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Van v. Language Line Services, Inc.

California Court of Appeals, Sixth District

January 24, 2017

NATHALIE THUY VAN, Plaintiff and Appellant,
LANGUAGE LINE SERVICES, INC., Defendant and Respondent.

          Certified for publication 2/1/17 (order attached)

         Santa Clara County Superior Court No. 1-13-CV244291 The Honorable Beth A.R. McGowan, Trial Judge

          Attorneys for Plaintiff and Appellant Nathalie Thuy Van: Nathalie Thuy Van, in pro per

          Attorneys for Defendant and Respondent Language Line Services, Inc.: Jackson Lewis P.C. Heath A. Havey Joel P. Kelly Johnson Schachter & Lewis Sander J. van der Heide

          RUSHING, P.J.


         In this employment case, plaintiff and appellant Nathalie Thuy Van (Van) challenges a trial court's order sanctioning her and finding her in contempt. The trial court found that Van had disobeyed a prior court order by refusing to attend a deposition noticed by defendant and respondent Language Line, Inc. (Language Line) and had engaged in other discovery violations relating to her deposition. However, the prior court order Van was found to have disobeyed did not order her to attend a deposition and it was not issued as a result of a motion to compel. It was instead only a denialof Van's own ex parte application to have her deposition stayed. Language Line did file a motion to compel Van's attendance (and Van filed a motion to quash the deposition notice) but these were never ruled upon before the case was dismissed. There was, therefore, no prior court order which Van disobeyed and no determination as to whether Van had a substantial justification for not attending her deposition or whether she had a valid objection to the various deposition notices served by Language Line (such as Van's claim that the location was more than 80 miles from her home.)[1]

         Van asks that we reverse the order finding her in contempt and sanctioning her. As explained below, we will exercise our discretion to treat Van's appeal as a writ of prohibition insofar as the trial court found her in contempt and we will annul that finding. We will also reverse and remand for recalculation the trial court's order sanctioning Van in the amount of $7, 713.

         Factual And Procedural Background

         This discovery dispute arose from a lawsuit filed by Van against her employer, Language Line, in which she alleged several wrongful employment practices, including discrimination because of her Vietnamese background, harassment based on her race, and a variety of wage and labor law violations. Although both parties raise a host of arguments relating to the complicated procedural background of this case, we recount here only those that are relevant to our analysis.

         Starting in May 2014, [2] Language Line began trying to take Van's deposition. The first deposition notice, served on May 21, called for Van to appear on June 12 and June 13 at Language Line's offices in Monterey. A few days later, on May 27, Van objected, stating, among other things, that the location set for the deposition was more than 75 miles from her residence in Milpitas (in violation of Code of Civil Procedure section 2025.250, subdivision (a)[3]), that Language Line had not yet produced certain documents in response to her discovery requests, and that the deposition notice was “oppressing” her. Van also notified Language Line that she would be filing an ex parte application on May 29, requesting a stay of her deposition until a pending motion she had already filed to compel Language Line to produce documents could be heard.

         After some discussions between the parties which did not resolve matters, Language Line served an amended deposition notice, changing the dates of Van's deposition to begin on June 19.[4] Van responded by essentially repeating, in writing, her previous objections, but this time noting that she would file an ex parte application on June 3 asking for an order compelling mediation and (again) staying her deposition pending her motion to compel the production of Language Line's documents.

         Van filed her ex parte application on June 3. The trial court denied it in an order signed and filed the same date. The text of the order reads as follows: “Having reviewed PLAINTIFF's ex parte application for an order to mediate and for an order to stay Deposition of Plaintiff Nathalie Thuy Van, and good cause appearing, [¶] IT IS HEREBY ORDERED that the parties: [¶] DENIED. [¶] IT IS SO ORDERED.” (The disjointed language, which we point out with no intended criticism, is explained by the fact that the trial court simply crossed out Van's proposed order granting her ex parte application and wrote “DENIED” across it.)[5]

         On two more occasions, Van objected to the pending deposition, still scheduled to begin on June 19. On that date, counsel for Language Line appeared for the deposition at the location in Monterey but Van did not attend.[6] More deposition notices were sent and each was met with essentially the same objections. The last notice, served on July 25, requested that Van appear on August 28 and 29 at the same location as noticed before in Monterey.

         On July 28, 2014, Language Line filed the motion that gave rise to the order we are called upon to review. It was titled a motion for “OSC Re: Contempt of Court, Monetary Sanctions, And For Terminating Sanctions Or, In The Alternative, To Compel Plaintiff's Appearance.” Language Line argued that Van's failure to appear for her deposition on June 19 was in defiance of the court's June 3 order denying Van's ex parte motion to stay. Language Line sought fees and costs associated with its counsel's appearance in Monterey on June 19 and terminating and monetary sanctions for what it argued were Van's defiance of the June 3 order. As an alternative to the terminating sanctions, Language Line sought an order compelling Van's appearance at deposition on August 28 and 29. Language Line also sought sanctions in the form of attorney fees for preparation of its motion.

         On July 29, one day after Language Line filed its motion, Van filed a “motion to quash” Language Line's latest deposition notice, arguing, among other things, that the noticed location for the deposition was more than 75 miles from her residence and that the taking of the deposition was unfair in light of what Van viewed as Language Line's delays in producing documents. Van also filed an opposition to Language Line's sanctions motion on August 8.

         Language Line's motion was heard on August 21.[7] The written order was signed on September 2 and filed on September 5.[8] In general, it consists of three main parts. First, the court sanctioned Van $1, 050 (as attorney fees to Language Line) for her unsuccessful ex ...

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