This case was last updated from Los Angeles County Superior Courts on 01/13/2021 at 13:10:33 (UTC).

MAXINE HUGHES VS RESTORE HEALTH AND WELLNESS CENTER LLC ET A

Case Summary

On 04/03/2018 MAXINE HUGHES filed a Labor - Wrongful Termination lawsuit against RESTORE HEALTH AND WELLNESS CENTER LLC ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0224

  • Filing Date:

    04/03/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

YOLANDA OROZCO

 

Party Details

Plaintiff and Petitioner

HUGHES MAXINE

Defendants and Respondents

LEON ERIC

DOES 1 TO 50

RESTORE HEALTH AND WELLNESS CENTER LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

PAIRAVI EDWIN ESQ.

PAIRAVI LAW PC

PC PAIRAVI LAW

PAIRAVI EDWIN `

Attorney at Pairavi Law, P.C.

1875 Century Park E `480 Suite 1025

Los Angeles, CA 90067

PAIRAVI EDWIN

Defendant and Respondent Attorneys

KESSEL & ASSOCIATES

MEGRABYAN ARMINEH

KESSEL ELIZABETH M.

KAMAU VANESSA E

DARROLL EILEEN PALMER

KAMAU VANESSA E.

DARROLL EILEEN

 

Court Documents

Substitution of Attorney

10/14/2020: Substitution of Attorney

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEPOSITION SUBPOENA)

1/8/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEPOSITION SUBPOENA)

Motion to Quash - MOTION TO QUASH THE DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO BOARD OF BEHAVIORAL HEALTH SCIENCES [C.C.P. 1987.1, 1987.2]

12/13/2019: Motion to Quash - MOTION TO QUASH THE DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO BOARD OF BEHAVIORAL HEALTH SCIENCES [C.C.P. 1987.1, 1987.2]

Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

12/5/2019: Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Reply - REPLY PLAINTIFF'S RESPONSE TO DEFENDANT'S EX PARTE APPLICATION

11/7/2019: Reply - REPLY PLAINTIFF'S RESPONSE TO DEFENDANT'S EX PARTE APPLICATION

Declaration - DECLARATION OF EILEEN P DARROLL IN SUPPORT OF MOTION TO COMPEL

10/8/2019: Declaration - DECLARATION OF EILEEN P DARROLL IN SUPPORT OF MOTION TO COMPEL

Motion to Quash - MOTION TO QUASH THE DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS [C.C.P. 1987.1, 1987.2]

10/11/2019: Motion to Quash - MOTION TO QUASH THE DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS [C.C.P. 1987.1, 1987.2]

Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF EILEEN P. DARROLL IN SUPPORT OF REPLY TO OPP TO MOTION TO COMPEL

10/18/2019: Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF EILEEN P. DARROLL IN SUPPORT OF REPLY TO OPP TO MOTION TO COMPEL

Declaration - DECLARATION OF JOSHUA M. MOHRSAZ -[RES ID: 0647]

9/20/2019: Declaration - DECLARATION OF JOSHUA M. MOHRSAZ -[RES ID: 0647]

Declaration - DECLARATION OF ANDREW LEVANDER

9/13/2019: Declaration - DECLARATION OF ANDREW LEVANDER

Opposition - OPPOSITION OPPOSITION TO MOTION TO DISQUALIFY

9/13/2019: Opposition - OPPOSITION OPPOSITION TO MOTION TO DISQUALIFY

Declaration - DECLARATION OF LESLIE STEINMETZ

8/23/2019: Declaration - DECLARATION OF LESLIE STEINMETZ

Declaration - DECLARATION OF VINSENT FRANKE

8/23/2019: Declaration - DECLARATION OF VINSENT FRANKE

Reply - Reply to Opposition to Demurrer to Plaintiff's Complaint

2/25/2019: Reply - Reply to Opposition to Demurrer to Plaintiff's Complaint

SUMMONS -

4/3/2018: SUMMONS -

CIVIL DEPOSIT -

8/13/2018: CIVIL DEPOSIT -

NOTICE OF CHANGE OF ADDRESS

7/26/2018: NOTICE OF CHANGE OF ADDRESS

NOTICE OF CASE MANAGEMENT CONFERENCE

7/13/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

172 More Documents Available

 

Docket Entries

  • 10/18/2021
  • Hearing10/18/2021 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/07/2021
  • Hearing10/07/2021 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/13/2021
  • Hearing08/13/2021 at 09:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 01/08/2021
  • Docketat 09:00 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 11/30/2020
  • Docketat 09:30 AM in Department 31, Yolanda Orozco, Presiding; Post-Mediation Status Conference - Not Held - Advanced and Continued - by Court

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  • 11/19/2020
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Ex Parte Application (TO CONTINUE FINAL STATUS CONFERENCE, TRIAL AND RELATED DEADLINES [DECLARATIONS OF EILEEN P. DARROLL AND MELINDA BARTOLONI FILED HEREWITH]) - Held - Motion Granted

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  • 11/19/2020
  • DocketNotice of Ruling; Filed by Eric Leon (Defendant); Restore Health And Wellness Center, LLC (Defendant)

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  • 11/19/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application TO CONTINUE FINAL STATUS CONF...)); Filed by Clerk

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  • 11/18/2020
  • DocketDeclaration (DECLARATION OF EILEEN P. DARROLL IN SUPPORT OF DEFENDANT?S EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL); Filed by Eric Leon (Defendant); Restore Health And Wellness Center, LLC (Defendant)

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  • 11/18/2020
  • DocketDeclaration (DECLARATION OF MELINDA BARTOLONI IN SUPPORT OF DEFENDANT'S EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL, A??'D RELATED DEADLINES); Filed by Eric Leon (Defendant); Restore Health And Wellness Center, LLC (Defendant)

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237 More Docket Entries
  • 04/20/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/20/2018
  • DocketProof-Service/Summons

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  • 04/10/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/10/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/10/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/10/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/03/2018
  • DocketComplaint; Filed by Maxine Hughes (Plaintiff)

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  • 04/03/2018
  • DocketSummons; Filed by Maxine Hughes (Plaintiff)

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  • 04/03/2018
  • DocketCOMPLAINT

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  • 04/03/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC700224    Hearing Date: March 03, 2020    Dept: 31

MOTION FOR TERMINATING OR OTHER SANCTIONS IS DENIED.

Relevant Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC (“Restore”); Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

  2. Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

  3. Sexual Harassment (Government Code § 12940 et seq.);

  4. Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

  5. Retaliation (Government Code § 12940 et seq.); and

  6. Constructive Wrongful Termination in Violation of Public Policy.

    On October 25, 2019, the Court granted Defendants’ motion to compel Plaintiff to produce documents and appear for a further deposition. The Court ordered Plaintiff and her counsel of record to pay sanctions in the amount of $1,500.00 to Defendants within 30 days. The Court further ordered Plaintiff to appear for the second deposition within 20 days, or on such other date to which the parties may agree.

    Defendants move for an order granting terminating, issue, and/or evidentiary sanctions against Plaintiff on the ground that she has willfully and intentionally violated this Court’s October 25, 2019 order.

    Legal Standard

    Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., § 2023.030, subd. (d)(3).)

    The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

    Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

    Evidentiary Objections

    Plaintiff objects to Defendants’ Reply and supporting Declaration of Eileen Darroll as untimely. Plaintiff asserts that despite the deadline for Defendants’ Reply being February 25, 2020, Defendants filed their Reply on February 27, 2020.

