Judge: Anne Hwang, Case: 22STCV24609, Date: 2024-05-22 Tentative Ruling

Case Number: 22STCV24609    Hearing Date: May 22, 2024    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  

Plaintiff Carlos Vitro (“Plaintiff”) now moves to compel Defendant Ralphs Grocery Company’s (“Defendant”) deposition of its Person Most Knowledgeable (“PMK”) and request for production. Plaintiff also seeks monetary sanctions. Defendant opposes. No reply has been filed.

On May 10, 2024, the Court granted Plaintiff’s ex parte application and continued trial from May 29, 2024 to August 1, 2024. All discovery and pre-trial motion cut off dates are associated with the previous trial date. (Min. Order, 5/10/24.)

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 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 Civ. Proc., § 2025.280, subd. (a).)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc. § 2025.230.)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection under Section 2025.410, 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 Civ. Proc., § 2025.450, subd. (a).) If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).

MEET AND CONFER

The Declaration of H. Dean Aynechi, Plaintiff’s counsel, describes a meet and confer effort that took place to determine if Defendant would provide a PMK for all topics in the notice. (Aynechi Decl. ¶¶ 15– 28.)

DISCUSSION

This case arises out of an alleged slip and fall at a grocery store. On January 8, 2024, Plaintiff served the fourth amended (most recent) deposition notice for Defendant’s PMK, set for January 25, 2024. (Aynechi Decl. ¶ 16, Exh. 6.) The notice set forth 14 topics for deposition. On January 18, 2024, Defendant served an objection to the notice. (Id. ¶ 26, Exh. 7.) Plaintiff contends that Defendant refuses to produce a PMK for three topics.

Plaintiff now moves to compel Defendant to produce PMKs for all 14 topics, arguing the objections to the three topics lack merit.

In opposition, Defendant concedes it agreed to produce PMKs for 11 of the 14 topics. (Opp., 2.) The topics at issue are: #6 employees that warned Plaintiff prior to the incident; #7 employees who witnessed the incident; and #13 any and all prior complaints similar to this incident during the 2-years preceding this incident. As to topic #6, Defendant states it cannot produce a PMK because it asserts that no warning was given. As to topic #7, Defendant asserts no employee witnessed the incident. And regarding topic #13, Defendant asserts there were no similar incidents in the past two years. (Opp., 3.)

However, the discovery motion cut-off in this case is closed. Any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30^th day, and to have motions concerning discovery heard before the 15^th day, before the date initially set for the trial of the action. (Code Civ. Proc.§ 2024.020 (a).)¿A trial court abuses its discretion in hearing a discovery motion past the deadlines in Code of Civil Procedure section 2024.020 when it does not require the party to file a motion for leave to reopen discovery under section 2024.050. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568, 1588.)¿¿

            Here, the discovery cut-offs are associated with the previous trial date of May 29, 2024. (Min. Order, 5/10/24.) Therefore, the last day to hear a discovery hearing was May 14, 2024. Since this motion to compel a deposition is being heard on May 22, 2024, it is untimely. Plaintiff has not moved to reopen discovery in this motion and has not discussed section 2024.050. Therefore, the motion to compel is denied.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to Compel the Deposition of Defendant’s Person Most Knowledgeable and Production of Documents is DENIED.

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