Case Number: BC534881    Hearing Date: August 04, 2014    Dept: 34

Moving Parties: Plaintiff Toni O’Neal (“plaintiff”)

Responding Party: Defendants Robert Brown and University of West Los Angeles (“defendants”)

The Court orders the parties to meet and confer in person to schedule the depositions of Brown, Frykberg, Johnson, and Kormandy. If the parties are unable to informally resolve these issues, the Court will GRANT Plaintiff’s motion to compel the depositions.

PRELIMINARY COMMENTS:

1.) Today is the third time in the last four court days that law and motion matters on this case have appeared in Dept. 34. Although the Court will not repeat its comments – made as part of its Tentative Decision of July 31, 2014 – for the need of counsel to meet and confer in good faith, those comments apply with equal force to this motion.

2.) Plaintiff seeks to compel separate depositions of four different people. Therefore, plaintiffs should have filed – and paid fees for – separate motions as to each deponent, instead of filing a single, omnibus motion. (See Los Angeles Superior Court Fee Schedule. See also Gov. Code, § 70617(a)(4).)

3.) Defendants spend two pages of their opposition arguing that plaintiff failed to appear for her noticed deposition. That issue is irrelevant to the present motion. If defendants wish to compel plaintiff to appear for her deposition – and are unable to resolve the issue after a good faith meet and confer – they can bring a motion to compel. Plaintiff’s failure to appear for her deposition, and her previous motion regarding the scheduling of depositions, did not take Brown’s deposition or the 3rd-party UWLA agents’ depositions off calendar.

BACKGROUND:

Plaintiff commenced this action on 1/30/14 against defendants for: (1) retaliation under Labor Code section 1102.5; (2) wrongful termination in violation of public policy; and (3) IIED. Plaintiff alleges she was demoted and ultimately terminated for opposing a plan to promote and operate a program that had been denied approval.

ANALYSIS:

Plaintiff moves to compel the depositions of Robert Brown, Jay Frykberg, Edward Kormandy, and Kimberly Johnson.

Defendants argue that the four scheduled depositions should not take place until after Plaintiff is deposed. The Court has already declined to issue an order as to the deposition sequence. As the Court noted in its 4/15/14 ruling on plaintiff’s motion to schedule depositions: “Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020(a).) A court may, on a motion showing good cause, establish the sequence of discovery “for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020(b).)

The parties here have not shown good cause for such an order at this time. Defendants assert that their deposition of plaintiff must occur first, but provide no facts or evidence as to why this must be. It appears that the only basis for defendants’ request is the fact that they scheduled plaintiff’s deposition to take place before Brown’s; however, the Court notes that defendants noticed plaintiff’s deposition after plaintiff had noticed Brown’s. (See Defendants’ Exh. A.) Local Rule 3.26 provides: “The guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” (Super. Ct. L.A. County, Local Rules, rule 3.26.) Appendix 3.A provides: “When a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.” (Id., Appendix 3.A, § (e)(3).) Though this rule is merely advisory, defendants’ conduct in violation thereof is not sufficient good cause for the Court to set a deposition sequence.

“If, 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, or to produce 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, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450(a).) Objections to the deposition notice must be served at least three calendar days prior to the scheduled deposition date. (Code Civ. Proc., § 2025.410(a).)

On 2/24/14, plaintiff noticed Brown’s deposition for 4/7/14. (See Pl. Exh. 1.) After defendants noticed plaintiff’s deposition for 4/4/14, plaintiff re-noticed Brown’s deposition for 3/14/14. (Pl. Exh. 2.) On 3/10/14, defendants personally served objections to Brown’s deposition notice. (See Def. Exh. D.) The objection stated that defendants’ counsel and Brown were not available for deposition on the date set. (Ibid.) The same day, defense counsel sent a letter to plaintiff’s counsel stating that defendants expected to move forward with Brown’s deposition on 4/7/14. (See Pl. Exh. 9.) Plaintiff’s counsel responded by requesting that defendants provide dates for Brown’s deposition prior to 4/4/14. (See Pl. Exh. 10.) When plaintiff’s counsel attempted to confirm Brown’s deposition for 4/7/14, defense counsel responded that they would confirm the deposition date only if plaintiff confirmed the 4/4/14 date for her deposition. (See Pl. Exhs. 11-14.) Further correspondence suggested that defendants would not produce Brown until after plaintiff appeared for her deposition. (See Pl. Exhs. 15-19.) On 4/4/14, defense counsel served objections to Brown’s deposition notice, again stating that they were unavailable. (See Def. Exh. G.) Plaintiff’s counsel then attempted to meet and confer to obtain new dates for Brown’s deposition, to no avail. (See Pl. Exhs. 21-31.)

On 4/15/14, plaintiff noticed the depositions of Frykberg, Johnson, and Kormandy, scheduled for April 29, April 30, and May 5, respectively. (See Pl. Exhs. 3-5.) On 4/17/14, defense counsel e-mailed plaintiff’s counsel and stated that the scheduled dates would not work, but indicated a willingness to re-schedule. (See Def. Exh. J.) The extent to which the parties engaged in meet and confer efforts to reschedule these depositions is unclear. (See Def. Exh. N.)

The Court finds that plaintiff noticed the depositions, defendants objected that the scheduled deposition dates did not work for them, and defendants then failed to provide alternative dates for the depositions. Defendants provide no valid excuse for their failure to provide Brown, other than their assertions based on plaintiff’s failure to appear for her deposition and the deposition sequence. For reasons discussed above, these facts do not excuse Brown from appearing for deposition.

Defense counsel declares that lead counsel for UWLA, Tanja Darrow, was involved in a car accident and was placed on leave from 5/22/14 through July. (Paul Decl., ¶ 19.) Defense counsel then proposed a litigation stay of 30 days to allow Darrow to recover, but plaintiff’s counsel did not agree. (Id., ¶ 20.) The Court notes that defendant fails to provide admissible evidence to support the contention that Darrow has been completely unavailable; Mr. Paul has not established personal knowledge of Darrow’s condition or any advice from her doctor.

The Court ORDERS counsel to meet and confer in person prior to the hearing at 8:30 a.m. on August 4, 2014 to discuss available dates for the depositions of Brown, Frykberg, Johnson, and Kormandy. In the event that the parties fail to agree to deposition dates, the Court will GRANT Plaintiff’s motion, and order these parties to appear for their depositions at a date to be determined by the Court.