    The Court finds that Defendants’ Reply is untimely. No courtesy copy of the Reply was delivered to the Court thus the Court did not have the benefit of having Defendants’ Reply. Accordingly, pursuant to CRC Rule 3.1300(d), the Court exercises its discretion and disregards Defendants’ untimely Reply.

    Discussion

    Defendants move for an order granting terminating sanctions or, in the alternative, issue and evidentiary sanctions. Defendants seek issue sanctions establishing the following issues for the remainder of the action:

  1. Plaintiff suffered no emotional distress as a result of any conduct by Defendants as alleged in her complaint;

  2. Plaintiff suffered no loss of income as a result of any conduct by Defendants as alleged in her complaint; and

  3. Plaintiff was not constructively terminated.

As to evidentiary sanctions, Defendants request that the following be established for the remainder of the action:

  1. Plaintiff is prohibited from seeking to introduce any evidence by way of testimony, documents, or argument that she suffered any emotional distress as a result of any conduct by Defendants as alleged in her complaint;

  2. Plaintiff is prohibited from seeking to introduce any evidence by way of testimony, documents, or argument that she lost any income as a result of any conduct by Defendants as alleged in her complaint; and

  3. Plaintiff is prohibited from seeking to introduce any evidence by way of testimony, documents, or argument that she was forced to resign from her job at Restore as a result of any conduct by Defendants as alleged in her Complaint.

Defendants argue that Plaintiff has willingly failed to comply with the Court’s October 25, 2019 order, as Plaintiff has not produced a single document to Defendants and has not paid the $1,500.00 in sanctions ordered by this Court to be paid by November 24, 2019. (Darroll Decl. ¶ 6.) Defendants assert that the documents requested include (1) all documents that evidence any income Plaintiff received after she left Restore on September 16, 2016; (2) all documents that evidence any employment Plaintiff had after September 16, 2016; (3) all documents that track each of the allegations in her complaint; (4) all documents that evidence any treatment she received from any Health Care Provider for any alleged injuries Plaintiff suffered for the conduct alleged in her complaint; and (5) all documents that evidence that Plaintiff was constructively terminated. (Darroll Decl. ¶ 6.)

Defendants argue that this complete failure to pay the sanctions and failure to produce a single document is in blatant violation of this Court’s direct orders. Defendants contend that the effect of Plaintiff’s failure to comply with the Court’s order is to deprive Defendants of the evidence they need to defend against Plaintiff’s allegations. Defendants argue that they are further prevented from taking Plaintiff’s deposition without the documents. Defendants assert that since Plaintiff and her counsel have completely ignored the Court’s prior order to pay sanctions and produce evidence, there is no lesser sanction that would cure the willful failure, and terminating sanctions are appropriate.

Defendants contend that Plaintiff testified in deposition that she has been receiving treatment from Wendy Ashley for emotional distress she suffered since October 2016. (Darroll Decl. ¶ 7.) Defendants argue that Plaintiff has never produced a single document that demonstrates that (1) she ever obtained treatment from Wendy Ashley or anyone else for any emotional injuries she purportedly suffered, and (2) any document that shows she paid for treatment from Wendy Ashley or anyone else for any emotional injuries she purportedly suffered. (Darroll Decl. ¶ 7.)

Defendants assert that additionally, Plaintiff, prior to the motion to compel and after it was filed, produced 5 checks from income she received from Profound Treatment Center. Defendants contend that they subpoenaed Profound, which produced at least 20 checks to Plaintiff. (Darroll Decl. ¶ 8.) Defendants argue that it is thus abundantly clear that Plaintiff is withholding evidence that disproves her claims.

Defendants further assert that the documents requested and not produced will show that Plaintiff left Restore to take another job and she was not constructively terminated from her job. Defendants contend that they have the sworn testimony of two witnesses attesting to the fact that Plaintiff left Restore to work at the Beach House Treatment Center, following her supervisor, Melissa Simon. Defendants argue that Plaintiff denies this and has refused to produce the documents responsive to this request. (Darroll Decl. ¶ 9.)

Defendants assert that on January 13, 2020 the Court quashed the subpoena to Wells Fargo Bank. Defendants contend that accordingly, Defendants have no other way to obtain this relevant information.

In opposition, Plaintiff argues that Defendants cannot establish that Plaintiff disobeyed a Court order, let alone willfully disobeyed such an order; that there has been a history of abuse; or that less severe sanctions would not produce compliance with the discovery rules. Plaintiff asserts that contrary to Defendants’ arguments that Plaintiff has not produced any documents to Defendants, on June 28, 2018, Plaintiff produced all documents within her possession, custody, or control, including pay stubs from Defendants, documents she received from Defendants, her DFEH complaint, pay stubs showing mitigation of damages, including checks from Profound Treatment Center, and tax documents showing mitigation of damages. (Pairavi Decl. ¶ 5, 14, Exh. F.) Plaintiff contends that additionally, on April 30, 2019, Beach House certified that it has no records pertaining to Plaintiff (Pairavi Decl. ¶ 15, Exh. G); on August 22, 2019, Beach House’s COO declared that Plaintiff never worked for Beach House (Pairavi Decl. ¶ 16, Exh. H); on October 10, 2019, Plaintiff produced all documents within her possession, custody, and control concerning mitigation of damages (Pairavi Decl. ¶ 13, 14, Exh. F); and on November 8, 2019 Wendy Ashley submitted a certification that she treated Plaintiff for emotional distress but does not have records because they were lost when she moved offices (Pairavi Decl. ¶ 20, Exh. J). Plaintiff argues that Defendants, in essence, attempt to reargue the motion to quash that the Court granted insofar as they contend they are entitled to Plaintiff’s banking records.

Plaintiff asserts that any failure to comply with the Court order to take the deposition of Plaintiff is entirely the product of Defendants failure to notice a deposition. Plaintiff contends that Defendants never noticed or attempted to schedule the second deposition ordered by the Court on October 25, 2019. (Pairavi Decl. ¶ 29, 33.) Plaintiff argues that instead, defense counsel informed Plaintiff that she would be unavailable and out of town until November 15, 2019 despite the November 14, 2019 deadline to take Plaintiff’s deposition. (Pairavi Decl. ¶ 30, Exh. O.)

Plaintiff finally asserts that on February 7, 2020, Plaintiff paid sanctions owed to Defendants. (Pairavi Decl. ¶ 37.) As such, Plaintiff’s purported failure to pay sanctions cannot serve as a basis for sanctions.

The Court finds that terminating, issue, and evidentiary sanctions are not warranted at this time. Nothing before the Court indicates that a lesser sanction would fail to curb any purported discovery abuse.

Despite Plaintiff’s contention that she did not violate the Court’s October 25, 2019 Order, the Court finds that Plaintiff has, in fact, not produced documents pursuant to the order granting Defendants’ motion to compel discovery. While Plaintiff asserts that all documents that are within her possession, custody, or control were produced prior to Plaintiff’s deposition, the Court made clear at the October 25, 2019 hearing that the issue at hand was that at deposition, Plaintiff testified to having documents responsive to Defendants’ requests but did not produce them at that time. The Court thus compelled Plaintiff’s responses to the requests. If it is Plaintiff’s position that all documents within her possession, custody, or control have been produced, Plaintiff is required to submit an affidavit attesting to the same in order to comply with the Court’s October 25, 2019 Order. Such an affidavit would quell Defendants’ concern that Plaintiff is withholding documents.

