Motion to Compel Deposition
Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 07/22/2026 - 10:00 Nature of Proceedings Motion to Compel Deposition Tentative Ruling For Plaintiffs Oscar Chavez and Pablo Pizano: Sarkis Sirmabekian, Kris Demirjian For Defendants Ampersand Publishing, LLC, Christopher Frost, Zachary T. Elsea
For the reasons stated herein, the motion of Plaintiff Oscar Chavez to compel the deposition of Defendant Wendy P. McCaw is continued to January 13, 2027. On or before December 30, 2026, Plaintiff and Defendant shall file a joint status report, or if necessary file and serve individual status reports, setting forth the matters described herein. Plaintiff shall serve, and file proof of service of, notice of the Court's ruling herein.
Background
The first amended complaint (FAC) filed on September 28, 2020, by Plaintiffs Oscar Chavez (Chavez) and Pablo Pizano (Pizano) (collectively, Plaintiffs) against Defendants Ampersand Publishing, LLC (Ampersand), Yolanda Apodaca, and Jay Konheim (collectively, Defendants) is the operative pleading.
As alleged in the FAC: Plaintiffs are or were employed by Ampersand as hourly-paid, non-exempt employees to perform home delivery of periodicals. (FAC, P.P. 23-27.) Chavez has been employed by Defendants since April 2011. (Id. at P.P. 25, 26.) Pizano was employed by Defendants for 6 or 7 years until January 5, 2020. (Id. at P. 27.) While Plaintiffs were employed with Ampersand, Defendants failed to pay Plaintiffs for all hours worked, to provide meal and rest periods, to pay all wages including overtime and minimum wages, to pay meal and rest period premiums, and to keep and provide accurate and complete itemized records of Plaintiffs' hours and compensation. (Id. at P.P. 38, 41, 44, 48, 49, 66, 73, 75, 86, 93, 99, 107, 108, 109, 118, & 120.)
The FAC asserts nine causes of action: (1) failure to pay minimum wage; (2) failure to compensate for all hours worked; (3) failure to pay overtime compensation; (4) failure to pay meal period compensation; (5) failure to pay rest period compensation; (6) failure to furnish accurate wage and hour statements; (7) failure indemnify and illegal deductions from wages; (8) violation of Labor Code section 2698 et seq. (the Private Attorneys General Act of 2004 or PAGA) (against Ampersand only); and (9) unfair competition.
On October 31, 2022, Plaintiffs filed an amendment to the FAC substituting Defendant Wendy P. McCaw (McCaw) as Doe 1. Court records further reflect that all other named Defendants have filed answers to the FAC, generally denying its allegations and asserting affirmative defenses.
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On June 23, 2023, Chavez filed a motion for an order compelling McCaw to appear for a deposition (the Motion to Compel), which was calendared for hearing on August 16, 2023.
On July 28, 2023, counsel for bankruptcy debtor Ampersand filed in this case a notice of an automatic stay as to all parties to this action. Attached to that notice is a copy of a notice of the filing of a petition by Ampersand for relief under Title 11 United States Code section 701 et seq. (the Ampersand bankruptcy matter).
On August 3, 2023, McCaw filed an opposition to the Motion to Compel.
On August 16, the Court entered a minute order (the August 16 Order) adopting its tentative ruling on the Motion to Compel as follows: "The trial date in this case is 2/7/24. On 6/23/23 a motion to compel a deposition was filed by Plaintiffs which is set for hearing on 8/16/23. The motion seeks to compel Defendant Wendy P. McCaw (McCaw) to appear for a deposition and seeks monetary sanctions against McCaw and her counsel of record. McCaw is identified in the motion as the Chief Executive Officer of Defendant Ampersand Publishing, LLC (Ampersand).
In the motion, Plaintiffs contend that McCaw has relevant information pertaining to Plaintiff's Labor Code dispute and the alleged Labor Code violations at issue in this case. Plaintiffs allege they were employed by Ampersand and McCaw. On 7/28/23, counsel for bankruptcy debtor Ampersand filed a notice of automatic stay (the notice), stating that Ampersand filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code on July 21, 2023 (the Ampersand bankruptcy matter). The notice states that pursuant to Bankruptcy Code section 362, there is an automatic stay against the continuation of any judicial action against Ampersand including actions to recover a claim against Ampersand that arose before commencement of the Ampersand bankruptcy matter.
