Armando Cruz v. HC Assetco, LLC, et al

Case Number

23CV04349

Case Type

Hearing Date / Time

Wed, 09/25/2024 - 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 is granted, in part. Plaintiff Armando Cruz shall appear for a deposition within 20 days of 9/25/24. The parties shall, on or before 9/27/24, and in accordance with this ruling, meet and confer in good faith to mutually select a date for the deposition ordered herein. To the extent the parties engage in good faith efforts but are unable to mutually agree to a deposition date by October 2, 2024, Defendants may unilaterally select a date for the deposition of Cruz if Defendants provide Cruz with 10 days’ notice of the deposition.

The Trial Date of 12/4/24 and the MSC Date of 10/25/24 are 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 the site of the Hotel. On January 20, 2022, Cruz began to feel symptoms of illness and sought medical treatment. Cruz went to the hospital on January 28, 2022, at which point he received a doctor’s note placing him on leave through January 31, 2022. Cruz showed the note he received from the hospital to Defendants on January 29, 2022. 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, attorney Ryan D. Handley of the Moon Law Group, PC, (Handley) filed a motion to be relieved as counsel of record for Cruz (the motion to be relieved), asserting a breakdown in the attorney-client relationship such that Handley could no longer represent Cruz. (See Apr. 16, 2024, Motion & Handley Decl.) On June 1, 2024, the Court signed an order granting the motion to be relieved which was entered on June 3, 2024 (the June 3 Order).

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. Prior to the hearing, the Court issued a tentative ruling denying the motion due to a lack of sufficient information and evidence showing proper service of either the motion or a deposition notice on Cruz in his self-represented capacity.

On July 24, 2024, following oral argument during which counsel for Defendants presented oral argument, the Court issued its Minute Order (the Minute Order) continuing the hearing on the motion to permit Defendant’s counsel to provide the Court with adequate evidence of service.

On August 5, 2024, Defendants filed a supplemental brief which is supported by the declaration of Defendants’ counsel, Melissa Fassett (Fassett), who states that, prior to receiving the notice of entry of the June 3 Order which was served by former counsel for Cruz on June 5, 2024, she understood that she was obligated to send all pleadings to counsel of record for Cruz. (Supp. Fassett Decl., ¶ 6.) Though Fassett states that the notice of entry of the June 3 Order is attached to the Fassett declaration as exhibit 11, the Court’s copy does not include an exhibit 11.

Court records further reflect that on August 6, 2024, Defendants filed a supplemental proof of service of the present motion on Cruz.

On August 30, 2024, Fassett filed a supplemental declaration stating that on August 7, 2024, Fassett’s office received a call from a gentleman named Armando Cruz who stated that he received paperwork Fassett’s office mailed to the address in Valencia, California, that he has never lived in Santa Barbara, California, that he has never been employed at the hotel owned by Defendants in this action, and that he is not the same person as the Plaintiff in this action. (Fassett Decl., ¶ 4.)

The Court has no record of Cruz having filed an opposition to the present motion.

Analysis

The supplemental proof of service filed by Defendants on August 6, 2024, is sufficient to show that on August 5, 2024, Defendants ostensibly served the present motion on Cruz by mail at the addresses reflected in the Court’s records.

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.) Upon the granting by the Court of a motion filed under subdivision (a) of section 2025.450, “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).)

Information and evidence appearing in the original declaration of Fassett submitted in support of the motion is discussed more fully in the Minute Order. Briefly, the available information and evidence shows that on January 12, February 28, and April 17, 2024, Defendants served deposition notices on Cruz, through his former counsel. (Fassett Decl., ¶¶ 4, 7, & 9 & Exhs. 1, 4, & 6.) Cruz, through his former counsel, objected to each of the deposition notices stating that he and his counsel were not available or would not appear for a deposition on the dates noticed by Defendants. (Id. at ¶¶ 5, 7; Exh. 2 at p. 1; Exh. 5.)

Available information and evidence further reflects that the April 17, 2024, deposition notice was served on counsel for Cruz one day after counsel filed and ostensibly served the motion to be relieved on Fassett. (Fassett Decl., Exh. 6 at PDF p. 107; see also Apr. 16, 2024, Motion at PDF p. 3 [proof of service of motion to be relieved].) Though service of the April 17, 2024, deposition notice on Cruz’s counsel was not improper, considering the grounds asserted in the motion to be relieved, there is some question regarding whether Cruz received a copy of that deposition notice and whether or not Cruz understood his obligation to appear for a deposition on the date reflected in the April 17, 2024, notice.

In addition, Defendants do not dispute that on June 5, 2024, Fassett received notice of the June 3 Order authorizing the withdrawal of Cruz’s former counsel of record. (Fassett Decl. at ¶ 10; Supp. Fassett Decl. at ¶ 5.) Though Fassett sent an email to Cruz at Cruz’s last known email address to confirm the deposition after Fassett received notice of his counsel’s withdrawal, Cruz did not respond to Fassett’s communication. (Fassett Decl., ¶ 10.) As further discussed in the Minute Order, the Court has no record of any deposition notice having been served on Cruz in his self-represented capacity following the withdrawal of his counsel.

Under the circumstances present here including the timing of the withdrawal of Cruz’s counsel, and for all reasons discussed above, the Court finds that the imposition of monetary sanctions against Cruz at this stage of the proceedings would be unjust. For these same reasons, the Court declines to issue an order to show cause for why this action should not be dismissed. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)

Though the Court will deny Defendants’ request for sanctions, to the extent Defendants request an order compelling Cruz to appear for a deposition, the Court will grant the motion, in part, and order Cruz to attend a deposition within 20 days of 9/25/24. The Court will further order the parties to, on or before 9/27/24, meet and confer in good faith to mutually select a date for the deposition ordered herein. To the extent the parties engage in good faith efforts but are unable to mutually agree to a deposition date by October 2, 2024, Defendants may unilaterally select a date for the deposition of Cruz if Defendants provide Cruz with 10 days’ notice of the deposition.