Judge Kerry Bensinger, Case Number: 21STCV21970, Date: 2023-10-11 Tentative Ruling

Judge: Kerry Bensinger, Case: 21STCV21970, Date: 2023-10-11 Tentative Ruling

Case Number: 21STCV21970 Hearing Date: October 11, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 11, 2023 TRIAL DATE: February 5, 2024

CASE: Zachary Birns v. Arakelian Enterprises, Inc.

CASE NO.: 21STCV21970

MOTION TO COMPEL DEPOSITION OF DEFENDANT’S PERSON MOST QUALIFIED (PMQ) AND DOCUMENTS RELATED TO THE PMQ CATEGORIES

MOVING PARTY: Plaintiff Zachary Birns

RESPONDING PARTY: Defendant Arakelian Enterprises Inc. dba Athens Services

I. BACKGROUND

On June 10, 2021, Plaintiff, Zachary Birns, initiated this action against Defendant, Arakelian Enterprises Inc. dba Athens Services, for injuries arising from a bicyclist versus motor vehicle accident. Plaintiff alleges Jorge Martin Hernandez (“Hernandez”) was driving a vehicle when he attempted a U-turn just as Plaintiff passed on his bicycle. Hernandez was driving in the course and scope of his employment with Defendant.

On March 6, 2023, Plaintiff served Defendant with a deposition notice and request for production of documents for Defendant’s person most qualified (PMQ). The Notice sets forth eight (8) deposition categories and eight (8) corresponding documents requests.

Defendants agreed to produce a deponent for two deposition categories and interposed objections for the remaining. The parties participated in an Informal Discovery Conference on July 17, 2023. Plaintiff agreed to withdraw category no. 3 and request no. 3. However, the parties did not resolve the renaming disputes.

On August 22, 2023, Plaintiff filed this motion to compel the deposition of Defendant’s person most qualified for category nos. 1, 4, 6-8, and to produce at deposition documents responsive to requests nos. 1, 2, 4-8. Plaintiff seeks sanctions against Defendant.

Defendant opposes and Plaintiff replies.

II. LEGAL STANDARDS

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Monetary Sanctions¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)¿¿¿¿

III. DISCUSSION

PMQ Categories and Requests

The deposition notice sets forth 8 PMQ categories and 8 mirroring production requests. Defendant objects to category nos. 1, 4, 6, 7, and 8, and request nos. 1, 2, and 4-8. Category Nos. 2 and 5 are not at issue. Category/Request Nos. 1, 2, and 4-8 seek the following:

No. 1: Personnel file of Jorge Martin Hernandez

No. 2: Training documents related to Jorge Martin Hernandez

No. 4: Discipline documents related to Jorge Martin Hernandez

No. 5: Written policies for safe operation of vehicles by Defendant Athens

No. 6: Accident history for Jorge Martin Hernandez

No. 7: Incident history for Jorge Martin Hernandez

No. 8: Drug and Alcohol screens for Jorge Martin Hernandez

Defendant’s Objections

Defendant interposes five principal objections to the PMQ categories and requests. The Court addresses each in turn.

Objection no. 1: Not reasonably calculated to discovery of admissible evidence.

Defendant argues the PMQ categories seek discovery to bolster Plaintiff’s negligent entrustment claims. Further, because Defendant has already admitted vicarious liability, pursuant to Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853 and Diaz v. Carcamo (2011) 51 Cal.4th 1148, the PMQ categories seek inadmissible evidence. For this reason, Defendant argues the motion should be denied.

This objection lacks merit. The PMQ categories are relevant to Mr. Hernandez’s alleged negligent driving. Simply because the discovery requests bear upon claims that are no longer at issue (i.e., Defendant’s vicarious liability), that does not preclude discovery of information bearing on Mr. Hernandez’ negligence.

Objection no. 2: Invasion of privacy.

Defendant argues the discovery requests invade Mr. Hernandez’s discovery. This objection also lacks merit. Given Mr. Hernandez’s fitness to drive to a motor vehicle is in controversy, the PMQ categories are directly relevant to that issue. Defendant fails to carry its initial burden to show the seriousness of the prospective invasion overcomes Plaintiff’s need for the discovery.

Objection no. 3: Character evidence.

Defendant argues the PMQ categories are objectionable based on character evidence. Evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (Evid. Code, § 1101.) However, “admissibility is not a prerequisite to discovery.” (Volkswagen of Am., Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1491.) As Plaintiff points out, the standard at the discovery stage is whether the information sought is reasonably calculated to lead to the discovery of admissible evidence. The Court finds the PMQ categories and documents request are calculated to that end. Defendant can raise these objections at trial.

Objection No. 4: Work Product Doctrine and Attorney-Client Privilege.

Defendant objected to the requests based on privilege. However, Defendant did not provide a privilege log. Absent a privilege log, the Court cannot assess the merits of Defendant’s assertion of privilege.

Objection No. 5: Lack of particularity/Vague/Overbroad in time and scope.

These objections are interrelated. Defendant argues the PMQ categories and requests lack reasonable particularity. As to particularity, the Court finds the PMQ categories and requests are sufficiently clear. The categories are not vague. However, the Court agrees the categories and requests are overbroad in time. Indeed, there are no limitations on the timeframe. As such, the Court modifies the deposition notice and limits the timeframe of the categories and requests to the five years preceding the incident.

Monetary Sanctions

Plaintiff seeks sanctions against Defendant. As Defendant interposed meritorious and unmeritorious objections to Plaintiff’s deposition notice, the Court finds reduced sanctions are warranted. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Accordingly, sanctions are imposed against Defendant in the total sum of $861.65.

IV. CONCLUSION

The motion to compel is granted in part. Defendant Arakelian Enterprises, Inc. dba Athens Services is ordered to provide a person most qualified for the categories and documents responsive to the production requests within 30 days of this order.

The categories and requests are limited to five years preceding the incident.

The request for sanctions is granted. Defendant is ordered to pay $861.65 in sanctions to Plaintiff, by and through his counsel, within 30 days of this order.

Moving party to give notice.

Dated: October 11, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.