Judge Jill Feeney, Case 20STCV21467 2023-02-06 Tentative Ruling

This is an action for negligence and premises liability arising from a trip and fall incident which took place in January 2019. Plaintiff Carolina Smalling filed her Complaint against Defendants The Home Depot (“Home Depot or Defendant”) and Matthew John Rasdel on June 8, 2020.

Plaintiff moves to compel Defendant to produce its PMQ as to Defendant’s surveillance cameras. Plaintiff seeks details about the cameras, including which personnel are responsible for reviewing the footage, which personnel are responsible for preserving the footage, the surveillance in place at the time of the accident, Defendant’s policies regarding the footage, and the identities of each person who saw the footage and had access to and custody of the footage. Throughout discovery, Plaintiff sought either footage of the incident or all footage available from the subject area on the day of her fall. Plaintiff argues footage of the area may exist because Defendant provided three previously undisclosed video clips of Plaintiff and her husband in the store. Plaintiff also requests sanctions.

Defendant moves for a protective order denying Plaintiff’s request to depose its PMQ. Defendant argues that it has already confirmed in verified discovery responses and offered a declaration made under oath that no footage of the incident and no footage of the area where Plaintiff fell exists. Plaintiff’s request to depose Defendant’s PMQ to gain more details about Defendant’s CCTV system would damage its business interests by giving the public access to the layout of the Home Depot store and the layout of the CCTV system. Defendant argues that allowing Plaintiff to obtain this information would create a significant security risk. Defendant also requests sanctions.

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).)

On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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.)

Code of Civil Procedure section 2031.060 provides that a party can move for a protective order “[w]hen an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded.” (Code Civ. Proc., § 2031.060(a).) The court may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense upon a showing of good cause. (Id., § 2031.060(b).)¿ The protective order may include, but is not limited to trade secrets or other confidential research development, or commercial information. (See Id., § 2031.060(b)(5).)¿¿

A court shall impose sanctions on a party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it 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., § 2031.060(h).)

Plaintiff moves for an order compelling the deposition of Defendant’s PMQ. Defendant in opposition moves for a protective order on the grounds that Plaintiff’s PMQ categories seeking information about the layout and nature of Defendant’s CCTV system is overbroad.

Plaintiff’s counsel testifies that he noticed the deposition of Defendant’s PMQ on March 9, 2021 and set the deposition for April 2, 2021. (Nikfarjam Decl., ¶21.) Defendant objected to the notice on March 25, 2021. (Id., ¶22.) After meeting and conferring, Plaintiff deposed Matthew John Rasdel, who could not testify as to Defendant’s policies and procedures regarding the handling and preservation of the surveillance video on the day of the subject fall. (Id., ¶24.) Rasdel only testified that he did view the surveillance footage of the day of the fall and requested that it be preserved. (Id., ¶25.) Rasdel also testified that he watched footage of Plaintiff and her husband entering the store and checking out. (Id., ¶26.) Plaintiff served a second notice of deposition of Defendant’s PMQ on July 18, 2022. (Id., ¶30.) Defendant objected and advised it would not produce a witness for deposition. (Id., ¶31.) Defendant offered Plaintiff a signed declaration from its asset protection manager discussing the CCTV system. (Id., ¶36.) On October 7, 2022, Defendant advised that they had three video clips depicting Plaintiff and her husband in the store that were not previously produced. (Id., ¶37.)

Defendant in opposition argues that it already confirmed in verified discovery responses and offered a declaration under oath that no footage exists of the subject fall or the area where the fall occurred because there are no cameras in place in the area where Plaintiff fell. Defendant’s responses to Plaintiff’s Form Interrogatories state: “On information and belief, the subject INCIDENT was not captured by any CCTV video surveillance footage because there are no cameras located in Aisle 4 of Department 27 where the INCIDENT occurred. Plaintiff’s husband, Philip Smalling took photographs of his wife and the alleged “plastic banding” Plaintiff tripped on. Home Depot is in possession of a still photograph showing Plaintiff Smalling and her husband entering the subject store through the main entrance at approximately 4:56p.m. Responding Party is also in possession of photographs of the scene of the INCIDENT.” Additionally, Defendant’s counsel testifies that it offered to provide a confidential declaration from its Multi-Unit Asset Protection Manager that would further confirms under penalty of perjury that no footage of the incident or area ever existed. (Abrante Decl., ¶6.)

Under the broad rules of discovery, Plaintiff has the right to delve into issues surrounding the security footage and is not bound to accept a declaration. Turning to Defendant’s arguments, the party claiming a trade secret privilege under Evidence Code Section 1060 has the burden of proving the party’s entitlement to that privilege. (Amgen Inc. v. California Correctional Health Care Servs. (2020) 47 CA5th 716, 733.) The evidence Code defines a trade secret as anything defined as a trade secret under the Uniform Trade Sections Act. (Evidence code Section 1061(a)(1).) The Uniform Trade Secrets Act defines the term as information, including a formula, pattern, compilation, program, device method, technique or process that derives independent economic value from not being generally known to the public or others who may obtain economic value from its disclosure and use and is the subject of reasonable efforts to keep the information secret. (Civil Code Section 3426.1(d).)