Rosa Vidal vs Natural Pack Inc

Case Number

22CV04446

Case Type

Hearing Date / Time

Wed, 04/10/2024 - 10:00

Nature of Proceedings

Motion: Compel

Tentative Ruling

For Plaintiff Rosa Vidal: Robert Montes, Jr., and Amanda Moradzadeh

For Defendant Natural Pack, Inc.: Eulalio J. Garcia and Amanda H. Herron

                      

RULING

Plaintiff’s motion to compel the depositions of Nohe Velasquez and defendant’s person most knowledgeable is granted as follows:

1. The depositions of Nohe Velasquez and defendant’s person most knowledgeable shall take place no later than May 10, 2024.
2. Unless otherwise mutually agreed, the depositions shall occur in person.
3. Unless otherwise mutually agreed, the depositions shall take place in Santa Barbara at a location chosen by plaintiff.
4. Counsel for both parties are ordered to meet and confer - prior to the hearing on 4/10 - and with these guidelines in mind, agree on the deposition schedule.
5. Counsel for both parties shall appear at the hearing on this matter, either in person or remotely, to confirm an agreement has been reached on the date, or dates, and place of the depositions, and if they will be in person.
6. If no agreement has been reached and announced at the hearing the Court will set the dates at the hearing; have your calendars available.
7. Evidence preclusion sanctions are likely to be set, “in the future” if the Court’s orders are not followed.
8. For the reasons set forth below, no sanctions shall be imposed at this time.
9. Defendant’s motion for protective order, scheduled for hearing on May 15, 2024, is taken off-calendar as moot.

Background

This action commenced on November 10, 2022, by the filing of the complaint by plaintiff Rosa Vidal against defendant Natural Pack, Inc. alleging causes of action for: (1) Pregnancy Discrimination; (2) Disability Discrimination; (3) Failure to Engage in the Interactive Process; (4) Failure to Prevent Discrimination; (5) Wrongful Termination; and (6) Intentional Infliction of Emotional Distress.

As alleged in the complaint:

Defendant owns and operates a packing and distribution facility and on January 26, 2021, plaintiff was offered employment as a packer for defendant. (Complaint, ¶¶ 13, 14.)

On May 18, 2021, plaintiff requested a day off to attend a medical appointment and the request was granted. (Complaint, ¶ 16.) At the medical appointment plaintiff learned that she was pregnant and should refrain from doing any heavy lifting. (Complaint, ¶ 17.) Upon returning to work, plaintiff informed her supervisor that she was pregnant and needed to be placed on light duty. (Complaint, ¶ 18.) Defendant failed to accommodate plaintiff’s medical restrictions and plaintiff continued to work in the same manner without accommodations. (Complaint, ¶ 19.)

On May 25, 2021, plaintiff began to feel ill at work and informed her supervisor that she was pregnant and that her physician had requested that plaintiff be placed on light duty. (Complaint, ¶ 21.) Despite this, defendant again failed to accommodate plaintiff. (Ibid.) After informing her supervisors of her medical condition, plaintiff began experiencing vaginal bleeding and was taken to the hospital where she was informed that she was suffering from a miscarriage. (Complaint, ¶ 22.) Plaintiff was discharged and instructed that she needed to take time off to recuperate. (Ibid.)

On May 26, 2021, plaintiff returned to work for the sole purpose of submitting a time off request form for May 26, 2021 through May 28, 2021 to recuperate from the miscarriage. (Complaint, ¶ 23.) Defendant requested additional information and failed to provide plaintiff the requested time off. (Complaint, ¶ 24.) Due to her medical condition, plaintiff did not appear for work on May 26, 27, or 28. (Ibid.) Due to the absence, defendant pressed plaintiff for documentation regarding the absence. (Ibid.) Plaintiff provided defendant with a doctor’s note dated June 4, 2021, for the days that plaintiff was out. (Complaint, ¶ 25.) Immediately following plaintiff’s miscarriage and the request for time off to recover, plaintiff’s manager began retaliating against plaintiff. (Ibid.)

On June 18, 2021, plaintiff was terminated by defendant. (Complaint, ¶ 27.)

On February 3, 2023, defendant answered the complaint with a general denial and 32 affirmative defenses.

