Case Number: KC068943 Hearing Date: March 07, 2018 Dept: J

Re: Timothy Cox v. R.J. Reynolds Tobacco company, Inc., et al. (KC068943)

MOTION FOR MONETARY SANCTIONS AGAINST PLAINTIFF AND HIS COUNSEL

Moving Party: Defendant R.J. Reynolds Tobacco Company

Respondent: Plaintiff Timothy Cox

POS: Moving OK; Opposing timely filed but not accompanied by a proof of service

Plaintiff alleges that, following his complaints to management relating to various Labor Code and FEHA violations, he was reprimanded, demoted and ultimately terminated. The complaint was filed 12/22/16. The First Amended Complaint, filed 12/27/16, asserts causes of action against Defendants R.J. Reynolds Tobacco Company, Inc., Reynolds American, Inc., Tasha Kolbe, Staci Meyer and Does 1-50 for:

Gender Discrimination in Violation of California Government Code §§ 12940, et seq. (FEHA);
Hostile Work Environment in Violation of California Government Code § 12940(j);
Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of California Government Code §§ 12940, et seq. (FEHA);
Retaliation in Violation of California Government Code §§ 12940, et seq. (FEHA);
Wrongful Termination in Violation of Public Policy;
Violation of Title VII (Promotion Discrimination);
Violation of Title VII (Gender Discrimination);
Violation of Title VII (Retaliation);
Intentional Infliction of Emotional Distress;
Negligent Infliction of Emotional Distress;
Failure to Pay Wages for All Hours Worked; Overtime Wages (Violation of California Labor Code §§ 510, 1194 et seq.);
Failure to Provide Meal Periods (Violation of California Labor Code §§ 226.7 and 512(a) and California Code of Regulations Title 8, §§ 11090 and 11150;
Failure to Authorize and Permit Rest Periods (Violation of California Labor Code § 226.7 and California Code of Regulations, Title 8, § 11090 and § 11150);
Failure to Provide Accurate Itemized Wage Statements (Violation of California Labor Code § 226(a);
Waiting Time Penalties (Violation of California Labor Code §§ 201, 202, 203, 208, 212);
Unlawful, Fraudulent, and Unfair Competition in Violation of Business & Professions Code § 17200;
Unlawful Deduction from Employee Paychecks for Personal Use of Company Vehicle (Labor Code §§ 450, 2802, 432.5, 221, 224, and 255.5);
Labor Code Private Attorney General Act of 2004;
Defamation;
Whistleblower Violations California Labor Code §§ 1102.5, 96k and 98.6; and
Intentional Misrepresentation by Concealment

On 2/15/17, the case was removed to federal court. On 6/8/17, an “Order re Plaintiff’s Ex Parte Application for an Order to Dismiss Federal Claims and Remand State Claims to State Court” was filed, wherein the sixth through eighth causes of action were dismissed without prejudice.

The Final Status Conference is set for 7/30/18. A jury trial is set for 8/7/18.

Defendant R.J. Reynolds Tobacco Company (“defendant”) moves the court for an order, per CCP § 2025.410, 2016.040, 2023.010, 2023.020, 2023.030 and 2023.040 and Los Angeles Superior Court Rule 3.26, awarding monetary sanctions against Plaintiff Timothy Cox (“plaintiff”) and his counsel, Natalie Mirzayan (“Mirzayan”), jointly, in the amount of $7,500.00, as a result of their filing a Motion to Quash Deposition Notice on 11/16/17.

“Before filing a motion, counsel should engage in more than a mere pro forma discussion of its purpose in an effort to resolve the issue.” Los Angeles Superior Court Local Rule 3.26, Appendix 3.A(h)(1). “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” CCP § 2016.040.

“Misuses of the discovery process include, but are not limited to, the following:…(e) Making, without substantial justification, an unmeritorious objection to discovery…(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery…” CCP § 2023.010. “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” CCP § 2023.020.

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct…” CCP § 2023.030.

“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(d).

