Judge: Jill Feeney, Case: 21STCV16929, Date: 2022-10-06 Tentative Ruling
Case Number: 21STCV16929 Hearing Date: October 6, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 6, 2022
21STCV16929
-Plaintiff’s Motion to Compel Defendant’s Further Responses to Plaintiff’s Request for Production of Documents (Set One) and Request for Sanctions
-Plaintiff’s Motion to Compel Defendant’s Further Responses to Plaintiff’s Special Interrogatories (Set One) and Request for Sanctions
-Motion for Order Appointing Discovery Referee and for Defendant to Appear for Second Deposition filed by Plaintiff Rose Calvanese
DECISION
The two motions to compel further are granted.
Further responses as outlined below are to be served within 30 days after the date of this order.
The Court imposes sanctions totally $3,620 jointly and severally on Defendant and Defendant’s Counsel of Record. These sanctions are due within 30 days after the date of this order.
With respect to the combined motion for an order appointing a discovery referee and a motion for defendant to appear for a second deposition, Plaintiff is ordered to pay a second motion fee (if Plaintiff has not done so already) prior to the hearing on this matter.
The motions to appoint a discovery referee and to compel a second deposition are denied.
Sanctions in the amount of $1,000 are imposed jointly and severally on Defendant and Defendant’s Counsel of Record. These sanctions are due within 30 days after the date of this order.
Motions to Compel Further
Motion to Compel Further Responses to Special Interrogatories
Based on the Second Supplement Responses served by Defendant on July 14, 2022, the motion is substantively moot except for Special Interrogatory No. 16.
Special Interrogatory No. 16 states: Please describe the location of each video camera (including security video cameras and closed-circuit TV cameras) inside the SUBJECT STORE as of May 23, 2019.
Initially, Defendant responded that it did not have security camera footage capturing the incident.
Defendant then supplemented this response stating that Defendant “does not have any documents showing or describing the location of each video camera inside the subject store as it appeared on the date of the incident in its possession, custody, or control and does not believe any such documents regarding same ever existed. Answering defendant is willing to make the subject premises available for inspection upon reasonable request.”
For the reasons set forth in Plaintiff’s separate statement, a further response is warranted.
Motion to Compel Further Responses to Requests for Production
Based on the supplemental responses served by Defendant on July 14, 2022, the motion is substantively moot except for Requests No. 30, 31, 73, 81 and 94.
For the reasons stated in the separate statement and in its reply brief, the motion to compel further is granted with respect to these requests.
Sanctions
On the record presented, the Court finds that sanctions are appropriate.
With respect to the motion to compel further responses to Special Interrogatories Plaintiff requests sanctions in the amount of $3,960 against Defendant and Defendant’s Counsel of Record. This is based upon 6 hours of attorney time at $650 per hour plus the $60 filing fee.
With respect to the motion to compel further responses to the Request for Production Plaintiff requests sanctions in the amount of $5,835 against Defendant and Defendant’s Counsel of Record. This is based upon 8.5 hours of attorney time at $650 per hour plus a $60 motion fee plus an addition sanction of $250 per Code of Civil Procedure Section 2023.050(a)(1).
The Court will impose sanctions but in a lesser amount. The requested hourly rate does not seem reasonable given the relatively simple nature of these motions in terms of complexity, although not in terms of volume. Additionally, portions of the various pleadings are duplicative because they involve the same factual recitations.
The Court therefore imposes sanctions totaling $3,620 (10 hours of time at $350 per hour plus two motions fees). The Court declines to impose an additional sanctions under Section 2023.050(a)(1).
Motion for Order Appointing Discovery Referee and for Defendant to Appear for Second Deposition filed by Plaintiff Rose Calvanese
Background
This is an action for Negligence and Premises Liability arising from a slip and fall incident which took place in May 2019. Plaintiff Rose Calvanese filed her Complaint against Albertsons Companies, Inc. on May 5, 2021.