On October 2, 2023, plaintiff noticed the deposition, with a request for production of documents, of defendants person most knowledgeable (“PMK”). (Moradzadeh Dec., ¶ 3.) The deposition was scheduled to take place on November 13, 2023. (Ibid.) On January 3, 2024, plaintiff noticed the deposition of Nohe Velasquez to take place on January 25, 2024. (Ibid.) On January 9, 2024, plaintiff’s counsel attempted to confirm the Velasquez deposition, but defense counsel did not respond. (Moradzadeh Dec., ¶¶ 4, 5.)

On January 11, 2024, plaintiff’s counsel received defendant’s objections to the Velasquez deposition, but no alternative dates were provided. (Moradzadeh Dec., ¶ 8.)

On January 18, 2024, counsel for both parties met and conferred regarding discovery responses as well as the depositions of Velasquez and defendants PMK. (Moradzadeh Dec., ¶ 10.) Defense counsel agreed to produce Velasquez on March 5, 2024, but insisted that the depositions take place via Zoom rather than in person. (Ibid.) Defense counsel did not provide a date for the deposition of defendant’s PMK and insisted that plaintiff be deposed first. (Ibid.) When plaintiff’s counsel inquired as to why defendant was insisting on remote depositions, defense counsel stated that she was located on the east coast and that her client would not pay for travel costs to attend depositions in California. (Ibid.) Defense counsels email signature line indicates that she is located in San Diego California and that defense counsel has several offices in California, including Los Angeles and Ventura.

On January 24, 2024, plaintiff again noticed the deposition of defendant’s PMK. (Moradzadeh Dec., ¶ 11.) The deposition was scheduled to take place on March 8, 2024. (Ibid.)

On January 29, 2024, plaintiff’s counsel provided available dates for plaintiff’s deposition, but defense counsel refused to provide dates for the deposition of defendant’s PMK unless there was an agreement to take the depositions remotely. (Moradzadeh Dec., ¶ 12.)

On February 15, 2024, defense counsel informed plaintiff’s counsel that plaintiff would only be allowed to take an in-person deposition of defendant’s witnesses if plaintiff bore the cost of the depositions and agreed to take the depositions at defense counsel’s San Diego office. (Moradzadeh Dec., ¶ 13.) (Note: Further details regarding the noticing of the depositions, as well as additional meet and confer efforts, are set forth in the declaration of Robert Montes, Jr.)

Plaintiff now moves to compel the Velasquez and PMK depositions and seeks sanctions.

On March 29, 2024, defendant filed a “Motion for Protective Order Setting the Time, Place, and Manner of Depositions; And in the Alternative, Defendant’s Opposition to Plaintiff’s Motion to Compel Depositions.” The hearing date on that motion is May 15, 2024. Based on the caption, as well as the date stated, it is not a proper opposition to plaintiff’s motion to compel. On April 3, 2024, defendant filed essentially the same document but captioned it as defendant’s “Opposition to Plaintiff’s Motion to Compel Depositions; And in the Alternative, Defendant’s Motion for a Protective Order.” The date listed is the correct date of April 10, 2024.

Trial is scheduled for September 25, 2024.

Analysis

            Timeliness

By way of a footnote in her reply, plaintiff objects to the opposition on the basis that it was late filed. Opposition papers are required to be filed and served at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) April 1, 2024 was a court holiday. To be timely, the opposition was required to be filed no later than March 27, 2024. Even if the first document filed by defendant were considered a proper opposition rather than an independent noticed motion, it was untimely. The actual opposition was filed seven calendar days late.

“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, rule 3.1300(d).)

Plaintiff fails to show any prejudice by the late filing and has not requested a continuance to file the reply.

The court will exercise its discretion and consider the late filed opposition. However, counsel is reminded to comply with all statutory requirements with respect to any future filings.

            Motion to Compel Depositions

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, subd. (a).)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010.)

“(a) A party desiring to take the oral deposition of any person shall give notice in writing. The deposition notice shall state all of the following, in at least 12-point type:

“(1) The address where the deposition will be taken.

“(2) The date of the deposition, selected under Section 2025.270, and the time it will commence.

“(3) The name of each deponent, and the address and telephone number, if known, of any deponent who is not a party to the action. If the name of the deponent is not known, the deposition notice shall set forth instead a general description sufficient to identify the person or particular class to which the person belongs.

