Judge: Daniel M. Crowley, Case: 21STCV13441, Date: 2022-08-24 Tentative Ruling

Case Number: 21STCV13441    Hearing Date: August 24, 2022    Dept: 28

Plaintiff Colleen Murphy’s Motion to Compel Deposition of Defendants Sweetgreen, LA LLC and Sweetgreen Inc.’s Person Most Qualified.

Having considered the moving, opposition and reply papers, the Court rules as follows.

BACKGROUND

On April 8, 2021, Plaintiff Colleen Murphy (“Plaintiff”) filed this action against Defendants Sweetgreen, Inc. (“Sweetgreen”) and Third Base Group, LLC (“TBG”) for negligence and premises liability. Plaintiff later amended the complaint to include Defendant Continental Management Group, LLC (“CMG”) and Sweetgreen LA, LLC (“Sweetgreen LA”).

On June 4, 2021, Sweetgreen field an answer and a Cross-Complaint against Cross-Defendant TBG for implied indemnity, express indemnity, contribution and declaratory relief. On August 5, 2021, TBG filed an answer.

On June 30, 2021, TBG filed an answer. On November 19, 2021, CMG filed an answer.

On November 4, 2021, Sweetgreen LA filed an answer and a Cross-Complaint against Cross-Defendants TBG and CMG for implied indemnity, express indemnity, contribution and declaratory relief. On February 18, 2022, TBG and CMG filed an answer.

On August 8, 2022, Plaintiff filed a Motion to Compel Deposition of Sweetgreen and Sweetgreen LA’s PMQ to be heard on August 24, 2022. On August 11, 2022, Sweetgreen LA and Sweetgreen (“Opposing Defendants”) filed oppositions. On August 16, 2022, Plaintiff filed a reply.

Trial is currently scheduled for October 6, 2022.

PARTY’S REQUESTS

Plaintiff requests the Court order Sweetgreen and Sweetgreen LA’s PMQ to appear for a deposition and produce documents specified in the First Amended Notice of Deposition within 10 days of the hearing on the motion. Plaintiff also requests the Court order sanctions totaling $1,985.00.

Opposing Defendants request the Court deny the motion and the request for sanctions.

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. 

DISCUSSION

On December 22, 2021, Plaintiff served a deposition notice for February 4, 2022. Opposing Defendants served objections in late January. Plaintiff followed up, requesting dates for the deposition—on February 9, 2022, Opposing Defendants told Plaintiff to serve the deposition for May 24, 2022. In response, on February 11, 2022, Plaintiff served a deposition notice for May 24, 2022.  On May 18, 2022, Opposing Defendants' counsel informed Plaintiff that counsel had a court appearance that day and that the deposition needed to be rescheduled. Plaintiff offered to work around the Court appearance, to which counsel stated they would confirm. On May 20, 2022, Opposing Defendants served objections and promised to provide new dates. Opposing Defendants have yet to provide alternative dates.

Opposing Defendants argue that Plaintiff’s motion is untimely; while the Court notes that this accurate, trial is fast approaching and thus will review the motion on the merits.

Sweetgreen LA states that on July 7, 2022, Sweetgreen LA informed Plaintiff that it had no employees who would be knowledgeable as to the information/categories outlined in the deposition notice. Plaintiff’s counsel still asked for availability, which Sweetgreen LA did not provide.

Sweetgreen provided all applicable witnesses and the deposition of said witnesses was completed on July 13, 2022. As such, the Court will deny the motion as to Sweetgreen.

Opposing Defendants argue that they informed Plaintiff they would be unable to make the deposition on May 10, 2022 and offered to provide additional dates. In addition, Sweetgreen and Sweetgreen LA’s counsel was unable to make the deposition for May 10, 2022. They noted that the notice, served December 30, 2021, was served the day the previous attorney left the firm.

The Court grants the motion. Once a party has properly noticed a deposition, it is the burden of the deponent to make herself available, if not on the date noticed, then on another date convenient to the noticing party and its counsel. Sweetgreen LA has failed to meet that burden. The Court finds sanctions are appropriate, and issues sanctions in the amount of $810.00, based on 3 hours of attorney’s work and one $60.00 filling fee.

CONCLUSION

Plaintiff Colleen Murphy’s Motion to Compel Deposition of Defendants Sweetgreen, LA LLC’s Person Most Qualified is GRANTED. Sweetgreen LA is ordered to produce the deponent for deposition within 10 days of the hearing on this motion.

Plaintiff Colleen Murphy’s Request for Sanctions is GRANTED. Sweetgreen LA and counsel are ordered to pay Plaintiff $810.00 in sanctions within 30 days of the hearing on this motion.

Plaintiff Colleen Murphy’s Motion to Compel Deposition of Defendant Sweetgreen Inc.’s Person Most Qualified is DENIED. The Request for Sanctions is DENIED.

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.