Plaintiff filed the instant motion for orders appointing discovery referee and for Defendant to appear a second deposition on August 10, 2022.
Summary
Moving Arguments
Plaintiff argues that a discovery referee should preside over the remainder of discovery in this matter because Defendant’s misuse of discovery has caused numerous hearings. Additionally, Plaintiff alleges Defendant’s counsel’s uncivil and improper behavior obstructed the PMK deposition. Plaintiff also seeks sanctions.
Opposition Arguments
Defendant argues that Plaintiff improperly brought this motion without meeting and conferring with defense counsel. Defendant also argues that Plaintiff fails to identify any inappropriate conduct or improper objections. Additionally, Plaintiff fails to identify any exceptional circumstances justifying the appointment of a discovery referee. Defendant also seeks sanctions against Plaintiff.
Reply Arguments
Plaintiff argues Defendant’s opposition is procedurally defective because it included the entire deposition rather than providing only the relevant portions. Plaintiff also argues Defendant fails to oppose Plaintiff’s motion to compel a second deposition of Defendant’s PMK. Plaintiff reiterates her arguments from the motion regarding the necessity of a discovery referee.
Legal Standard
Compel Deposition
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., section 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., section 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., section 2025.410, subd. (a).)
Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer .¿.¿.¿.”
“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480, subd. (i).)
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).)
“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.” (Code Civ. Proc. section 2017.010) Matters sought are properly discoverable if they will aid in a party's preparation for trial. (See Morris Stulsaft Foundation v. Superior Court (1966) 245 Cal.App.2d 409, 423.) The threshold for relevance is low, and doubts as to relevance “should generally be resolved in favor of permitting discovery.” Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.
Discovery Referee
“When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc., § 639, subd. (a)(5).) Appointment requires a court finding of “exceptional circumstances.” (Code Civ. Proc., § 639, subd. (d)(2).)
Absent agreement of all parties, courts may not make blanket referrals, except “in the unusual case where a majority of factors” favor reference, including: “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 105.) “Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.” (Id. at p. 106.)
“A discovery referee may be appointed to monitor depositions where antagonism between the parties might otherwise prolong the proceedings and frustrate discovery.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1804.5 [emphasis original].)
Sanctions
Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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., section 2025.480.)
Discussion
The parties’ disputes concern (1) whether Defendant’s PMK should be compelled to attend a second deposition, (2) whether a discovery referee is necessary for the remainder of discovery, and (3) sanctions.
Meet and Confer
Motions to compel further answers at a deposition must be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc. sections 2016.040 and 2025.480, subd. (b).) Plaintiff filed this motion after unilaterally ending the deposition without making efforts to work through discovery disputes or speaking to Defendant’s counsel. (Valencia Depo., 212:18-213:4.) Plaintiff’s declaration also contains no evidence of any efforts to meet and confer. Plaintiff thus fails to meet her meet and confer obligations.
Whether Defendant’s PMK should appear for a second deposition
Plaintiff’s counsel alleges that she did not complete the deposition at issue because of Defendant’s misconduct and is thus entitled to a second deposition of Defendant’s PMK.
Plaintiff failed to file a separate statement of matters in dispute required by Cal. Rules of Court, rule 3.1345, subd. (a), (c). The statement should include factual or legal reasons why a further answer should be compelled. The Court cannot determine whether further deposition testimony is necessary or why further answers should be compelled. Plaintiff’s motion is thus denied.
Plaintiff’s argument that Defendant’s opposition is procedurally defective because Defendant lodged the entire deposition testimony also fails. Plaintiff’s motion alleges Defendant’s conduct throughout deposition was improper. Thus, the entire deposition is relevant and was appropriately lodged.
