Judge: Daniel M. Crowley, Case: 20STCV01993, Date: 2022-09-20 Tentative Ruling
Case Number: 20STCV01993 Hearing Date: September 20, 2022 Dept: 28
Plaintiff Adele Piro’s Motion to Compel Deposition of Defendant’s Agent Elizabeth Soukup; Plaintiff Adele Piro’s Motion to Compel Responses to Request for Production of Documents
Having considered the moving, opposing and replying papers, the Court rules as follows.
BACKGROUND
On January 16, 2020, Plaintiff Adele Piro (“Plaintiff”) filed this action against Defendants Home Depot U.S.A., Inc. (“Home Depot”) and Daniel Nerio (“Nerio”) for premises liability.
On December 15, 2020, Home Depot filed an answer. On February 16, 2022, Nerio filed an answer.
On June 14, 2022, Plaintiff filed a Motion to Compel Responses to Plaintiff’s Request for Production of Documents to be heard on July 11, 2022. The Court continued the hearing on the motion to September 20, 2022. On June 27, 2022, Home Depot filed an opposition. On July 5, 2022, Plaintiff filed a reply.
On June 14, 2022, Plaintiff filed a Motion to Compel Deposition of Elizabeth Soukup and Production of Documents to be heard on July 11, 2022. The Court continued the hearing on the motion to September 20, 2022. On June 28, 2022, Home Depot filed an opposition. On July 5, 2022, Plaintiff filed a reply.
Trial is currently scheduled for January 9, 2023.
PARTY’S REQUESTS
Plaintiff requests the Court compel Home Depot’s employee/agent Elizabeth Soukup (“Deponent”) to appear for deposition and produce discovery documents demanded in Plaintiff’s Notice of Deposition within 10 days of the hearing on this motion. Plaintiff also requests sanctions totaling $7,200.00.
Home Depot requests the Court deny the motion for the deposition and grant sanctions totaling $1,250.00.
Plaintiff requests the Court order Home Depot serve verified responses to Plaintiff’s Request for Production of Documents, Set One, Nos. 3, 4, 6, 7, 8, 13, 17 and 19. Plaintiff also requests the Court impose $7,200.00 in sanctions.
Home Depot requests the Court deny the motion and impose sanctions totaling $1,250.00.
LEGAL STANDARD
Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents.
“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.” A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”
CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.
Under California Code of Civil Procedure § 2031.300, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (b) The party making the demand may move for an order compelling response to the demand.” According to CCP § 2030.260, for a response to interrogatories to be timely, it must be served within 30 days of service. CCP § 2031.260 provides the same 30-day deadline for request for production responses.
California Code of Civil Procedure § 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to CCP §2023.010(d), misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”
DISCUSSION
Deposition
Deponent verified Home Depot’s written responses to discovery; on October 5, 2021, Plaintiff noticed Deponent’s deposition and request for production for November 4, 2021. Defendant objected to the deposition and failed to provide additional dates.
Home Depot argues that Deponent was not identified as a witness and executed discovery verifications as a specialist in Home Depot’s legal department located in Georgia as authorized by Home Depot. Home Depot objected as she has no first-hand knowledge and all of the information she has related to the incident is privileged attorney-client communications and work product. The Court finds that Home Depot’s objections are without merit. Home Depot waived these privileges by having someone from its legal department verify its discovery responses. (Code of Civ. Proc., § 2030.250(b).) “As a general matter, when an individual verifies discovery responses, further discovery can be directed to that individual to determine the sources for the initial responses.” (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1352.) Nonetheless, the Court questions why Plaintiff feels compelled to depose Ms. Soukup. Indeed, as Melendrez instructs, “The [discovery] statutes do not provide for or permit lengthy further discovery from a verifying attorney. Indeed, there is no indication that a deposition of the verifying attorney would ever be necessary in any particular case.” (Id.) As instructed in Melendrez, Plaintiff may propound additional written discovery on the issues of Ms. Soukup’s sources for the information contained in the discovery responses she verified. (Melendrez v. Superior Court, supra, 215 Cal.App.4th 1343, 1352, fn. 12.)
Request for Production
On April 1, 2021, Home Depot responded to the identified Request for Production with “Upon the execution of and court’s grant of the proposed protective order served concurrently herewith, the production, inspection, and related activity demanded will be allowed.” However, there is no protective order on file with the Court, indicating that Home Depot never filed such a protective order.
Home Depot contends that this is a Motion to Compel Further Responses labeled as a Motion to Compel Responses to skirt the 45-day deadline of a Motion to Compel Further Responses. The Court is inclined to agree; Home Depot provided responses to discovery. Should Plaintiff been dissatisfied with the objections or responses provided, Plaintiff needed to file a motion to compel further responses.
Plaintiff’s motion to compel responses to her Requests to Produce is denied. Defendant’s request for sanctions is granted. Plaintiff’s counsel is ordered to pay $500 ($250 x 2 hrs.) to Defendant by October 19, 2022.
CONCLUSION
Plaintiff Adele Piro’s Motion to Compel Deposition of Defendant’s Agent Elizabeth Soukup is DENIED.
Plaintiff Adele Piro’s Motion to Compel Responses to Request for Production of Documents is DENIED.
Plaintiff Adele Piro’s Request for Sanctions is DENIED.
Defendant Home Depot’s 2 Requests for Sanctions are GRANTED. Plaintiff’s counsel is ordered to pay $1,000.00 in sanctions to Home Depot by October 19, 2022.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.