Additionally, while the Court quashed the deposition subpoena served upon Wells Fargo Bank, that did not absolve Plaintiff of her obligation to provide documents that “evidence any income [she] received after September 16, 2016.” The Court quashed the deposition subpoena served on Wells Fargo Bank on the grounds that the subpoena was overly broad, as it sought all checks deposited into Plaintiff’s account and all documents that reflected any deposits into Plaintiff’s account after September 16, 2016. Such a request is overbroad as all deposits are not directly relevant to Defendants’ defenses, for it is possible that some deposits made into Plaintiff’s account would not reflect Plaintiff’s earned income, which is what is at issue here. Still, if there exist records that evidence any of Plaintiff’s earned income since September 16, 2016, Plaintiff is required to produce them. Similarly, if deposit records exist at Plaintiff’s bank evidencing payments from some kind of employment, these are documents within her control and must be produced.

Defendants are nevertheless incorrect in their argument that they have no other way of obtaining the relevant information they seek. In the Court’s January 8, 2020 Order quashing the deposition subpoena issued to Wells Fargo Bank, the Court noted that Defendants had subpoenaed records from at least three of Plaintiff’s subsequent employers. The Court held that Defendants thus had access to the same relevant information that they sought through the Wells Fargo Bank subpoena.

Moreover, Defendants make a point to emphasize that they received at least 20 checks from Profound Treatment Center while Plaintiff only produced 5 checks. The Court is not persuaded by Defendants’ argument that such circumstances evidence Plaintiff’s deliberate attempt to withhold evidence that may disprove her claims. Plaintiff is only required to produce documents that are within her possession, custody, or control. If Plaintiff was only in possession of 5 checks issued by Profound Treatment Center, that was all that Plaintiff was capable of producing in response to Defendants’ request.

Based on the foregoing, the Court finds that although Plaintiff has not complied with this Court’s October 25, 2019 Order, such a failure to comply was not willful. It appears that, based on the arguments in opposition to this motion, Plaintiff’s counsel did not fully understand Plaintiff’s obligation with regards to the October 25, 2019 Order. The Court, now having clarified the October 25, 2019 Order, expects Plaintiff’s immediate compliance with the same. There is no concrete evidence of any willful misconduct on the part of Plaintiff.

Defendants’ motion for terminating, issue, and/or evidentiary sanctions is DENIED. The Court declines Plaintiff’s request for sanctions against Defendants.

Moving party to give notice.

Case Number: BC700224    Hearing Date: January 13, 2020    Dept: 31

MOTION TO QUASH SUBPEONA IS GRANTED.

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

  2. Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

  3. Sexual Harassment (Government Code § 12940 et seq.);

  4. Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

  5. Retaliation (Government Code § 12940 et seq.); and

  6. Constructive Wrongful Termination in Violation of Public Policy.

    Legal Standard

    California Code of Civil Procedure section 1987.1, subdivision (a) provides:

    If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

    (Code of Civ. Proc., § 1987.1(a).) There is no requirement that the motion contain a meet and confer declaration. (See Code of Civ. Proc., § 1987.1.)

    “Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s ‘inalienable right of privacy’ provided by” Article 1, section 1 of the California Constitution. (See Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855-856.)

    Regarding the right of privacy, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371; Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 657.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

    “The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Id.)

    Discussion

    Plaintiff moves to quash the deposition subpoena for production of business records issued by Defendants to Board of Behavior Health Sciences on November 11, 2019. (Scalia Decl. ¶ 12.) Plaintiff requests that the subpoena be quashed in its entirety or, in the alternative, be modified to seek only the records relating to the payroll records issued by Dr. Ashley, if any; documents evidencing the amount of time Plaintiff worked for Dr. Ashley, if any; and psychological records at issue in this instant lawsuit related to the harassment and post-termination emotional distress.

    Medical & Employment Records

    It is well established that medical records are afforded constitutional protection under a persons’ right to privacy. “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff's past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

    Moreover, Courts have found that “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097; see Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 9-10; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 530.) Because the balance between public interest in preserving confidential information in personnel records outweighs the interest of a private litigant in obtaining the information, the party seeking confidential records must demonstrate a compelling need for the records. (See San Diego Trolley, Inc., supra, 87 Cal.App.4th at 1097).

    The subpoena served on the Board of Behavior Health Sciences requests:

  1. Any and all documents that reflect supervision hours by Wendy Ashley, LCSW 19001 for Maxine Hughes, LMFT 93757, including but not limited to:

    1. In State Experience Verification

    2. Weekly Summary of Experience

    3. Supervisor Responsibility Statement

    4. Weekly Summary of Experience Hours

    5. Letter of Agreement – Volunteer Supervision; and

    6. Verification of Employment as Volunteer

  2. All letters of recommendation written by Wendy Ashley, LCSW 19001 on behalf of Maxine Hughes, LMTF 93757.

  3. Any policy promulgated by the Board of Behavioral Health Services that regulates Clinical Supervisors providing therapy to their current or former trainees.

  4. Any and all documents that refer to or reflect any Therapist/Patient relationship between Wendy Ashley, LCSW 19001 on behalf of Maxine Hughes, LMTF 93757.

  5. Any policy promulgated by the Board of Behavioral Health Sciences that regulates therapists providing business assistance to patients.

  6. Any policy promulgated by the Board of Behavior Health Sciences that requires therapists to maintain clinical notes on patient they treat.

  7. Any policy promulgated by the Board of Behavior Health Services that regulates a therapists’ obligation to comply with Court Orders to produce documents in a lawsuit.

(Scalia Decl., Exh. B.)

Plaintiff moves to quash the subpoena issued to the Board of Behavior Health Sciences arguing that Defendants cannot meet their burden of proving the medical documents and employment records sought are directly relevant to this litigation and cannot be obtained through less intrusive means.

Plaintiff asserts that first Defendants cannot meet their burden in justifying their overbroad subpoena because they have not and cannot establish he direct relevance of “[a]ny and all documents that refer or reflect any therapist/patient relationship between Wendy Ashley . . . on behalf of Maxine Hughes.” Plaintiff contends that the subpoena is not limited to the records related to this litigation: Plaintiff’s injuries relating to emotional distress which manifested in the form of “stress, anxiety, sadness, insomnia, depression, and mental anguish.” Plaintiff argues that instead, the subpoena makes broad requests seeking documents completely unrelated to the litigation for items for “any and all documents” regardless of whether those documents are related to Plaintiff’s injuries arising from this litigation. Plaintiff asserts that in fact, Defendants’ unlimited subpoena seeks documents specifically made inadmissible by Business and Professions Code section 4990.30(j), which provides that information provided to the board pursuant to a medical release is only admissible in actions by the Board of Behavioral Health Sciences.

As to the employment records sought, Plaintiff contends that Defendants cannot justify their subpoena seeking the entirety of Plaintiff’s employment records from subsequent employers or even the disciplinary records requested. Plaintiff argues that the only employment relevant to Plaintiff’s claims or Defendants’ defenses are earnings and benefits from subsequent employers for mitigation. Plaintiff asserts that Defendants cannot offer any explanation how any of these documents are directly relevant to the litigation. Plaintiff contends that Defendants’ subpoena is not temporally limited to her post termination efforts but instead seeks documents without any temporal limitation, and thus seeks documents even prior to Plaintiff’s employment with Defendants. Plaintiff argues that these past employment records have no bearing on this litigation.