On 9/15/17, Mirzayan indicated that plaintiff would be available for deposition on 11/17/17. (Liat Yamini [“Yamini”] Decl., ¶ 2, Exhibit “A”). On 9/27/17, defendant served plaintiff with a “Second Amended Notice of Deposition,” noticing plaintiff’s deposition for 11/17/17. (Id., ¶ 3, Exhibit “B”). On 11/13/17, plaintiff served his objections to same. (Id., ¶ 4, Exhibit “C”). That same day at 4:21 p.m., Yamini emailed Mirzayan, advised her that none of plaintiff’s objections excused his obligation to appear for his deposition, and asked her whether plaintiff would be attending his deposition on 11/17/17. (Id., ¶ 5, Exhibit “D”). On 11/14/17, after receiving no response, Yamini left a voice mail for Mirzayan and sent a follow-up email at 11:57 a.m., attempting to confirm whether plaintiff was planning on attending his 11/17/17 deposition. (Id., ¶ 6, Exhibit “E”). At 12:08 p.m., Mirzayan responded, asked to set up a time to talk that day, and advised that she was available from 1:30 until 3:30. (Id., ¶ 7, Exhibit “F”). At 12:14 p.m., Yamini advised that she needed a written response by email, and again asked if Mirzayan and plaintiff would be appearing for deposition on 11/17/17. (Id.). Yamini sent another follow-up email at 1:32 p.m. on 11/14/17, also advising that she would separately send an email addressing the objections Mirzayan served the day before. (Id., ¶ 7, Exhibit “F”). Mirzayan responded at 2:48 p.m. on 11/14/17, and advised that plaintiff would not be appearing for his deposition on 11/17/17. (Id., ¶ 8, Exhibit “G”). Mirzayan proposed to reschedule plaintiff’s deposition for 11/27/17 and noted that “[i]f you cannot agree on re-scheduling Plaintiff’s deposition for Nov. 27, Plaintiff will move to quash the notice.” (Id.). At 4:39 p.m. on 11/14/17, Yamini followed up on her 1:32 p.m. email, in which she substantively addressed Mirzayan’s objections to the “Second Amended Notice of Deposition;” significantly, this email did not respond to Mirzayan’s proposal to reschedule plaintiff’s deposition to 11/27/17 and, in fact, advised that “defendants [were] prepared to take action with the Court should [plaintiff] fail to appear for his deposition scheduled for Friday, November 17, 2017.” (Id., ¶ 9, Exhibit “H”). Yamini did not receive any further correspondence from Mirzayan on 11/14/17 or 11/15/17, and she did not have any other contact with Mirzayan via phone or any other means of communication on those days. (Id., ¶ 10).

At 10:18 a.m. on 11/16/17, Yamini emailed Mirzayan, wherein she informed her that “[d]efendants agree to depose Mr. Cox on November 27, 2017,” and attached a courtesy copy of the “Third Amended Notice of Deposition” for plaintiff’s deposition on 11/2/717, which he advised was being personally served by hand delivery that day. (Id., ¶¶ 11 and 12, Exhibits “I” and “J”). At 3:09 p.m. on 11/16/17, Yamini wrote to Mirzayan and attached a revised “Third Amended Notice of Deposition,” advising Mirzayan that defendant would be using a different court-reporter provider than previously advised. (Id., ¶¶ 13 and 14, Exhibits “K” and “L”). At 4:03 p.m. on 11/16/17, Mirzayan emailed Yamini a courtesy copy of plaintiff’s “Motion for Order Quashing Deposition Notice and Staying Deposition,” advising that the motion had been filed that day. (Id., ¶¶ 15 and 16, Exhibits “M” and “N”). At 10:20 a.m. on 11/17/17, Yamini emailed Mirzayan and requested that the motion be withdrawn, on the basis that defendant had already agreed to reschedule plaintiff’s deposition. (Id., ¶ 17, Exhibit “O”). At 10:42 a.m. on 11/17/17, Mirzayan responded to Yamini’s email, advised that the motion had been prepared on Wednesday (i.e., 11/15/17) and would not be withdrawn, and that “[n]o further discussion will take place regarding this matter.” (Id., ¶ 18, Exhibit “P”).

On 11/28/17, the parties came before the court on an ex parte basis, at which time defendant asked the court to strike plaintiff’s motion as moot, compel plaintiff to appear for his deposition on a mutually agreeable date on or before 1/31/18, and to award monetary sanctions against plaintiff and Mirzayan, jointly, in the amount of $7,500.00. The court granted defendant’s ex parte application in part, striking the motion as moot and compelling plaintiff to appear for his deposition on a mutually agreeable date on or before 1/31/18. The court declined to award monetary sanctions on an ex parte basis and advised that any request for sanctions needed to be made via a noticed motion.

Defendant now seeks monetary sanctions of $7,500.00 against plaintiff and Mirzayan, jointly. The court determines that sanctions should not be imposed under the foregoing circumstances. Mirzayan adequately met and conferred with Yamini prior to filing the motion. Mirzayan, in her 2:48 p.m. email on 11/14/17, advised that plaintiff would not be appearing for his deposition on 11/17/17, proposed to reschedule same for 11/27/17, and noted that “[i]f you cannot agree on re-scheduling Plaintiff’s deposition for Nov. 27, Plaintiff will move to quash the notice.” Yamini’s 4:39 p.m. email on 11/14/17 did not respond to Mirzayan’s proposal to reschedule plaintiff’s deposition to 11/27/17 and advised that “defendants [were] prepared to take action with the Court should [plaintiff] fail to appear for his deposition scheduled for Friday, November 17, 2017. Yamini concedes that no further correspondence was received from Mirzayan on 11/14/17 or 11/15/17, and she did not have any other contact with Mirzayan via phone or any other means of communication on those days. Mirzayan’s action in preparing the motion, then, was appropriate; the filing of same is a different matter, though it is unclear to the court whether Mirzayan was aware of Yamini’s 10:18 a.m. email on 11/16/17 before the motion was filed. The court understands Mirzayan’s frustration with having spent time and fees associated with the preparation of the motion, and likewise understands defendant’s frustration with spending time and incurring fees relative to its ex parte application.

The motion is denied. The court declines both parties’ request for sanctions.