Armando Cruz v. HC Assetco, LLC, et al

Case Number

23CV04349

Case Type

Hearing Date / Time

Wed, 07/24/2024 - 10:00

Nature of Proceedings

Motion To Sanction Plaintiff Armando Cruz For Failure To Appear At Deposition; To Order Him To Appear At Deposition Or To Show Cause Why The Case Should Not Be Dismissed

Tentative Ruling

For Plaintiff Armando Cruz: Self Represented

For Defendants HC Assetco, LLC dba Hotel Californian and Foley Entertainment Group, LLC: Melissa J. Fassett, Jeff F. Tchakarov, Price, Postel & Parma LLP

RULING

For all reasons discussed herein, the motion of Defendants to sanction Plaintiff and order Plaintiff to appear at deposition or show cause why the case should not be dismissed is denied without prejudice. Defendants shall serve Plaintiff with notice of the Court’s ruling herein, by mail at all available mailing addresses, and file a proof of service of the notice ordered herein.

The trial date of 12/4/24 and MSC date of 10/25/24 and final CMC date of 9/4/24 are all confirmed.

Background

On October 4, 2023, Plaintiff Armando Cruz (Cruz) filed a complaint against Defendants HC Assetco, LLC, doing business as Hotel Californian (the Hotel) and Foley Entertainment Group, LLC (Foley) (collectively, Defendants) alleging six causes of action: (1) disability discrimination in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA); (2) failure to engage in a good faith interactive process in violation of FEHA; (3) failure to accommodate in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to take all reasonable steps to prevent discrimination and/or retaliation in violation of FEHA; and (6) wrongful termination in violation of public policy. As alleged in the complaint:

Cruz was hired by Defendants in February 2021 as a busboy working at a restaurant on site of the Hotel. On January 20, 2022, Cruz began to feel symptoms of illness and sought medical treatment. On January 28, 2022, Cruz went to the hospital at which point he received a doctor’s note placing him on leave through January 31, 2022. Cruz went to work on January 29, 2022, and showed the note he received from the hospital to Defendants. On February 1, 2022, Cruz returned to work and was given a termination letter with the reason for termination listed as a voluntary resignation effective January 28, 2022.

On January 12, 2024, Defendants filed an answer to the complaint of Cruz generally denying its allegations and asserting twenty-two affirmative defenses.

Court records reflect that on April 16, 2024, counsel for Cruz filed a motion to be relieved as counsel of record (the motion to be relieved), asserting as grounds for the motion to be relieved a breakdown in the relationship between counsel and Cruz such that counsel could no longer represent Cruz. (See Apr. 16, 2024, Motion & Decl. of attorney Ryan D. Handley.) On May 29, 2024, the Court issued its ruling granting the motion to be relieved. On June 1, 2024, the Court signed an order granting the motion to be relieved which was entered on June 3, 2024.

On June 24, 2024, Defendants filed the present motion for an order sanctioning Cruz for failing to appear at his deposition and compelling Cruz to appear for his deposition or show cause why the present action should not be dismissed.

In support of the present motion, Defendants submit the declaration of their counsel, Melissa Fassett (Fassett), who states that she served a notice to take the deposition of Cruz on January 12, 2024 (the first notice), setting the deposition on March 1, 2024. (Fassett Decl., ¶ 4 & Exh. 1.) On February 26, 2024, Fassett received objections from Cruz stating he would not appear at the deposition because Cruz and his counsel were not available on March 1, 2024. (Id. at ¶ 5 & Exh. 2 at p. 1.)

Fassett thereafter engaged in discussions with counsel for Cruz about rescheduling the deposition of Cruz and confirmed one of the days offered by Cruz’s counsel for the deposition. (Fassett Decl., ¶ 6 & Exh. 3.) Fassett served a first amended notice of the deposition of Cruz (the second notice), setting the date of the deposition on April 5, 2024, which Fassett asserts is the date agreed to by Cruz’s counsel. (Id. at ¶ 7 & Exh. 4.) On April 1, 2024, Fassett received objections to the deposition from Cruz’s counsel stating that Cruz would not be appearing at the deposition on April 5, 2024. (Id. at ¶ 7 & Exh. 5.)

On April 17, 2024, Fassett served a second amended notice of taking the deposition of Cruz (the third notice), setting the deposition for June 14, 2024. (Fassett Decl., ¶ 9 & Exh. 6.) On June 5, 2024, Fassett received a “Notice of Entry of Order” authorizing Cruz’s counsel to withdraw as counsel of record for Cruz. (Id. at ¶ 10.) Fassett then sent an email to Cruz at Cruz’s last known email address to confirm his deposition but did not receive any response. (Ibid.)

Fassett appeared with a Court reporter for the deposition of Cruz on June 14, 2024, but Cruz did not appear. (Fassett Decl., ¶ 11 & Exh. 8 [affidavit of non-appearance].) Fassett sent Cruz an email and a letter informing Cruz that she would seek relief from the Court and request an order to show cause re dismissal, but did not receive a response to those communications. (Id. at ¶ 12 & Exhs. 9 & 10.)

Cruz has not filed an opposition to the present motion.

Analysis

There exist procedural problems with the present motion.

Relevant here, Code of Civil Procedure section 2025.450 provides that “[i]f, 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 …, the party giving the notice may move for an order compelling the deponent’s attendance and testimony ….” (Code Civ. Proc., § 2025.450, subd. (a).) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise stated.) If a motion filed under subdivision (a) of section 2025.450 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).)

Available information and evidence show that Defendants served the first notice, the second notice, and the third notice on counsel for Cruz. (Fassett Decl., Exh. 1 at PDF p. 22; Exh. 4 at PDF p. 67; Exh. 6 at PDF p. 107.) The third notice was served on April 17, 2024, one day after counsel filed and ostensibly served the motion to be relieved on Fassett. (Id. at Exh. 6 at PDF p. 107; see also Apr. 16, 2024, Motion at PDF p. 3 [proof of service of motion to be relieved].) However, the Court has no record of a deposition notice having been properly or effectively served on Cruz in his self-represented capacity, after the motion to be relieved was granted by the Court. There also exists insufficient information to permit the Court to determine whether Cruz was provided with a copy of any deposition notice by his former counsel, including the third notice which was served on counsel after counsel filed the motion to be relieved. For these reasons, Defendants have failed to offer facts sufficient to demonstrate effective service of a deposition notice on Cruz for purposes of the motion authorized under section 2025.450.

Moreover, Court records reflect that counsel for Cruz served Cruz with the motion to be relieved at two different mailing addresses, one which is located in Santa Barbara, California, and the other in Visalia, California. Available information demonstrates that the present motion was served on Cruz at the address in Santa Barbara but not at the address in Visalia. In addition, to the extent the present motion was also served on Cruz by email, there is no information or evidence to demonstrate that Cruz affirmatively consented to electronic service of documents filed in this action. (See Cal. Rules of Court, rule 2.251(c)(3)(B).) For these reasons, the available information is insufficient to establish effective service of the present motion on Cruz.

Because the information and evidence offered by Defendants in support of the motion is insufficient to show that Cruz was effectively served with a deposition notice, the Court will deny the motion without prejudice to the future filing of any procedurally appropriate motion by Defendants to compel Cruz to appear for a deposition or for sanctions, if appropriate. The Court will further order Defendants to serve Cruz by mail, at all available mailing addresses, notice of the Court’s ruling herein and to file a proof of service of the notice.