Safety & Health (“DOSH”) arising out of Plaintiff’s civil service employment with DIR. Plaintiff asserts causes of action for (1) “multiple FEHA violations” – wrongful termination, disability discrimination, and retaliation; (2) “breach of statutory duty (multiple code sections)”; and (3) breach of contract. On 6/22/12, DIR filed a special motion to strike and a demurrer. On 6/25/12, DIR filed a notice of errata indicating that the memorandum of points and authorities to the demurrer was erroneously omitted. On 7/10/12, defaults were entered against the State and DOSH.

Prior to the hearing on DIR’s special motion to strike and demurrer, the Court provided a tentative ruling on the merits of the motions. On 7/25/12, the Court ordered the motions off-calendar as moot in light of the State’s default; Plaintiff requested the entry of default against DIR which was entered.

On 8/9/12, Defendants filed an ex parte application to set aside DIR’s default and to shorten time on a motion for relief as to State and DOSH’s defaults. The Court denied the ex parte applications and permitted Defendants to file them as regularly noticed motions. Defendants filed the motions on the same day. On 10/4/12, the Court granted Defendants’ motions for relief from default and to set aside default. Defendants filed a demurrer and special motion to strike on the same day.

On 10/31/12, Plaintiff filed a motion for reconsideration as to the Court’s 10/4/12 order and a motion to strike Defendants’ filings. On 11/27/12, the Court denied Plaintiff’s motion for reconsideration and motion to strike, denied Defendants’ special motion to strike, and sustained Defendant’s demurrer to the 2nd and 3rd COAs with leave to amend. The parties had submitted on the tentative ruling and waived further notice. M.O. dated 11/27/12.

On 12/7/12, Defendants filed an answer to the 1st COA in the Complaint. On 1/25/13, the Court stayed this action pending final judgment in an unrelated case filed by Plaintiff (Case No. BC388541) against DIR, asserting FEHA claims and related causes of action arising out of the denial of a promotion to Plaintiff. On 3/27/14, the Court lifted the discovery stay, and set trial for 1/12/15 and FSC for 1/8/15.

On 5/8/14, Plaintiffs filed motions to strike Defendants’ answer and to disqualify counsel. On 5/21/14, the Court granted Defendants’ ex parte application to shorten time for the hearing on motions to compel Plaintiff’s deposition and to enforce compliance with business records subpoenas, setting them for hearing on 6/2/14.

On 6/2/14, the Court denied Plaintiff’s motions to strike Defendants’ answer and to disqualify counsel; and granted Defendants’ motion to compel Plaintiff to provide further responses to employment form interrogatories and requests for production of documents. The Court provided a discussion as to various issues in connection with Plaintiff’s deposition and the business records subpoenas, continued the hearing on the matters to 7/18/14 to be heard concurrently with Plaintiff’s reserved motion to quash deposition subpoena, and ordered the parties to meet and confer consistent with the Court’s 6/2/14 rulings. At Plaintiff’s request, the Court stayed enforcement of all the orders with respect to the 6/2/14 matters until 6/12/14 to allow Plaintiff to take a writ.

Plaintiff did not file the motion to quash deposition subpoenas until 7/7/14 which were set for hearing for 9/12/14 (Plaintiff also filed a motion for protective order concerning depositions set for hearing on the same date). The Court continued the hearing on the 7/18/14 matters (which included a Defendants’ motion to continue trial) to 9/12/14. The Court notes that Plaintiff filed a petition for writ of mandate and stay (B257629) on 7/21/14 which was summarily denied on 7/29/14 by the Court of Appeal. On 7/31/14, Plaintiff filed a notice of appeal (B257958) as to the Court’s 6/2/14 ruling denying her motion to disqualify counsel, which is currently pending.

II. MOTION TO CONTINUE TRIAL
On 6/20/14, Defendants filed a motion to continue trial and related dates for 120 days. “The decision to grant or deny a continuance is committed to the sound discretion of the trial court. The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court.” Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984. Defendants’ request for continuance is based on the inability to conduct discovery due to still-pending issues which prevents Defendants from filing a motion for summary judgment: Defendants note that this is the first trial continuance requested. See Bacon Decl. [Continue] ¶¶ 3-4, 6-15.

In opposition, Plaintiff argues that Defendants’ have no meritorious defense to this action. However, such a merit-based argument is not properly considered. See CRC 3.1332(d). Plaintiff also asserts that Defendants have not been diligent in seeking discovery. The Court disagrees. As set for in the Court’s background and procedural history, this action has involved extensive litigation surrounding Defendants’ defaults, a special motion to strike filed on 10/4/12 and denied on 11/27/12, a stay from 1/25/13 to 3/27/14, and Plaintiff’s attempt (and continuing arguments) to disqualify counsel. Under these circumstances, the Court finds good cause for a continuance. CRC 3.1332(c), (d).