Plaintiff asserts that Defendants additionally seek any letters of recommendation by Dr. Ashley, which is in essence a performance review. Plaintiff contends that a letter of recommendation or performance review written by Dr. Ashley whether before or after her employment with Defendants have no bearing on whether Plaintiff suffered from discrimination and harassment in this instance. Plaintiff argues that Defendants will not be permitted to introduce evidence of Plaintiff’s work performance at any other employers to demonstrate that her work performance with Defendants was somehow deficient.

Plaintiff asserts that moreover, there are less intrusive means to obtain the relevant information sought. Plaintiff contends that the most notable less intrusive means to obtain the information is to limit the subpoenas to the injuries directly identified in discovery. Plaintiff argues that further, Defendants have already utilized less intrusive means insofar as Plaintiff has sat for a deposition, where Defendants inquired about Plaintiff’s mental and emotional distress as well as her treatment with Wendy Ashley. Plaintiff asserts that Defendants could also obtain the information regarding whether Plaintiff worked for Dr. Ashley through written discovery.

On January 8, 2020, Defendants withdrew their opposition to the instant motion in light of the comments by the Court regarding Plaintiff’s other motions to quash.

The Court finds that given Defendants’ failure to make any showing that the information sought by the subpoena is directly relevant to the litigation at hand, Plaintiff’s motion to quash the deposition subpoena served on the Board of Behavioral Health Sciences is GRANTED, in part. The subpoena is limited records relating to the payroll records issued by Dr. Ashley, if any; documents evidencing the amount of time Plaintiff worked for Dr. Ashley, if any; and medical records that evidence any treatment provided to Plaintiff for Plaintiff’s identified injuries such as emotional distress which manifests in the form of “stress, anxiety, sadness, insomnia, depression, and mental anguish.” No other documents should be produced pursuant to the subpoena.

Sanctions

Under Code of Civil Procedure section 1987.2(a), “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

Plaintiff seeks monetary sanctions against Defendants and their counsel of record Eileen P. Darroll, jointly and severally in the amount of $2,860.00 consisting of 3 hours spent drafting the moving papers, an anticipated 1 hour reviewing Defendant’s opposition, 2 hours drafting a reply, and 2 hours preparing for and attending the hearing on the instant motion billed at a rate of $350 per hour, plus the $60 filing fee.

The Court finds that Plaintiff is entitled to sanctions in the amount of reasonable expenses incurred in making the instant motion. Still, the Court finds that the amount of sanctions is excessive and therefore unreasonable. The Court thus awards reduced sanctions in the amount of $2,160.00 for 3 hours spent drafting the moving papers, 2 hours reviewing and drafting a reply, and 1 hour attending the hearing billed at a rate of $250 per hour, plus the $60 filing fee.

Conclusion

Plaintiff’s motion to quash deposition subpoena of business records is GRANTED, as set forth more fully above. Defendants and their counsel of record, Eileen P. Darroll, are ordered to pay monetary sanctions in the amount of $2,160.00 to Plaintiff within thirty (30) days of this order.

Case Number: BC700224    Hearing Date: January 08, 2020    Dept: 31

PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENAS IS GRANTED, IN PART.

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

  2. Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

  3. Sexual Harassment (Government Code § 12940 et seq.);

  4. Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

  5. Retaliation (Government Code § 12940 et seq.); and

  6. Constructive Wrongful Termination in Violation of Public Policy.

    Plaintiff moves to quash five deposition subpoenas for production of business records.

    Legal Standard

    California Code of Civil Procedure section 1987.1, subdivision (a) provides:

    If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

    (Code of Civ. Proc., § 1987.1(a).) There is no requirement that the motion contain a meet and confer declaration. (See Code of Civ. Proc., § 1987.1.)

    “Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s ‘inalienable right of privacy’ provided by” Article 1, section 1 of the California Constitution. (See Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 855-856.)

    Regarding the right of privacy, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371; Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 657.) If there is a serious invasion of a constitutional right to privacy, the party seeking the evidence must establish that the information sought is not only essential and directly relevant, but also that this information could not be discovered through less intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)

    “The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Id.)

    Evidentiary Objections

    Defendants submit objections to Plaintiff’s Separate Statement. The Court finds that the objections are immaterial to the Court’s disposition and therefore declines to rule upon them.

    Discussion

    Plaintiff moves to quash five deposition subpoenas for production of business records that were served on (1) BLVD Treatment Center; (2) Cliffside Malibu; (3) Southcoast Behavior Health; (4) Wells Fargo Bank, N.A.; and (5) Wendy Ashley, Mar Vista Therapy. Plaintiff seeks to quash the subpoenas in their entirety or, in the alternative, a modification of the subpoenas to seek only the records relating to the payroll records issued by employers and medical records at issue in this instant lawsuit related to post-termination emotional distress.

    The Court notes at the outset that Plaintiff has filed a single motion to quash the subpoenas issued to five distinct parties. This is improper, as each subpoena requires a separate motion to quash. The Court admonishes Plaintiff and will require Plaintiff to pay filings fees for the additional four motions at the time of hearing.

    The Court additionally notes that Defendants have withdrawn their subpoena as to BLVD Treatment Center. Accordingly, the Court turns to the remaining four subpoenas.

    Medical Records

    It is well established that medical records are afforded constitutional protection under a persons’ right to privacy. “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff's past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

    The subpoena issued to Wendy Ashley, Mar Vista Therapy requests:

  1. All documents that evidence any treatment notes for any treatment you provided to Maxine Hughes from May 1, 2015 to the present.

  2. All documents that reflect any payment made to you by Maxine Hughes for any treatment you provided to Maxine Hughes from May 1, 2015 to present.

  3. All communications between you and Maxine Hughes in any form, whether text, email, letter, facsimile or otherwise since May 1, 2015 to the present.

  4. All documents that evidence any diagnosis you provided to Maxine Hughes from May 1, 2015 to the present.

  5. All documents that evidence any diagnosis you made of Maxine Hughes from May 1, 2015 to the present.

  6. All documents that evidence any business relationship you have ever had with Maxine Hughes.

  7. All documents that evidence any personal relationship you have ever had with Maxine Hughes.

  8. All documents that evidence any working relationship you have ever had with Maxine Hughes.

(Scalia Decl., Exh. F.)

Plaintiff moves to quash the subpoena issued to Wendy Ashley arguing that medical and psychological records are within a constitutionally protected zone of privacy and Defendants cannot meet their burden of proving that the medical documents sought are directly relevant to this litigation and cannot be obtained through less intrusive means.

Plaintiff asserts that Defendants cannot meet their burden in justifying their overbroad subpoena because they have not and cannot establish the direct relevance of Plaintiff’s entire medical history with Wendy Ashley of Mar Vista Therapy. Plaintiff contends that the subpoena is not limited to the records related to this litigation: her injuries relating to emotional distress which manifest in the form of “stress, anxiety, sadness, insomnia, depression, and mental anguish.” Plaintiff argues that instead, the subpoena makes broad requests seeking documents completely unrelated to the litigation, including “all documents” relating to “any treatment” or “any diagnosis” regardless of whether those treatments or diagnoses are related to Plaintiff’s injuries arising from the litigation. Plaintiff asserts that any documents besides those relating to injuries directly identified are clearly not directly relevant to this matter. Plaintiff contends that Defendants are engaging in an improper fishing expedition into Plaintiff’s private records without any limitations on scope or the type of injuries Plaintiff has suffered. Plaintiff argues that the majority of these records are in no way relevant to the pending litigation, let alone directly relevant.