“(4) The specification with reasonable particularity of any materials or category of materials, including any electronically stored information, to be produced by the deponent.

“(5) Any intention by the party noticing the deposition to record the testimony by audio or video technology, in addition to recording the testimony by the stenographic method as required by Section 2025.330 and any intention to record the testimony by stenographic method through the instant visual display of the testimony. If the deposition will be conducted using instant visual display, a copy of the deposition notice shall also be given to the deposition officer. Any offer to provide the instant visual display of the testimony or to provide rough draft transcripts to any party which is accepted prior to, or offered at, the deposition shall also be made by the deposition officer at the deposition to all parties in attendance. Any party or attorney requesting the provision of the instant visual display of the testimony, or rough draft transcripts, shall pay the reasonable cost of those services, which may be no greater than the costs charged to any other party or attorney.

“(6) Any intention to reserve the right to use at trial a video recording of the deposition testimony of a treating or consulting physician or of an expert witness under subdivision (d) of Section 2025.620. In this event, the operator of the video camera shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties.

“(7) The form in which any electronically stored information is to be produced, if a particular form is desired.

“(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:

“(i) The deposition officer.

“(ii) The entity providing the services of the deposition officer.

“(B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.” (Code Civ. Proc., § 2025.220, subd. (a).)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)

Plaintiff’s notices fully comply with Code of Civil Procedure sections 2025.220 and 2025.230.

“(a) Unless the court orders otherwise under Section 2025.260, 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.

“(b) The deposition of an organization that is 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 organization’s principal executive or business office in California, or within the county where the action is pending and within 150 miles of that office.

“(c) Unless the organization consents to a more distant place, the deposition of any other organization shall be taken within 75 miles of the organization’s principal executive or business office in California.

“(d) If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization” (Code Civ. Proc., § 2025.250.)

Plaintiff seeks to take the depositions in Santa Barbara. There is no dispute that defendant is located in Santa Barbara. Santa Barbara is clearly a proper location for the depositions.

Absent a court order, or agreement of the parties, defendant’s demand that the depositions be taken remotely is not authorized by statute or any other authority. The relevant statutes make clear that, unless there is an agreement between the parties to take a deposition remotely, or order of the court, the deponent must appear in person.

“Any party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means . . .” (Cal. Rules of Court, rule 3.1010, subd. (b); italics added.) “A deponent must appear as required by statute or as agreed to by the parties and deponent.” (Id. at subd. (c).) By the plain language of the rule, the deponent is excluded from the option of appearing and participating remotely.

Defendant’s opposition is unpersuasive. Even if the court were to consider defendant’s opposition a proper motion for protective order, it is not persuasive. What is clear from the opposition is that defendant simply does not want the deposition in person because defense counsel would run up expenses by traveling to Santa Barbara from the east coast. Confusingly, defendant did agree, at one point, that the depositions could take place in person in San Diego. It is unclear how taking the deposition in San Diego would be any less expensive than taking it in Santa Barbara.

Simply put, the non-noticing party has no authority to unilaterally dictate the time, place, and manner of a deposition. While the parties are expected to coordinate mutually acceptable dates and times for the deposition, unless the court orders otherwise, it is up to the noticing party to select the manner and location of the deposition as long as those specifics comply with the Code of Civil Procedure. Here, the notices comply. The fact that defense counsel may be located outside of California is not a consideration in making this ruling. If defendant made the choice to retain an attorney that is located on the east coast, or if the defense firm chose to assign a non-local attorney to the case, defendant must, and should, bear the consequences of those decisions. It should have no impact on plaintiff.

Plaintiff’s motion to compel the depositions will be granted.

            Sanctions

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

The court would have been inclined to award sanctions in favor of plaintiff. However, on January 31, 2024, plaintiff’s counsel Robert Montes, Jr. sent an email to defense counsel and stated: “I tried calling you regarding our impasse on live/remote depositions. Please let me know whether you are in agreement with live depositions. If you’re not, that’s fine. I will simply go into court and ask for the same. I’m not looking for sanctions, just an order stating that they are to be live. . . .” (Montes Dec., Exh. 5; italics added.)

Because plaintiff’s counsel made an affirmative representation to defense counsel that they would not be seeking sanctions, it would be unjust to award them. No sanctions shall be ordered.