Discovery Referee
Plaintiff argues that exceptional circumstances exist to justify the appointment of a discovery referee because Defendant’s misconduct has resulted in six discovery motions being filed and because Defendant’s behavior is unlikely to change at subsequent deposition proceedings. However, as discussed below, Defendant’s conduct has not been so outrageous as to warrant the appointment of a discovery referee. Without more evidence that there will be more complex discovery disputes, the Court cannot find that there are exceptional circumstances that would require a discovery referee for the remainder of discovery.
Sanctions and Conduct During Deposition
A review of the deposition transcript reveals Plaintiff’s allegations of Defendant’s improper behavior do not rise to the level necessary for the appointment of a discovery referee.
Plaintiff alleges that Defendant’s counsel made improper speaking objections and spoke for the deponent at the Valencia deposition: 58:5-7, 21-22; 175:1-14; 183:8-184:12; 208:4-209:24;and 210:10-21
58:5-7: Defendant’s Counsel states “Objection, misstates testimony. You can answer, if you understand the question.” This is an appropriate objection and Defendant’s counsel reasonably instructs the witness to answer the question.
58:21-22: Defendant’s Counsel states “Counsel, the question is vague and ambiguous. He’s already –” This is a speaking objection.
175:1-14: Defendant’s Counsel states “Objection, misstates testimony, vague, ambiguous, calls for speculation, lacks foundation. Counsel, he’s already told you –” as well as “You know what? Then stop asking the same questions over and over.” These are reasonable objections to Plaintiff’s Counsel’s repetitive questions.
183:8-184:12; 208:4-209:24; 210:10-21: Same as above. Defendant’s Counsel objects to Plaintiff’s Counsel misstating the witness’s testimony and asking repetitive questions. These are reasonable objections.
Plaintiff also alleges Defendant inappropriately took breaks in the middle of questioning at Valencia Depo: 73:23-77:24; 210: 10-14; and 211:4-10.
Regarding the first break, the witness asked for a bathroom break while Plaintiff’s Counsel was opening a document due to his own failure to have documents prepared for deposition. The witness had just answered a question and another one had not been asked. The request for a break was appropriate because the witness was asking for a bathroom break and Plaintiff’s counsel was attempting to open a document. At the second request for a break, there was a question pending. Defendant’s counsel should not have unilaterally decided to take a break.
Although both parties displayed improper conduct at deposition, the misconduct does not rise to the level requiring a discovery referee. Defendant’s Counsel should not have made speaking objections and should not have unilaterally taken a break during questioning. Additionally, Plaintiff’s Counsel should have been informed of the witness’s meeting that could have cut short deposition time. However, Plaintiff’s Counsel repeatedly talked over Defendant’s Counsel, made inappropriate remarks, inappropriately denied breaks, repeatedly inquired as to protected information, improperly asked Defendant’s PMK to log into his work computer to disclose protected information in the middle of deposition, asked abusively repetitive questions, and unilaterally terminated the deposition without completing the record. Although both parties engaged in inappropriate behavior for a deposition, Plaintiff’s Counsel’s behavior would not have been appropriate in the presence of a judicial officer. Counsel for both parties are warned that they must maintain the civility required of attorneys by the State Bar of California.
Plaintiff’s allegations of witness coaching are also unfounded. It appears that Defendant’s PMK made arrangements to cancel a meeting which might have cut short the deposition in a good faith effort to complete the deposition. Plaintiff has offered no other evidence that the witness was coached.
Both parties seek sanctions. Because the motion is denied and Plaintiff’s counsel engaged in inappropriate conduct during deposition, Plaintiff’s request for sanctions is denied. Because many of these issues could have been resolved through reasonable meet and confer efforts which Plaintiff’s counsel failed to take and because Plaintiff filed this unsuccessful motion without substantial justification, Defendant’s request for sanctions is granted.
Defendant requests monetary sanctions in the amount of $1,000 against Plaintiff and Plaintiff’s Counsel of Record. The amount is based upon five hours of time at $200 per hour. The Court finds that the amount requested is reasonable under the circumstances.
