Judge: Anne Hwang, Case: 22STCV19315, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV19315    Hearing Date: October 6, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On June 14, 2022, Plaintiff Rima Grigoryan (Plaintiff) filed this action against Defendants Ralphs Grocery Company (Ralphs), Kroger, and Does 1 to 50 for premises liability after an alleged slip and fall.

On April 27, 2023, Plaintiff propounded requests for documents, special and form interrogatories, and requested for admissions on Ralphs. Ralphs served its responses on June 1, 2023. Plaintiff contends the responses are deficient because they are not verified, evasive, and incomplete. Ralphs opposes.

Plaintiff has not filed any reply brief nor updated the motions since the Informal Discovery Conference (“IDC”). Accordingly, it is not clear what issues remain. For instance, the parties have not clarified whether verified responses have now been received.

ANALYSIS

Compel Further Requests for Production

Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if: 

(1) A statement of compliance with the demand is incomplete. 

(2) A representation of inability to comply is inadequate, incomplete, or evasive. 

(3) An objection in the response is without merit or too general.  

Code of Civil Procedure section 2031.320(a) provides that “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”  (Code Civ. Proc., § 2031.310(c).)   

            Here, Plaintiff appears to seek the following: a verified response to Request for Production Number 3, the surveillance video from two hours before and after the incident rather than one hour before and five minutes after the incident as agreed by Defendant, and production of the video itself.

            As an initial matter, the Court agrees with Defendant that Plaintiff did not raise the issue of the length of time of the video at the IDC, and therefore this request is procedurally defective. However, the Court grants Plaintiff’s motion for a verified response and for production of the video as agreed upon by Defendant (one hour before and five minutes after the incident), even if it results in production of the video prior to the deposition of Plaintiff.

            Defendant cites to Appendix 3.A of the Los Angeles Superior Court Local Rules, which discusses the priority of depositions, and the delay of depositions. Defendant further argues that Ralphs noticed Plaintiff’s deposition in advance of Plaintiff serving written discovery and cites to Poeschl v. Superior Court of Ventura County (1994) 229 Cal.App.2d 383, 386. Here, however, the issue is not the priority of depositions, but the production of certain evidence before a deposition is taken. In Rosemont v. Superior Court of Los Angeles (1964) 60 Cal.2d 709, 714 the Court noted that “[s]ince discovery proceedings can seldom if ever be conducted simultaneously, it is inherent in such proceedings that the party who secures discovery first may derive advantages by securing information from his adversary before he is required to reciprocate by divulging information to him.” However, the Court found that “plaintiff is not seeking merely the advantages that would flow from the normal timing of discovery. He is seeking the advantages that would flow from his being able to refresh his recollection from the recordings before giving his deposition while denying to Turner and the other parties to those conversations equal opportunity to refresh their recollections before giving their depositions.” (Id. at 714-15.) The Court affirmed the trial court’s order of production prior to deposition. In Poeschl, cited by Defendant, the Court of Appeal issued a writ of mandate directing the trial court to order that plaintiff produce recordings of conversations between plaintiff and defendant before taking the deposition of the defendant. There, the defendant’s deposition was noticed first. Defendant filed a motion for an order that the plaintiff produce all recordings of conversations between them, arguing that he should be entitled to refresh his recollection prior to taking his deposition. (Poeschl, 229 Cal.App.2d at 384.) The trial court denied the motion on the ground that the parties stipulated that his deposition proceed first. The Court of Appeal reversed, concluding there was “no justification for allowing the real party in interest to proceed with petitioner’s deposition before the production of recordings of his conversations or statements.” (Id. at 387.)

            Defendant’s only apparent objection to actually producing the surveillance video it agreed to produce is that Defendant should be permitted to depose Plaintiff first. The authorities cited by Defendant do not support its position, as discussed above. Defendant’s objection is therefore overruled and the Court grants Plaintiff’s motion to compel production of the video.

            Regarding the remaining motions to compel, the Court agrees with Defendant that none of the other issues were raised at the IDC, and therefore the motions are procedurally defective. (See Eighth Amended Standing Order for Procedures in the Personal Injury Hub Section 9E.)

Sanctions

Both parties request monetary sanctions. The Court finds that Defendant acted with substantial justification. Moreover, Plaintiff has not properly presented their motion by neither filing a reply nor updating the motion since the IDC. However, because the motion is currently pending, the Court cannot disregard it. Although there does not appear to be a statutory basis to impose monetary sanctions on Plaintiff, the Court strongly admonishes Plaintiff to properly present Plaintiff’s motions going forward, rather than delay a deposition and fail to present argument or legal authorities for the actual legal issue it is seeking the Court to address.

CONCLUSION AND ORDER

            The Court grants Plaintiff’s motion to compel production of the surveillance video agreed upon by Defendant and a verified response to Request for Production of Documents, Set One, Number 3. The video and response shall be served on Plaintiff within 15 days.

            Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.