To the extent Plaintiff argues that the motion fails to include a table of contents or authorities, the Court notes that this is required for memoranda that exceed 10 pages (CRC 3.1113(f)): Defendants’ motion is a combined filing in which the memorandum portion consists only of 10 pages. To the extent Plaintiff notes that Defendants’ fail to cite to case law, the Court notes that Defendants did cite to CRC 3.1332 which provides authority for the motion. To the extent Plaintiff continues to disagree with the Court’s ruling on the motion to disqualify counsel, the Court has rejected Plaintiff’s arguments on 6/2/14.

Therefore, the motion to continue trial and related dates is granted. At the hearing, the Court will discuss setting new dates.

III. MOTION FOR LEAVE TO FILE AMENDED ANSWER
On 8/13/14, Defendants filed a motion for leave to amend their answer to assert an additional affirmative defense for failure to mitigate damages (see Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 409). An amended motion was filed on 8/18/14 which corrects an inadvertently omitted signature of Defendants’ counsel: the Court treats the amended motion as the operative filing, which Plaintiff does as well.

“In furtherance of justice,” the Court may permit amendment of any pleading on such terms as may be proper. See CCP §§ 473(a), 576. While the Court has discretion to permit or deny amendment of a complaint, denial of leave to amend is rare. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. “In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.” Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159. The Court may deny leave to amend after long, inexcusable delay, where there is prejudice, such as where new issues would require further discovery. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Absent prejudice, delay alone is not sufficient to deny leave to amend. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

Defendants submit that the employment form interrogatories served on 12/18/12 sought information concerning Plaintiff’s wage loss and mitigation but discovered in June 2014 that such an affirmative defense was inadvertently omitted from the answer. Frick Decl. [Amend] ¶¶ 3-4. In opposition, Plaintiff argues that Defendants fail to comply with CRC 3.1324(a)(3) in failing to specify the page, paragraph, and line number; and fails to comply with CRC 3.1324(b)(3)-(4) in addressing when the facts were discovered and why the request for amendment was not made earlier. Plaintiff’s arguments have no merit. The motion specifies the page and line number of the proposed additional affirmative defense (Mot’n [Amend] p. 2:6-7); and Defendants’ counsel’s declaration asserts that this affirmative defense was inadvertently omitted which omission was discovered in June 2014. Therefore, the Court finds that the motion complies with CRC 3.1324.

To the extent Plaintiff argues that Defendants failed to provide a statement of facts (CRC 3.1113(b)), the Court finds no prejudice resulting from this omission because all parties appear to be well aware of all issues raised in this action. To the extent Plaintiff argues that there is prejudice because Plaintiff cannot conduct discovery in time, the Court notes that any such prejudice is rendered moot by the trial continuance granted above.

Therefore, the motion for leave to amend answer is granted. The proposed Amended Answer (Frick Decl. Ex. A) is deemed filed and served as of this date.

IV. DISCOVERY MOTIONS
Preliminarily, the Court notes that all of the remaining motions set for hearing (Defendants’ continued motions to compel Plaintiff’s deposition and to enforce business records subpoenas, Plaintiff’s motions to quash deposition subpoenas and for protective order, and Defendants’ motion for sanctions) all concern discovery in relation to the Court’s 6/2/14 ruling denying Plaintiff’s motion to disqualify counsel. Much of the issues briefed by the parties (i.e., concerning a discovery stay due to no notice of ruling on the special motion to strike, whether Defendants can obtain sanctions, and various objections asserted by Plaintiff) have been addressed in the Court’s 6/2/14 ruling on the motions heard that date: therefore, the Court will address issues that have not been previously addressed here.

1. Deposition Subpoenas
Plaintiff argues that the subpoenas were not made on the current versions of the mandatory Judicial Council forms. Compare Garau Decl. filed 7/7/14 ¶ 22, Ex. 12 with Riffey Decl. filed 5/21/14 ¶ 4, Ex. 2. Although Plaintiff’s argument is correct (CRC 1.37 (requiring the use of current versions)), Plaintiff fails to raise any issues of prejudice: notably, the forms are identical in substance and differ only in format. The Court notes that notwithstanding CRC 1.37, it does not reject forms which are not the latest version (CRC 1.42(9)). Plaintiff fails to establish that the violation of CRC 1.37 results in the subpoenas being defective. Cf. CRC 2.30 (permitting sanctions upon noticed motion for violations of the CRC in civil cases). Even if the subpoenas were defective, the Court would only quash the deposition subpoenas without prejudice to Defendants re-serving subpoenas on current forms.