On 8/3 an Opposition to the Motion to Compel was filed that reports the parties met and conferred regarding mutual availability and the deposition was and is set for September 29, 2023. Plaintiffs' Motion should never have been filed, and it is obviously now moot. Plaintiffs' counsel nonetheless refused to take the motion of calendar, because he apparently and unjustifiably seeks sanctions, notwithstanding the fact that McCaw's counsel cautioned him. The motion should be denied in its entirety as moot.
In addition, by filing a motion to compel a deposition after McCaw provided availability dates, and by refusing to withdraw the motion even after the deposition was successfully scheduled, Plaintiffs' counsel has engaged in an abuse of the discovery process, acted without substantial justification, and engaged in bad faith bully tactics. Plaintiffs and their counsel should therefore be sanctioned in the amount of $3,975. The Court's Conclusions The filing of the Ampersand bankruptcy matter operates as a stay of the present action.
The Court may not proceed with Plaintiff's motion to compel. The Court should continue the matter and order the parties to provide a status update at the continued hearing. Sanctions should not be awarded."
Pursuant to the August 16 Order, the Court vacated the trial date of February 7, 2024, continued the Motion to Compel to March 20, 2024, and ordered the parties to provide a status update prior to that continued hearing.
Court records reflect that no party filed a status update with the Court prior to the March 20, 2024, continued hearing on the Motion to Compel.
On March 20, 2024, the Court entered a minute order adopting its tentative ruling on the Motion to Compel as follows: "On August 16, 2023, the Court determined that a bankruptcy filing stayed the action. The Court continued this motion to this hearing date including the order that: "The parties shall provide a status update prior to the continued hearing." Nothing has been filed to provide a status update. There is no reason to believe that the bankruptcy stay has been lifted. (See Cal. Rules of Court, rule 3.650(d) ["When a stay is vacated, is no longer in effect, or is modified, the party who filed the notice of the stay must immediately serve and file a notice of termination or modification of stay.
If that party fails to do so, any other party in the action who has knowledge of the termination or modification of the stay must serve and file a notice of termination or modification of stay."].) The Court will continue the hearing on the motion, sua sponte, to September 18, 2024 at 10 am; the stay remains in effect; the Court orders a status update to be filed by September 10, 2024."
On September 10, 2024, Chavez filed a status update stating that the Ampersand bankruptcy matter is still pending. (Sept. 10, 2024, Status Update at p. 1, ll. 21-23.)
On September 18, the Court entered a minute order noting that the bankruptcy stay is still in effect, and continuing the Motion to Compel to July 30, 2025.
On July 25, 2025, Chavez filed a status update re bankruptcy, stating that the Ampersand bankruptcy matter is still pending.
On July 30, the Court entered a minute order adopting its tentative ruling on the Motion to Compel as follows: "This Motion was continued from 9/18/2024. It is a motion to compel a deposition filed June 23, 2023. On July 28, 2023, a notice of bankruptcy stay was filed with the Court. The motion was continued from its original hearing date to August 16, 2023, then to March 20, 2024, then to September 18, 2024, then to this date. Nothing has since been filed; it therefore appears that the bankruptcy stay remains in effect. The matter will be continued to July 22, 2026, at 10 am. It may be put back on the active calendar at any time before then if a request is made."
As of this writing, no party has filed a status report regarding whether the Ampersand bankruptcy matter is still pending, whether the bankruptcy stay is still in effect. In addition, the Court has not record showing that any party filed a request to place this case back on the active calendar.
Analysis
Absent information or evidence showing that the Ampersand bankruptcy matter has been resolved or the automatic stay has been lifted, or a request by any party to place this case back on the active calendar, the Court will continue the Motion to Compel to January 13, 2027.
Further, the Court will require Chavez and McCaw to file and serve a joint status report, or if necessary, file and serve individual status reports, regarding the status of the Ampersand bankruptcy matter and the automatic stay; whether the disputes at issue in the Motion to Compel have been resolved; and whether the Motion to Compel may be taken off-calendar.
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