Judge Kerry Bensinger, Case 21STCV25428 2023-03-27 Tentative Ruling

On July 9, 2021, Plaintiff Dorotea Henriquez filed this action against Defendant Walmart, Inc. (“Defendant”) (erroneously sued as “Walmart Claims Services, Inc.”) arising from a June 30, 2021, slip and fall. Plaintiff alleges that Defendant failed to clean up and maintain the bathroom floors of the Subject Premises, allowing Plaintiff to slip and fall.

On February 27, 2023, Plaintiff filed this motion for protective order arguing that Defendant’s should be ordered to destroy improperly obtained medical records from eleven of Plaintiff’s medical providers because Defendant never served Plaintiff with notice of the deposition subpoenas.

On March 16, 2023, Defendant filed an opposition, arguing that Defendant should be allowed to retain relevant medical records obtained by the subpoenas because (1) some of the medical records are relevant to Plaintiff’s claimed injuries and (2) the medical records show that Plaintiff was untruthful in her response to interrogatories and when testifying at deposition that she had not received treatment of any body part that was allegedly injured in the incident. Alternatively, Defendant requests that discovery be reopened so that Defendant may cure the subpoenas.

On March 17, 2023, Plaintiff filed a reply, arguing that Defendant’s opposition should not be considered because it was untimely filed and further, that Defendant failed to address the intrusion of Plaintiff’s privacy.

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) The motion shall be accompanied by a meet and confer declaration. (Id., subd. (a).) 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 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., § 2025.420, subd. (h).)

Plaintiff seeks a protective order directing Defendant to destroy all medical records obtained by improperly noticed subpoenas and to preclude Defendant and their witnesses from relying on those records during discovery or at trial for any purpose. It is undisputed that Defendant did not provide Plaintiff with notice of the subpoenas.

This motion came on for hearing on March 22, 2023. Following the argument, the Court (1) ordered the parties to meet and confer regarding the language of the proposed protective order; and (2) for Plaintiff to draft the proposed protective order. The Court continued the hearing to address the remaining issues which include:

1. Whether Defendant will need to re-serve subpoenas, properly noticed, and allow Plaintiff an opportunity to challenge the production of documents based upon the service/language of the subpoenas;

2. Plaintiff’s request to preclude Defendant’s use of Plaintiff’s interrogatory responses as evidence at trial. Because the interrogatory responses were provided prior to the improperly issued subpoenas, the motion to preclude use of the interrogatory responses is DENIED.

3. Plaintiff’s request to preclude Defendant’s use of Plaintiff’s August 25, 2022 deposition testimony is GRANTED. Defendant is precluded from using Page 42, lines 9-16 and Page 94, lines 21-25 of Plaintiff’s deposition testimony for any purpose including impeachment. (Henriquez Depo., Colbert Decl., Ex. 3, pp. 42:9-16, 94:21-25.) No similar restrictions are placed upon the remainder of Plaintiff’s deposition testimony. The Court finds that Defendant’s improper service precluded Plaintiff from objecting to the disclosure of the medical records and, alternatively, from knowing that Defendant obtained such records. The consequence being that Plaintiff was unable to review the records in advance of the deposition. A contrary ruling would encourage discovery abuse.

1. Parties are ordered to draft language for the proposed protective order regarding the improperly obtained records.

2. Defendant may re-serve the subpoenas and notice of the subpoenas to allow Plaintiff an opportunity to challenge the requests, unless the parties reach an agreement as to which of the records Defendant improperly obtained must be destroyed and which of the records may be used.

3. Defendant may use Plaintiff’s interrogatory responses as evidence, impeachment, or other permissible purpose.

4. Defendant is precluded from using Plaintiff’s answers during deposition (Henriquez Depo., Colbert Decl., Ex. 3, pp. 42:9-16, 94:21-25) for impeachment purposes.

On October 18, 2022, the Court granted Defendant’s October 17, 2022 ex parte application for a trial continuance. Pursuant to the application, trial was continued from January 6, 2023 to September 26, 2023. However, discovery deadlines remained related to the January 6, 2023 trial date. As such, December 7, 2022 was the discovery deadline.

On November 14, 2022, Defendant filed this motion to extend discovery deadlines and motion cut-off dates.

On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Code Civ. Proc., § 2024.050, subd. (b).)

Defendant seeks an order setting discovery deadlines and motion cut-off dates to the current trial date of September 26, 2023. The basis of for this motion is (1) Defendant received Plaintiff’s subpoenaed medical records on October 27, 2022 which indicated that Plaintiff’s medical specials are 300% more than previously indicated in Plaintiff’s discovery responses; and (2) Defendant learned for the first time on November 1, 2022 that Plaintiff requires a knee replacement surgery. Defendant argues the new surgery will dramatically increase Plaintiff’s medical specials. The cost and evaluation of this additional treatment, however, cannot be ascertained prior to the close of discovery. (Colbert Decl., ¶¶ 11, 12, 14.)

Plaintiff contends that (1) Defendant was on notice that Plaintiff had surgery on her knee when she appeared for a videorecorded deposition in a knee brace and with crutches and could have propounded more discovery, (2) Defendant’s failure to notice a Defense Medical Examination or to set expert depositions further evidences Defendant’s lack of diligence in conducting discovery, and (3) the Court previously denied Defendant’s request to continue the discovery cutoff date as part of Defendant’s October 17, 2022 ex parte application.

“The discovery statutes were intended to curtail surprises, enable each side to learn as much as possible about the strengths and weaknesses of its case, and thereby facilitate realistic settlements and efficient trials.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 543, fn. 3.) Here, appearing for a deposition in a knee brace and with the use of crutches does not apprise Defendant of Plaintiff’s need for reconstructive knee surgery. Plaintiff learned of that fact on November 10, 2022. (See Colbert Decl., ¶ 11.)

Moreover, Defendant requested Plaintiff’s deposition in May 2022, but Plaintiff was not available until August 25, 2022. Defendant propounded two sets of written discovery between November 2021 and August 2022, having received Plaintiff’s latest responses on October 27, 2022. Further, Defendant did not learn until receiving Plaintiff’s October 27 discovery responses that her medical specials were significantly more than previously indicated. (See Colbert Decl.) Defendant presses the need to reopen discovery because Plaintiff has not made her medical and retained experts available; Defendant needs to conduct an IME of Plaintiff to meet Plaintiff’s claims for future medical care; and Plaintiff has not disclosed necessary records concerning prior medical care. While Plaintiff makes a good point that Defendant could have been more diligent, good cause exists to reopen discovery.

D. CONCLUSION
The motion is GRANTED. Discovery and all related dates are continued to the September 26, 2023, trial date.

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.

Hon. Kerry Bensinger

Judge of the Superior Court