Plaintiff argues that the proofs of service were not properly served, that the subpoenas fail to comply with CCP § 2020.430(d), and that the subpoenas were not properly issued. However, these arguments are not persuasive. The subpoenas establish that they were properly directed and served (Riffey Decl. filed 5/21/14 ¶ 4, Ex. 2; Lodging of Proofs of Service filed 5/29/14): Plaintiff submits no evidence to the contrary. To the extent Plaintiff argues that the subpoenas were backdated, this presupposes that Defendants’ counsel could only have sought to reissue subpoenas as a result of Plaintiff’s objection letter, which is disputed (Bacon Decl. filed 7/11/14 ¶¶ 7-8). Because the subpoenas request only permitting the inspection and copying of records, CCP § 2020.430(d) does not apply (CCP § 2020.430(e)). Lastly, the records sought are properly the subject of business records subpoenas. See CCP §§ 2020.410(d), 1985.3.

Therefore, the motion to quash deposition subpoenas is denied. Defendants’ motion to enforce business records subpoenas is granted.

2. Protective Order
Plaintiff’s motion for protective order requests a stay pending Plaintiff’s appeal of the Court’s 6/2/14 ruling on the motion to disqualify, to preclude audio/video recording of Plaintiff’s deposition, to limit the use of depositions to this action only, and to limit the medical information and records sought. As explained in the Court’s 6/2/14 ruling, Plaintiff’s medical condition has been placed in controversy: the discovery sought is not overbroad; additionally, Defendants are entitled to videotape the deposition (see CCP § 2025.220(a)(5)). As to Plaintiff’s request to limit the use of depositions, this is improper pursuant to CCP § 2025.620(g): Plaintiff fails to explain how CCP § 2025.570(c) cannot adequately protect Plaintiff’s concerns for third-parties seeking such depositions.

Therefore, except as to the issue of a stay, which is addressed below, the motion for protective order is denied. Defendants’ motion to compel Plaintiff’s deposition is granted.

3. Sanctions/Stay
Defendants’ motion for sanctions is based on Plaintiff’s failure to comply with the Court’s 6/2/14 ruling which ordered Plaintiff to respond to the employment form interrogatories and request for production of documents. The parties dispute the effect of Plaintiff’s appeal of the Court’s 6/2/14 ruling on the motion to disqualify counsel.

Defendants correctly note that Plaintiff’s appeal of the Court’s 6/2/14 ruling on the motion to disqualify counsel does not automatically stay this matter. See Reed v. Superior Court (2001) 92 Cal.App.4th 448, 454-55. Plaintiff can first request that the Court exercise its discretion to continue or stay proceedings in this action until the appeal is decided, and if the Court denies Plaintiff’s request to stay, Plaintiff may request the Court of Appeal to stay them by a petition for writ of supersedeas in connection with Plaintiff’s appeal or in connection with the preferred method of a petition for writ of mandate. Id. at 455.

Other than Plaintiff requesting a stay to pursue a writ (which the Court granted a stay until 6/12/14), Plaintiff has not requested the Court to otherwise issue a stay this matter until Plaintiff arguably filed the motion for protective order. The Court notes that Plaintiff filed a petition for writ of mandate and stay on 7/21/14 (B257629) which was summarily denied on 7/29/14 by the Court of Appeal. See Lee Decl. [Sanctions] ¶¶ 11-12, Ex. D. On 7/31/14, Plaintiff filed a notice of appeal (B257958) as to the Court’s 6/2/14 ruling denying her motion to disqualify counsel and filed a notice of appellate stay in this action, asserting that there is an automatic stay pursuant to CCP § 916(a). Lee Decl. [Sanctions] ¶¶ 13, Ex. E.

Sanctions are authorized for a failure to obey an order compelling responses when they are just. CCP §§ 2030.300(e), 2031.310(i). Under the circumstances, the Court does not find that Plaintiff’s failure to comply with the Court’s 6/2/14 ruling supports sanctions, in light of Plaintiff’s continued attempts to appeal the Court’s 6/2/14 ruling as to the motion to disqualify counsel. Additionally, the Court notes that Plaintiff appears to keenly disagree with the Court’s ruling as evidenced by Plaintiff’s appeal therefrom and is likely to be distracted and/or absorbed thereby until finally decided by the appellate court(s). Under these circumstances, the Court will consider issuing a stay in this matter pending Plaintiff’s appeal.