Plaintiff asserts that additionally, there are less intrusive means to obtain the relevant information sought. Plaintiff contends that most notably, Defendants can limit the subpoena to the injuries directly identified in discovery. Plaintiff argues that further, Defendants have already utilized less intrusive means insofar as Plaintiff has sat for deposition where Defendants inquired about Plaintiff’s mental and emotional distress as well as her treatment with Wendy Ashley. (Scalia Decl. ¶ 16.)

In opposition, Defendants argue that Plaintiff waived any privacy right she may have had in her treatment records from therapy by alleging that she received such therapy to treat the emotional distress she suffered from the conduct of Defendants. Defendants assert that Plaintiff has placed her psychological state in issue in this lawsuit and a party who puts a subject in issue in a lawsuit waives any right to privacy in that subject. (Vinson v. Superior Court (1987) 432 Cal.3d 833, 842.) Defendants contend that Plaintiff alleges and testified in deposition that she received therapy from Wendy Ashley because of the emotional distress she suffered as a direct result of Defendants’ conduct. Defendants argue that accordingly, Plaintiff waived any privacy right in her treatment records from Wendy Ashley. Defendants assert that Plaintiff’s counsel advised this Court on October 25, 2019, that they had been unable to obtain the treatment records from Wendy Ashley, however, Plaintiff alleges in her FAC and testified in deposition that she is still receiving therapy from Wendy Ashley. Defendants contend that Plaintiff thus has direct access to those records and has wrongfully failed to produce them.

As to Plaintiff’s argument regarding less intrusive means, Defendants argue that Plaintiff has blocked virtually all efforts by Defendants to obtain the information sought. Defendants assert that Plaintiff is clearly not producing all responsive documents and there are no less intrusive means to obtain this information. Defendants contend that they are not seeking any “unrelated medical or psychotherapeutic treatment history” from Plaintiff and thus, the cases cited by Plaintiff do not apply.

Defendants argue that Plaintiff responded in written discovery that she began treatment with Wendy Ashley on or around July 2016, two months before she resigned from Restore Health and Wellness. Defendants assert that at deposition, Plaintiff testified that she did not seek therapy until October 2016, a month after resigning from Restore. Defendants contend that Plaintiff’s deposition testimony directly contradicts her written discovery responses.

Defendants argue that they are not seeking Plaintiff’s entire medical history, as Plaintiff asserts. Defendants assert that instead, they are seeking records that demonstrate that Plaintiff actually received treatment from Wendy Ashley, which Defendants contend is doubtful based upon Plaintiff’s complete failure to produce any evidence of that treatment. Defendants argue that they are entitled to discovery of all of the mental health treatment records sought by the subpoenas.

Defendants assert that the documents related to the working relationship between Wendy Ashley and Plaintiff are directly relevant because the Behavior Health Board Rules prohibit dual relationships between Marriage and Family Therapists and their clients. Defendants contend that it is thus highly unlikely that Wendy Ashley treated Plaintiff after she worked for her. Defendants contend that they have evidence that Plaintiff had inappropriate relationships with at least 3 prior patients at Restore. Defendants argue that the evidence is directly relevant to Defendants’ after acquired evidence defense. Defendants assert that had they known about Plaintiff’s misconduct with clients, they would have terminated her immediately.

In reply, Plaintiff argues that Defendants’ theory of after acquired evidence is without merit and unsupported by either the law or facts. Plaintiff asserts that “[t]he doctrine of after-acquired evidence refers to an employer’s discovery, after an allegedly wrongful termination of employment or refusal to hire, of information that would have justified a lawful termination or refusal to hire.” (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407.) Plaintiff contends that the defense relates to misconduct arising from employment with the terminating employer, not the subsequent employer.

Plaintiff asserts that Defendants have made no motion or showing for a need for discovery of sexual conduct with other individuals pursuant to Code of Civil Procedure section 2017.220, and thus the basis for discovery is entirely inappropriate. Plaintiff contends that Defendants’ further implications that Plaintiff was employed by her therapist Dr. Ashley or that Plaintiff has inappropriate relationships with patients while employed by Defendants is unsupported by any evidence.

The Court finds that Defendants, as the parties seeking constitutionally protected information, have failed to establish direct relevance of the information sought to the instant litigation. The Court finds that Defendants’ requests are overbroad and seek information that is not relevant to the issues in the case at hand. Defendants’ after acquired evidence argument is unpersuasive and illogical. Moreover, Plaintiff has not waived her right to privacy in all of her medical records simply by alleging that she suffered emotional distress. Defendants are thus not entitled to any medical records beyond those that would purport to show Plaintiff’s treatment for any emotional distress she claims was caused by Defendants’ conduct.

Based on the foregoing, Plaintiff’s motion to quash the deposition subpoena served on Wendy Ashley is GRANTED, in part. The subpoena is limited to any medical records that evidence any treatment provided to Plaintiff for Plaintiff’s identified injuries such as emotional distress which manifests in the form of “stress, anxiety, sadness, insomnia, depression, and mental anguish.” No other documents should be produced pursuant to this subpoena.

Employment Records

Courts have found that “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097; see Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 9-10; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 530.) Because the balance between public interest in preserving confidential information in personnel records outweighs the interest of a private litigant in obtaining the information, the party seeking confidential records must demonstrate a compelling need for the records. (See San Diego Trolley, Inc., supra, 87 Cal.App.4th at 1097.)

The subpoenas issued to Cliffside Malibu and Southcoast Behavior Health request:

  1. Copies of any checks paid to Maxine Hughes after September 16, 2016.

  2. All documents in the personnel file of Maxine Hughes.

  3. Any written agreement between Maxine Hughes and Cliffside Malibu/ Southcoast Behavioral Health.

  4. All documents that evidence any discipline of Maxine Hughes.

(Scalia Decl., Exh. C-D.)

Plaintiff moves to quash the subpoenas issued to Cliffside Malibu and Southcoast Behavior Health arguing that Defendants cannot justify their subpoenas seeking the entirety of Plaintiff’s employment records from subsequent employers or even disciplinary records requested. Plaintiff asserts that the only employment records relevant to Plaintiff’s claims or Defendants’ defense are earnings and benefits records received from subsequent employers on the issue of mitigation, for which Plaintiff already provided in written discovery. (Scalia Decl. ¶ 17.) Plaintiff contends that whether Plaintiff complained, was disciplined, or had a poor evaluation by other employers has no bearing on whether Plaintiff was subject to discrimination and harassment in this case. Plaintiff argues that as such, Defendants will not be permitted to introduce such evidence at trial to try to show either that Plaintiff’s work performance with Defendants was somehow deficient, or to suggest that any disciplinary action taken by Defendants was warranted.

Plaintiff asserts that Defendants has stated that “we have evidence that your client uses her race to gain advantage whenever she can.” (Scalia Decl. ¶ 13, Ex. H.) Plaintiff contends that such speculation is insufficient to overcome Plaintiff’s privacy rights. Plaintiff argues that Defendants are improperly casting a wide net in hopes of finding any information they can use to undermine Plaintiff’s credibility and character without any factual or legal basis for doing so. (See e.g. Evidence Code § 1101(a).).

Defendants fail to address these subpoenas in their opposition.

