Judge Jill Feeney, Case 19STCV24798 2023-03-03 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for premises liability arising from a slip and fall incident which took place in July 2017. Plaintiff Martin Perez filed his Complaint against Alpha Beta Company dba Food 4 Less (erroneously sued as Food 4 Less GM) and Manager Dorali Cantero on July 17, 2019.

Plaintiff argues that he has been attempting to depose Defendant’s Person Most Qualified (“PMQ”) for over 35 months. Defendant unjustifiably refused. Plaintiff originally noticed the deposition for 30 categories. Defendant produced two witnesses who were deposed on 16 categories. Plaintiff eliminated two categories and now moves to compel the deposition of Defendant’s PMK on 12 remaining categories. Plaintiff seeks information about (1) Defendant’s policies, procedures, and training materials received by employees existing on the day of the incident regarding cleaning, maintenance, and repairs to the floor where Plaintiff fell, (2) Defendant’s selection, use, and identification of the flooring where Plaintiff fell, (3) Defendant’s knowledge of the flooring and the basis and rationale in selecting the flooring used where Plaintiff fell, and (4) identification of prior slip and falls that took place at the premises prior to the incident. Plaintiff also seeks sanctions.

Defendant argues that information about prior slip and falls is irrelevant, unduly burdensome, oppressive, and invades Defendant’s privacy rights. Defendant also argues that the choice of flooring is not a valid theory on which a slip-and-fall plaintiff can pursue his claim.

Plaintiff argues that his discovery requests are relevant to determining whether the flooring used where Plaintiff fell was unreasonably slippery when wet. Plaintiff also argues that none of the requested testimony is protected.

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 party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) 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).)

“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 produce for inspection any document, … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

A motion brought to compel a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction…in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Plaintiff moves to compel the deposition of Defendant’s PMA and seeks information about (1) Defendant’s policies, procedures, and training materials received by employees existing on the day of the incident regarding cleaning, maintenance, and repairs to the floor where Plaintiff fell, (2) Defendant’s selection, use, and identification of the flooring where Plaintiff fell, (3) Defendant’s knowledge of the flooring and the basis and rationale in selecting the flooring used where Plaintiff fell, and (4) identification of prior slip and falls that took place at the premises prior to the incident. The parties’ communications show they met and conferred on these issues. (Suarez Decl., ¶10; Exh. 2A-C.)

According to Defendant’s objections to deposition notices dated January 27, 2020 and January 20, 2022, Defendant objected to matters in Plaintiff’s deposition notices pertaining to the choice of flooring in the area where Plaintiff fell and prior slip and falls in the area. Defendant refused to produce a PMQ and documents in response to these categories. (Motion, Exh. 1F, 1B.)

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., section 2017.010.) Relevance in the discovery context is broader than evidence that is admissible at trial. Information is relevant if it might assist a party in evaluating the case, preparing for trial, or reaching a settlement. (Haniff v Superior Court (2017) 9 CA5th 191, 205.) “Admissibility is not the test and information unless privileged is discoverable if it might reasonably lead to admissible evidence.” (Id at p.206.) The scope of discovery is broad and some evidence brought to light in discovery may be unrelated or only tangentially related to the underlying causes of action. (Mercury Interactive Corp. v Klein (2007) 158 CA4th 60.)

The opposition does not touch on the categories concerning Defendant’s policies, procedures, and training materials received by employees regarding cleaning, maintenance, and repairs to the subject flooring. This information is discoverable.

Plaintiff also seeks information about how Defendant selected the flooring, arguing that Plaintiff’s expert will opine that the flooring used was unreasonably slippery when wet, the area was prone to spills, and that Defendant chose a cheaper flooring option to save money. The information is discoverable because it is relevant to Plaintiff’s fall.

Defendant cites to Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479, which provides that a store owner’s choice of a particular “mode of operation” does not eliminate a slip-and-fall plaintiff’s burden of proving the owner had knowledge of the dangerous condition that caused the accident. However, Moore defines “mode of operation” as a business’s choice of a particular mode such as leasing space to a restaurant and not preventing the restaurant’s customers from bringing food into a grocery store. Here, choosing flooring that was unreasonably slippery when wet is not a mode of operation. Moreover, the test for discoverability does not concern the legal theory under which a plaintiff may pursue their claims or the specific issues of the case. Rather, the test is whether the information is relevant to the subject matter of the lawsuit. Here, the subject matter is Plaintiff’s fall. Because the information about the choice of flooring is relevant to the condition of the area where Plaintiff fell, the information is discoverable.

Plaintiff also seeks information about prior slip and falls in the area where Plaintiff fell. Defendant argues that the information is inadmissible under Evidence Code sections 352, 1101. However, those code sections concern the court’s discretion to exclude evidence and evidence of a defendant’s prior bad acts or bad character. Here, information about prior slip and falls are not evidence of a defendant’s bad acts or character. Moreover, inadmissibility is not the test for discoverability. Rather, any relevant information that is admissible or reasonably calculated to lead to the discovery of admissible evidence is discoverable. Here, the information about prior slip and falls is relevant to the area where Plaintiff fell and is intended to lead to evidence that Defendant had notice that the area was unreasonably slippery when wet. Thus, the information is relevant and reasonably calculated to lead to admissible evidence.

Defendant also argues that Plaintiff’s deposition questions violate its right to privacy. Although Defendant has a right to privacy, Plaintiff’s valid discovery interest here outweighs Defendant’s right to privacy.

With respect to sanctions, the Court does not find that Defendant acted with substantial justification. However, Plaintiff’s request for over $5,000 in sanctions is excessive. The Court awards $1,880 in sanctions for 4 hours of attorney time at a rate of $450 per hour and filing fees.