Judge Kerry Bensinger, Case Number: 22STCV06025, Date: 2023-10-02 Tentative Ruling

MOTION TO COMPEL DEPOSITION OF DEFENDANT STARBUCKS’S EMPLOYEES AND PERSONS MOST QUALIFIED

On February 17, 2022, Plaintiff, Morgan Wior, initiated this premises liability action against Defendants, Starbucks Corporation (“Starbucks”), Susan Mary Quagletti, and Joseph James Quagletti, for injuries Plaintiff sustained on Defendants’ premises. On March 4, 2020, Plaintiff was standing near the outdoor service window at a Starbucks store waiting for her coffee when a vehicle pulling into a parking stall near Plaintiff “jumped the curb” and struck the Plaintiff. Starbucks is the landlord and Quagletti Defendants are the property owners of the subject Starbucks store.

On November 14, 2022, Plaintiff served Starbucks with a Notice of Taking Deposition of Defendant’s Employee’s and/or Person(s) Most Qualified. The Notice sets forth fourteen (14) categories of employees and/or person/s most qualified for deposition and ten (10) requests for production of documents at deposition. The deposition was noticed for January 11, 2023.

On January 5, 2023, Starbucks served an Objection to the Notice. The parties engaged in meet and confer efforts to resolve the dispute and reschedule the deposition to a mutually agreeable date. However, to date, the deposition has not taken place.

On February 24, 2023, Plaintiff filed this motion to compel the deposition of Starbucks’s employee(s) and/or person(s) most qualified and to produce at deposition documents responsive to the deposition notice. Plaintiff seeks sanctions against Starbucks.

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).)

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).)¿¿¿¿

Category No. 1: “The employee/agent who first came to the LOCATION OF INCIDENT (as used herein, the term “LOCATION OF THE INCIDENT” shall refer to the outdoor area of the customer service window/waiting area and the adjacent parking lot located at 17254 Lakewood Boulevard, Bellflower, CA 90706, as depicted in Exhibit 1 attached hereto) after Plaintiff had been struck by a vehicle at the LOCATION OF THE INCIDENT.”

Starbucks objected to this deposition category because it seeks production of a specific witness whose identity Starbucks does not know. Starbucks stated as much in its Responses to Plaintiff’s discovery. (Ex. E, Starbucks’s Response to Special Interrogatory No. 18.) Starbucks argues that it has not “refused” to produce an employee for Category No. 1 when Starbucks does not know who that person is. The Court agrees. Accordingly, the motion to compel as to Category No. 1 is DENIED.

Category No. 3: “The highest ranking manager of the Starbucks location where Plaintiff was struck by a vehicle at the LOCATION OF INCIDENT, whether on duty or not at the time of the INCIDENT.”

Starbucks also objected to this deposition category because it seeks production of a specific witness. Further, Starbucks identified Shift Supervisor Kendall Pancorvo as the highest ranking store manager on duty at the time of the incident and as the manager who called in the incident report. (Ex. E, Starbucks’s Response to Special Interrogatory Nos. 72.) As such, Starbucks argues the deposition notice is defective because Ms. Pancorvo is not a deposition “category” or “topic” but a witness that the notice should have identified. Not so. If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. (Code Civ. Proc., § 2025.230.) Here, the deponent named is Starbucks. Starbucks is not a natural person. Therefore, CCP section 2025.230 applies. Further, the deposition notice describes with reasonable particularity the matters on which examination is requested. That the deposition notice intersperses deposition categories with the person(s) to be produced for deposition does not make deposition notice unclear or defective.

In sum, Ms. Pancorvo, as a current Starbucks employee, should be produced for deposition, for categories 3.^{^[1]} As such, the motion to compel as to Category No. 3 is GRANTED.

Category No. 4: “The highest ranking manager of the Starbucks location where Plaintiff was struck by a vehicle at the LOCATION OF INCIDENT, who was on duty at the time of the INCIDENT.”

Starbucks also objected to this deposition category because it seeks production of a specific witness. Further, Starbucks previously identified Store Manager Jennifer Nunez as the highest ranking manager at the subject Starbucks store at the time of the incident. (Ex. E, Starbucks’s Response to Special Interrogatory No. 73). Since Plaintiff has the information to properly identify Ms. Nunez, Starbucks again argues the deposition notice is defective for failure to state Nunez’s names. Moreover, Starbucks argues it cannot produce Nunez for deposition because she is no longer employed by Starbucks. Starbucks stated as much in its responses to Plaintiff’s discovery and provided Plaintiff with Ms. Nunez’s contact information to serve a subpoena and deposition notice.

Starbucks agreed to produce its employee(s)/PMQ(s) for these categories conditioned upon finding a mutually agreeable deposition date and subject to the following objections (1) limiting Category No. 2 to matters that are not subject to attorney-client communications or work product privilege, and (2) limiting the time period of Category Nos. 5 and 6 to Starbucks’s time as a tenant at the property.

Plaintiff argues Starbucks should be compelled to produce a deponent for these categories because defense counsel failed to provide available dates despite Plaintiff’s counsel’s many requests.

Starbucks contends Plaintiff’s counsel misrepresents having contacted Defense counsel on numerous occasions regarding deposition dates. Starbucks further points to Plaintiff’s insistence on a deposition date for all the categories despite Starbucks’s objections to Category Nos. 1, 3, and 4, and to categories involving state-wide and nation-wide discovery (Category Nos. 7-13, discussed infra) as the reason an agreement for a deposition date could not be reached. Starbucks further contends taking the depositions on Category Nos. 2, 5, and 6 would be pointless since these categories require production of privileged documents.

