Judge: John J. Kralik, Case: 23BBCV01346, Date: 2025-05-09 Tentative Ruling

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Case Number: 23BBCV01346    Hearing Date: May 9, 2025    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Sarmen Asadouryan (“Plaintiff”) alleges that on November 11, 2021 at approximately 2:45 p.m., Plaintiff was shopping at Home Depot located in Burbank.  Plaintiff alleges that at that time, a Home Depot employee (“Doe Operator”) was operating a piece of machinery to move a pallet stacked with wood when a piece of wood fell off the pallet and struck Plaintiff’s left extremity—specifically his left foot and ankle.  Plaintiff alleges that he has suffered significant personal injuries as a result of the subject incident.  Plaintiff alleges that Doe Operator was an employee/agent of Defendant Home Depot USA, Inc. (“Home Depot”) and was acting within the course and scope of their employment for their employer, manager, and/or principal Home Depot and Defendant Lucie Betancourt (“Betancourt”). 

The complaint, filed on June 15, 2023, alleges a single cause of action for negligence.

On January 17, 2024, the Court dismissed Betancourt from the complaint without prejudice pursuant to Plaintiff’s counsel’s oral request.

B.     Motion on Calendar

On April 9, 2025, Home Depot and Ethos Risk Services (“ERS”) filed a motion to quash Plaintiff’s deposition subpoena to ERS. 

The Court is not in receipt of an opposition brief.

DISCUSSION

            Home Depot and ERS move to quash Plaintiff’s testimony-only deposition subpoena for personal appearance to the person most qualified of non-party ERS.  They argue that the deposition subpoena does not describe with reasonable particularity the matters of examination; it seeks the mental impressions of defense counsel, which is protected attorney work product; and the subpoena is not reasonably calculated to lead to the discovery of admissible evidence.

            Home Depot argues that it retained ERS to provide assistance in anticipation of litigation arising from Plaintiff’s personal injury claim.  Home Depot argues that ERS performed surveillance of Plaintiff, as disclosed in response to Plaintiff’s FROG requests.  It argues that all surveillance video of Plaintiff made by ERS has been produced to Plaintiff in discovery.  (Mot. at 3:12-15.)

            Home Depot argues that the deposition subpoena fails to adequately state the matters on which the examination is requested pursuant to CCP § 2020.310(e).  Section 2020.310 applies to deposition subpoenas that command only the attendance and testimony of the deponent.  Subsection (e) states: “If the deponent is an organization, the subpoena shall describe with reasonable particularity the matters on which examination is requested. The subpoena shall also advise the organization of its duty to make the designation of employees or agents who will attend the deposition, as described in Section 2025.230.” 

            The deposition subpoena seeks to depose ERS’s PMQ for the following matters: “All documents, including photographs, surveillance, job orders, and invoices pertaining to Sarmen Asadouryan DOB: 12/19/1985.”  (Mot., Ex. A [Deposition Subpoena at § 4].)  The deposition subpoena is not accompanied by a request for production of documents. 

Home Depot argues that the matters for examination are not stated with reasonable particularity as it is unclear what “all documents” pertaining to Sarmen Asadouryan would entail.  There is also no limitation with respect to scope and time.  First, the Court will limit the examination to the more specific items, including photographs, surveillance, job orders or invoices.  Second, the Court will limit the examination to the surveillance of Plaintiff that was done in connection with this case.   

Home Depot also argues that deposition subpoena seeks attorney work product as the videos, reports, and corresponding notes made by the investigators were at the direction of defense counsel to evaluate and defend the case.  As stated in the motion papers, Home Depot already produced the surveillance video made by ERS to Plaintiff.  Having produced the surveillance video, Home Depot has waived the privilege with respect to the documents produced, and indicated an intention to rely upon it at trial. Therefore, questions about how long the surveillance took place, where the surveillance was conducted, whether the surveillance material was edited or tampered with, etc. would not be subject to the attorney work product doctrine at this point.  The subpoena does not request further documents, so further documents are not at issue here.

It is possible that questions regarding attorney work product (counsel’s impressions, legal theories, intention to use the video as impeachment evidence, etc.) may be subject to the qualified privilege of the attorney work product doctrine.  Defense counsel should preserve its claim of privilege by raising objections to specific questions at the deposition.

At this time, the Court denies the motion to quash the deposition subpoena. 

CONCLUSION AND ORDER

Defendant Home Depot, Inc. and Ethos Risk Services’ motion to quash Plaintiff’s deposition subpoena to Ethos Risk Services is denied. 

Defendant shall provide notice of this order.

DATED: May 9, 2025                                                            ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court