Given Defendants’ failure to make any showing that the information sought by these subpoenas is directly relevant to the litigation at hand, Plaintiff’s motion to quash the deposition subpoenas served on Cliffside Malibu and Southcoast Behavior Health is GRANTED, in part. The subpoenas are limited to payroll records of Plaintiff, and no other documents should be produced.

Financial Records

The right to privacy under the state constitution extends to one's confidential financial affairs, and embraces confidential financial information in whatever form it takes, whether that form be tax returns, checks, statements, or other account information.  (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.)

  1. All checks deposited to account no. [redacted] after September 16, 2016.

  2. All documents that reflect any deposit into Account No. [redacted] after September 16, 2016.

  3. All documents that reflect any deposit into any account in the name of Maxine Hughes, Social Security No. [redacted] after September 16, 2016.

(Scalia Decl., Exh. E.)

Plaintiff seeks to quash the subpoena issued to Wells Fargo Bank, N.A. arguing that Defendants cannot justify the subpoena for financial records reflecting all deposits made into Plaintiff’s bank account from the time of her termination to the present. Plaintiff asserts that Defendants cannot demonstrate any reason why all deposits made into Plaintiff’s bank account are directly relevant to this litigation. Plaintiff contends that the only financial documents relevant to this case are payroll records, as they directly relate to the issue of mitigation of damages following the termination of her employment. Plaintiff argues that any other deposits made into her bank account, regardless of the reason, are not relevant to this litigation. Plaintiff asserts that the only purpose the request serves is to annoy, embarrass, and burden Plaintiff. Plaintiff contends that this is not a case involving financial impropriety where examining financial documents would be beneficial; this is a case arising out of the termination of Plaintiff’s employment with Defendants. Plaintiff argues that the Court must quash the deposition subpoena in its entirety.

Plaintiff asserts that moreover, there are less intrusive means to obtain relevant information sought, namely through Defendant’s other subpoenas seeking payroll records or through written discovery.

In opposition, Defendants argue that Plaintiff waived any privacy right in her financial documents by putting her finances in issue in this lawsuit. Defendants assert that Plaintiff also waived her privacy right in her financial information after September 16, 2016 by falsely stating in discovery responses that she earned no income between September 16, 2016 and mid-February 2018. Defendants contend that Plaintiff testified in deposition that she had possession of documents showing income, but has not produced those documents in this suit. Defendants argue that on October 7, 2019, Plaintiff’s counsel represented to Defendants that all income documents were being produced, which included 5 checks from Profound Treatment Center. Defendants assert that they subpoenaed Profound Treatment Center and obtained copies of at least 20 checks paid to Plaintiff that Plaintiff failed to produce at any time. Defendants contend that Plaintiff is playing hide the ball in this litigation and has blocked or attempted to block all of Defendants’ efforts to obtain discovery of information that is directly relevant to her claims and Defendants’ defenses.

Defendants argue that the records sought are not overbroad as Defendants seek only the deposits made by Plaintiff into her accounts after September 16, 2016.

The Court finds that Defendants have failed to establish Plaintiff’s financial records’ direct relevance to the litigation at hand. The Court finds that the requests are extremely overbroad and that the information sought can be obtained through less intrusive means. While Defendants argue that Plaintiff has blocked Defendants’ attempts to obtain discovery, any of Plaintiff’s purported discovery abuses do not waive her constitutionally protected right to privacy in her financial records. Defendants have indicated that they have subpoenaed records from at least three of Plaintiff’s subsequent employers. Accordingly, Defendants have access to the same relevant information that they seek here.

Based on the foregoing, Plaintiff’s motion to quash the subpoena served on Wells Fargo Bank, N.A. is GRANTED in its entirety.

Sanctions

Under Code of Civil Procedure section 1987.2(a), “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

Plaintiff seeks monetary sanctions against Defendants and their counsel of record Eileen P. Darroll, jointly and severally in the amount of $4,610.00 consisting of 6 hours spent drafting the moving papers, an anticipated 2 hours reviewing Defendants’ opposition, 2 hours drafting a reply, and 3 hours preparing for and attending the hearing billed at a rate of $350 per hour plus the $60 filing fee.

The Court finds that Plaintiffs are entitled to the amount of reasonable expenses incurred in making the instant motion, as the Court finds that the motion was opposed without substantial justification. Still, the Court finds that the amount of sanctions requested is excessive and therefore unreasonable. The Court thus awards reduced sanctions in the amount of $3,210.00 for 5 hours spent drafting the moving papers, 3 hours spent reviewing the opposition and preparing a reply, and 1 hour spent attending the hearing billed at a rate of $350 plus the $60 filing fee.

Conclusion

Plaintiff’s motions to quash deposition subpoena of business records are GRANTED, as set forth more fully above. Defendants and their counsel of record, Eileen P. Darroll, are ordered to pay monetary sanctions in the amount of $3,210.00 to Plaintiff within thirty (30) days of this order.

Moving party to give notice.

Case Number: BC700224    Hearing Date: October 25, 2019    Dept: 31

MOTION FOR ORDER DISQUALIFYING COUNSEL, AND FOR EVIDENTIARY SANCTIONS IS DENIED.

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

  2. Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

  3. Sexual Harassment (Government Code § 12940 et seq.);

  4. Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

  5. Retaliation (Government Code § 12940 et seq.); and

  6. Constructive Wrongful Termination in Violation of Public Policy.

Legal Standard

California Code of Civil Procedure section 128(a)(5) authorizes the Court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it. This authority necessarily includes disqualifying an attorney. (People ex. rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) Cal. 4th 1135, 1145.) The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. (Id.) However, the paramount concern must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar and the recognized and important right to counsel of one’s choosing must yield to considerations of ethics that run to the very integrity of our judicial process. (Id.)

In ruling on a motion to disqualify, the court should weigh: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116, 126.) Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.) In exercising that discretion, the trial court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Id.)

Evidentiary Objections

Defendants submit multiple objections to the Declaration of Edwin Pairavi. The objections are immaterial to the Court’s disposition. Accordingly, the Court declines to rule on them.

Discussion

Plaintiff moves for an order (1) disqualifying Defendants’ counsel of record, The Palmer Darroll Law Offices and Eileen P. Darroll (hereinafter “Darroll”); (2) granting terminating sanctions against Defendants, or in the alternative, evidentiary sanctions as to financial records belonging to Plaintiff improperly obtained by Defendants; and (3) granting monetary sanctions against Defendants and their counsel of record jointly and severally.

Motion to Disqualify

Standing

“Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. [Citation.] A “standing” requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. [Citation.] . . .

[A]bsent an attorney-client relationship, the moving party must have an expectation of confidentiality. For purposes of a disqualification motion, “[s]tanding arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.” [Citation.] Thus, some sort of confidential or fiduciary relationship must exist or have existed before a party may disqualify an attorney predicated on the actual or potential disclosure of confidential information. [Citations.]” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.)

Relying on Colyer v. Smith (C.D. Cal. 1999) 50 F.Supp.2d 966, the Second District Court of Appeal held: “[A] non-client might have standing to bring a disqualification motion. A non-client must establish a “personal stake” in the motion to disqualify opposing counsel that is sufficient to satisfy the standing requirements of Article III of the United States Constitution. [Citation.] “Generally, only the former or current client will have such a stake in a conflict of interest dispute.” [Citation.] But, where the ethical breach is “manifest and glaring” and so “infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims” [citation], a non-client might meet the standing requirements to bring a motion to disqualify based upon a third-party conflict of interest or other ethical violation. [Citations.]” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1357-1358.)