This finger-pointing is unproductive. Based on the foregoing, two points surface: (1) Plaintiff is entitled to take the deposition of Starbucks’s PMQ, and (2) Starbucks failed to move for a protective order (or to obtain a stipulated protective order) for the purportedly privileged documents which it now raises as shield for not producing a PMQ at all. This is improper and undermines the discovery process. Starbucks must produce a PMQ for Category Nos. 2, 5, and 6. To the extent the deposition notice seeks production of privileged documents, Starbucks must provide a privilege log.

Starbucks objects[2] to Category Nos. 7-13 because they seek state-wide and nation-wide discovery that is unduly burdensome and oppressive. Category Nos. 7 and 8 seeks discovery of similar prior incidents for the ten-year period prior to the incident in similar Starbucks stores (i.e., Starbucks stores with outdoor customer service windows) in California and throughout the United States. Category Nos. 9-13 seeks discovery of bollard placements for the ten-year period prior to the incident in Starbucks stores (i.e., Starbucks stores with outdoor customer service windows) in California and throughout the United States.

Evidence of prior similar curb jumping incidents at other similarly designed Starbucks is relevant to the issues herein. With respect to the deposition of the PMK concerning bollard placement, the PMK can explain why “Starbucks does not have a specific criteria concerning the installation of bollards.” (Starbucks, Opp. p. 13.)[3] The relevant issue requires the Court to balance the interests at stake with the burden and productivity of the potential production.

Plaintiff argues Starbucks should have moved for a protective order to address their concerns over the breadth of these categories. Plaintiff is mistaken. When served with a deposition notice, a party may file a motion for protective order, (CCP section 2025.420), or serve written objections no later than three days prior to the noticed deposition date, (CCP section 2025.410(a), (b)). Here, Starbucks chose to serve written objections, and did so on January 5, 2023—more than three days prior to the noticed deposition date of January 11, 2023. (Notice of Lodging, Ex. Q.) And as is evident, Plaintiff thereafter filed this motion. Having filed this motion, Starbucks’s properly served objections may be considered in the disposition of Plaintiff’s motion. Further, the Court agrees with Starbucks that the time period of ten years prior to the underlying incident is overbroad. The Court is inclined to limit the time period to five years. The Court is also inclined to limit these categories to the Starbucks stores with outdoor customer service windows in the State of California. Limiting the categories to state-wide discovery of similar prior incidents for a five year period is sufficient to meet the needs of this case.[4]

In sum, the Court finds Category Nos. 7-13 are overbroad in time and scope. The Court limits these categories to the five years prior to the incident and to Starbucks stores in the State of California.

Plaintiff included ten Requests for Production of Documents in the deposition notice. Starbucks served a written objection to all ten requests. The Court addresses each in turn.

Despite asserting objections, Starbucks indicated it would comply with these production requests at the time of deposition and produce non-privileged documents pursuant to a stipulated protective order. Plaintiff argues a further response is warranted, as is a responsive document production, but wholly fails to explain why a further response is warranted. Accordingly, the motion as to Requests for Production Nos. 1-3 is DENED.

These requests mirror Category nos. 7-13. As with Category Nos. 7-13, Starbucks objected to Requests for Production Nos. 4-10 as unduly burdensome. The Court agrees and limits Nos. 4-10 to the five years prior to the incident and to Starbucks stores in the State of California.

Plaintiff seeks sanctions against Starbuck in connection with the foregoing motions. As Starbucks has 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 Starbucks in the total sum of $561.65, consisting of 2 hours at plaintiff’s counsel’s hourly rate and $61.65 in filing fees.

The motion to compel as to Category Nos. 2, 3, 5, and 6 is granted. Defendant Starbucks Corporation is ordered to provide person(s) most qualified for these categories within 30 days of this order.

The motion to compel as to Category Nos. 7-13 is granted in part. The Court limits these categories to the five year period prior to the incident and to Starbucks stores in the State of California with a similar architectural footprint (i.e., outdoor customer service windows).

The motion to compel as to Requests for Production Nos. 4-10 is granted in part. The Court limits these production requests to the five year period prior to the incident and to Starbucks stores in the State of California with a similar architectural footprint (i.e., outdoor customer service windows).

The request for sanctions is granted. Starbucks is ordered to pay $561.65 in sanctions to Plaintiff, by and through her counsel, within 30 days of this order.

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.

[1] Nor is Plaintiff required to serve Pancorvo, a party-affiliated witness, with a subpoena. (See Code Civ. Proc., § 2025.280, subd. (a).)

[2] Starbucks also objects to these categories as cumulative and duplicative of the discovery Plaintiff sought in propounding Special Interrogatories, Set One, and Request for Production of Documents, Set One and Two. “Nothing in either [Code of Civil Procedure] section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.” (Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997.) As the Carter court observed, “the inspection of documents procedure is quite different from a deposition at which a party is required to bring documents.” (Id.) Likewise, Plaintiff may seek the same documents through a properly served deposition notice.

[3] Indeed, this appears to be the very subject of Mr. Bromham’s declaration.

[4] Starbucks submits the Declaration of Anthony Spacciante to demonstrate the burden it would impose on Starbucks to discover the information which Plaintiff seeks with Category Nos. 7-13. Mr. Spacciante describes the challenge, and thus, the burden it would impose in retrieving the prior claims information Plaintiff seeks. As Starbucks states in its opposition – “the present action is not a complex matter.” (Starbucks Opp. at p. 13.) The information to be retrieved is similarly not so complex. If cause codes are the best way to conduct the search, so be it. If there are other ways to conduct the search, fine too. But the burden upon Starbucks to respond to the relevant categories herein is not so great to warrant denial of the information.