“Where the ethical breach is so severe that it “obstructs the orderly administration of justice,” the party who finds his claims obstructed has standing.” (Colyer v. Smith (C.D. Cal. 1999) 50 F.Supp.2d 966, 972.)

Defendants oppose the motion to disqualify first arguing that Plaintiff does not have standing to bring the motion. Defendants assert that Defendants’ counsel has never had a prior attorney-client relationship with Plaintiff. Defendants contend that there is no confidential or fiduciary relationship between Plaintiff and Defendants’ counsel.

In reply, Plaintiff argues that she has standing to bring the instant motion because Plaintiff has a legally cognizable non-hypothetical privacy interest in her private financial records. Plaintiff asserts that in determining whether this breach of Plaintiff’s privacy rights is “so severe that it obstructs the orderly administration of justice,” the Court should observe that this is not an isolated incident, but rather, constitutes but one example of a pattern of egregious and inappropriate conduct by Defendants and Darroll that has permeated this action from its inception.

The Court finds that Plaintiff does not have standing to move to disqualify Darroll, as the alleged ethical breaches are not so severe that it obstructs the orderly administration of justice. Plaintiff’s motion is based on multiple alleged ethical violations, the first of which alleges that Darroll procured paychecks issued by Plaintiff’s subsequent employers directly from third parties without issuing a subpoena pursuant to Code of Civil Procedure sections 1985.6(b) and 1985.3(b). Plaintiff further alleges that Darroll violated Rules of Professional Conduct 4.3 and 3.4 by telling unrepresented, percipient witnesses to not cooperate with Plaintiff’s attempts to gather facts and by providing those individuals with legal advice.

First, as to the allegation that Darroll acquired Plaintiff’s financial records through unlawful means, the Discovery Act is not the exclusive framework for dealing with evidence in a legal action. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1419.) “[T]hroughout the Discovery Act, “may” is quite obviously permissive. It means that a party who wants to can conduct discovery. If he doesn't want to, he doesn't have to. . . . [T]here are situations where documents can be obtained without the other party's cooperation (for example, under the Public Records Act or from a friendly third party or by hiring a trained investigator or on the internet).” (Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1164.) The procurement of documents outside of the discovery process is allowable so long as the information is obtained in a lawful fashion. (See Id. at 1165.) Here, Darroll was not required to issue a subpoena to obtain the information sought; if a friendly third party was willing to part with the information, Defendants were free to procure the information through that means.

Further, Plaintiff’s financial information was put at issue by Plaintiff’s complaint wherein she alleges that she “has been harmed in that she has suffered and will continue to suffer actual, consequential, and incidental financial losses, including without limitation loss of income, salary and benefits,” “Plaintiff has suffered and continues to suffer, substantial losses of earnings,” and the FAC seeks a “money judgment representing compensatory damages including past and future loss of earning, wages, tips.” (FAC ¶ 27-28, 37-38, 47-48, 56-57, 66-67, 73-74; FAC Prayer ¶ 1.) Defendants are entitled to information that would allow them to defend against the direct allegations in the FAC.

As to Plaintiff’s allegations that Darroll violated Rules of Professional Conduct 4.3 and 3.4 by telling unrepresented, percipient witnesses to not cooperate with Plaintiff’s attempts to gather facts and by providing those individuals with legal advice, Plaintiff’s arguments are directly contradicted by the Declaration of Andrew Levander. Levander attests to the fact that Darroll told him that he was “under no obligation to speak to her, or to opposing counsel, unless they served [him] with a subpoena to appear at a deposition” and that “she never instructed [him] not to speak to opposing counsel.” (Levander Decl. ¶ 2.) Levander further states that he “had decided [he] did not want to talk with [Plaintiff’s counsel] because of the way he was harassing [him].” (Levander Decl. ¶ 3.)

Nothing before the Court indicates that Darroll has violated any Rules of Professional Conduct or the Discovery Act. Accordingly, there is no ethical breach that is so severe that it obstructs the orderly administration of justice such that it confers standing on Plaintiff.

Based on the foregoing, Plaintiff’s motion to disqualify is DENIED for lack of standing.

Motion for Terminating, Evidentiary, and Monetary Sanctions

Where a party willfully disobeys a discovery order, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Evidence or issue sanctions may only be imposed after parties have violated discovery orders or where there are other exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) California Rules of Court Rule 3.1345(a)(7) requires that a motion “[f]or issue or evidentiary sanctions” be accompanied by a separate statement.

Additionally, “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process.” (CCP § 2023.030.)

As noted above, the Court finds that there has been no abuse or violation of the Discovery Act and there is no argument that Defendants have violated a discovery order. Further, no separate statement has been submitted in support of Defendants’ motion for issue or evidentiary sanctions.

Based on the foregoing, Plaintiff's motion for terminating, evidentiary, and monetary sanctions is DENIED. The Court further declines Defendants’ request to impose sanctions against Plaintiff and her counsel.

Conclusion

Plaintiff’s motion to disqualify counsel and for evidentiary and monetary sanctions is DENIED in its entirety.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS & APPEAR FOR FURTHER DEPOSITION

Background

On April 3, 2018, Plaintiff Maxine Hughes brought the instant action against Defendants Restore Health and Wellness Center, LLC; Eric Leon; and Does 1 through 50. On February 27, 2019, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Discrimination Based on Race and/or Color (Government Code § 12940 et seq.);

  2. Harassment Based on Race and/or Color (Government Code § 12940 et seq.);

  3. Sexual Harassment (Government Code § 12940 et seq.);

  4. Failure to Prevent Harassment and Hostile Work Environment (Government Code § 12940 et seq.);

  5. Retaliation (Government Code § 12940 et seq.); and

  6. Constructive Wrongful Termination in Violation of Public Policy.

Defendants move for an order compelling Plaintiff to produce all documents responsive to the Request for Production of Documents served with the Notice of Taking Deposition of Plaintiff and compelling the further deposition of Plaintiff Maxine Hughes.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿ 

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)  

Discussion

Defendants argue on August 8, 2019, Plaintiff appeared for her deposition without any documents. (Darroll Decl. ¶ 5.) Defendants assert that at the deposition, Plaintiff admitted that she had documents in her possession that were responsive to the documents requested in the Notice of Taking Deposition. (Darroll Decl. ¶ 5; Exh. C.) Defendants contend that Plaintiff also stated that she had never seen the Amended Notice of Deposition before. (Darroll Decl. ¶ 5; Exh. C.) Defendants argue that as shown in the accompanying Separate Statement, each category of documents requested relates directly to the allegations in Plaintiff’s complaint. Defendants assert that the Court should order Plaintiff to produce all responsive documents without objection and to appear for another session of her deposition so Defendants’ counsel can question her on those documents and on all related matters.

Adequate Notice

California Rules of Court Rule 5.94(a) provides that “[t]he court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005.”

In reply, Defendants argue that Plaintiff’s failure to file any opposition to the ex parte application is a consent to the ruling. Defendants assert that Plaintiff appeared at the ex parte hearing on the request to set the hearing date on October 25, 2019. Defendants contend that Plaintiff failed to file any opposition to that motion and therefore consented to the briefing schedule, waiving any right to complain.

Timeliness of Deposition, Timeliness of Motion, and Mootness

Code of Civil Procedure section 2025.270 provides in relevant part:

(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.

(b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, an oral deposition shall be scheduled for a date at least five days after service of the deposition notice, but not later than five days before trial.

(c) Notwithstanding subdivisions (a) and (b), if, as defined in Section 1985.3 or 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after issuance of that subpoena.

(Code Civ. Proc., § 2025.270(a)-(c).) Further, Section 2025.410 provides:

Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(Code Civ. Proc., § 2025.410(a).)

Plaintiff next argues that Defendants’ motion should be denied because Defendants’ Requests for Production of Documents served in conjunction with the Notice of Deposition were untimely and Plaintiff was not required to respond. Plaintiff asserts that pursuant to Section 2025.270(c), Defendants’ deposition notice in which documents were requested was required to be set at least twenty days after the issuance of the notice. Plaintiff contends that Defendants noticed the deposition by mail on July 22, 2019, and the deposition took place on August 8, 2019. Plaintiff argues that Defendants failed to properly notice the deposition with requests for production as only seventeen days elapsed from the date the notice was sent.

Plaintiff further asserts that Defendants’ motion to compel deadline has long passed, which is a jurisdictional bar to this motion. Plaintiff contends that a motion to compel must be brought within forty-five days of receipt pursuant to Section 2030.300(c). Plaintiff argues that here, Defendants previously propounded substantively the same discovery requests to which Plaintiff responded more than forty-five days ago. Plaintiff asserts that Defendants neither met and conferred regarding those responses, nor moved to compel further responses. Plaintiff contends that now, Defendants seek to compel production of duplicative discovery requests to which Plaintiff has already provided responses. Plaintiff argues that consequently, Defendants’ motion should be denied as the court has no authority to hear Defendants time-barred motion. 

Plaintiff also asserts that the Court should deny Defendants’ motion under Section 2025.450(f), which requires the Court to limit additional discovery of the same matter. Plaintiff contends that any single condition set forth in Section 2025.450(f) is sufficient to require the Court to limit further discovery. Plaintiff argues that first, there are less burdensome and expensive methods of obtaining this information than an additional deposition, such as a request to supplement. Second, each deposition request is duplicative or cumulative of previous requests for production. Third, the Defendants had ample opportunity to obtain information sought through a motion to compel. And fourth, the benefit of compelling production is nonexistent as Plaintiff has already responded and is producing responsive documents.

Plaintiff also asserts that Defendants’ motion is moot because documents were already produced prior to the ex parte application being filed.

In reply, Defendants argue that Section 2025.270(c) has no application here as that section requires 20 days’ notice if the noticing party serves a subpoena to a third party and requests personal records of a consumer or employee. Defendants assert that here, Plaintiff’s deposition was noticed and she was required to produce documents in her possession, custody, or control. Defendants contend that they complied with the 10-day notice required by Section 2025.270(a).

Defendants further argue that they are not barred from requesting documents at Plaintiff’s deposition simply because those documents were requested a year prior in a request for production under Section 2031.010. Defendants assert that Sections 2031.010 and 2025.220(4) are separate methods for obtaining documents from a party. 

As to Plaintiff’s other objections, Defendants contend that pursuant to Section 2025.410(a), any party objecting to any defect in a deposition notice must serve written objections three calendar days prior to the deposition date or those objections are waived.

Defendants further argue that the instant motion is not moot, as Plaintiff has not produced documents related to treatment records from Wendy Ashley, which relates to Plaintiff’s emotional distress.

The Court finds that Defendants’ Deposition Notice and concurrent Request for Production of Documents was timely. As noted by Defendants, Section 2025.270(c) relates to third party deponents that are required to be subpoenaed. The relevant Code section here is 2025.270(a), which only requires that a deposition be noticed at least 10 days before the scheduled deposition. Here, Defendants’ Deposition Notice and Request for Production of Documents was served on July 22, 2019 and the deposition took place on August 8, 2019, 17 days later. Accordingly, Defendants Deposition Notice and Request for Production of Documents was timely.

The Court further finds that Plaintiff’s motion is timely. Section 2025.450, the Code section under which this motion is brought, does not have a deadline by which Defendants must file their motion.

As to Plaintiff’s arguments under Section 2025.450(f), the Court finds that Plaintiff has not adequately demonstrated that it is possible to obtain the information from another source that is more convenient, less burdensome, or less expensive; that the discovery sought is unreasonably cumulative or duplicative; that the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; and the likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues. 

Finally, the Court finds that the instant motion is not moot and thus proceeds with its analysis.

Good Cause, Notice of Second Deposition, & Meet and Confer Requirement

Plaintiff argues that Defendants’ moving papers fail to set forth specific facts justifying good cause for the production of documents. Plaintiff asserts that Defendants’ motion, declaration, and separate statement are devoid of any facts justifying the production of documents. Plaintiff contends that Defendants fail to present any factual evidence by way of declaration.

Plaintiff also argues that she cannot be compelled to attend a second deposition because Plaintiff never failed to appear at a deposition. Plaintiff asserts that the only noticed deposition of Plaintiff took place on August 8, 2019. Plaintiff further contends that Defendants have completely failed to meet and confer regarding a second deposition.

In reply, Defendants argue that as shown in the Separate Statement, all of the requests quote from or directly relate to Plaintiff’s allegations in her complaint. Accordingly, the Separate Statement adequately shows good cause for the production of documents. As to the second deposition, Defendants assert that Defendants’ counsel advised Plaintiff at her deposition on August 8, 2019 that a second session would be necessary because of her failure to produce the documents. Defendants contend that Plaintiff’s counsel’s statements that Defendants’ counsel did not seek to “meet and confer” on a second deposition is false.

The Court finds that Defendants’ Separate Statement sets forth facts showing good cause justifying the demand for any documents. As noted by Defendants, each request is directly tied to an allegation in Plaintiff’s complaint. As to a notice of the second deposition, pursuant to Section 2025.450, Defendants’ noticing of the deposition on August 8, 2019 and Plaintiff’s failure to produce documents at the deposition are sufficient to compel Plaintiff’s attendance and testimony, and the production of any document described in the deposition notice. Finally, the Court finds that there has been an adequate meet and confer. 

Based on the foregoing, Defendants' motion to compel Plaintiff to produce documents and appear for a further deposition is GRANTED.

Sanctions

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)

Defendants seek sanctions against Plaintiff and her counsel of record, Edwin Pairavi, Joshua Mohrsaz, and Pairavi Law P.C. in the amount of $9,370.00. Defendants argue that the amount consists of 9.9 hours drafting the moving papers, an anticipated 3 hours drafting a reply to any opposition, and 3 hours appearing at the hearing billed at a rate of $300 per hour. Defendants assert that the second session of Plaintiff’s deposition will cost approximately $2,500.00 for the Court Reporter and an additional $2,100.00 for counsel’s time.

The Court finds that the amount of sanctions requested is unreasonable. Defendants are only entitled to recover for the reasonable time spent preparing the instant motion. Accordingly, the Court awards reduced sanctions in the amount of $1,500.00 for 3 hours spent preparing the moving papers, 1 hour spent preparing the reply, and 1 hour spent attending the hearing billed at a rate of $300 an hour.

Conclusion

Defendants’ motion to compel Plaintiff to produce documents and appear for a further deposition is GRANTED. Plaintiff and her counsel of record are ordered to pay sanctions in the amount of $1,500.00 to Defendants within thirty (30) days. Plaintiff must appear for the second deposition within 20 days, or on such other date to which the parties may agree.