Judge: Kerry Bensinger, Case: 22STCV38787, Date: 2023-08-28 Tentative Ruling

Case Number: 22STCV38787    Hearing Date: August 28, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:      August 28, 2023                                            TRIAL DATE:  June 11, 2024

CASE:                         Bonne Lone Sanchez v. Shake Shack Inc., et al.

CASE NO.:                 22STCV38787

MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY

MOVING PARTY:               Plaintiff Bonne Lone Sanchez

RESPONDING PARTY:     Defendant Shake Shack Inc.

I.          BACKGROUND

On December 13, 2022, Plaintiff, Bonne Lone Sanchez, initiated this action against Defendants, Shake Shack Inc., Shake Shack California LLC, Shake Shack Enterprises, LLC, and SSE Holdings, LLC, for injuries arising from a slip and fall incident on Defendants’ premises.

On February 22, 2023, Defendant, Shake Shack California, LLC, served written discovery and noticed Plaintiff’s deposition for March 21, 2023. 

On February 28, 2023, Plaintiff propounded written discovery, including Requests for Production of Documents.  Plaintiff sought surveillance footage of the incident and the incident report, among other things, with her production requests.

Thereafter, Plaintiff’s deposition was re-noticed, and Defendant served their discovery responses on May 4, 2023.  However, Defendant objected to producing any documents, including the surveillance video and incident report.  Defendant eventually provided a copy of the incident report but conditioned producing the surveillance footage until after Plaintiff’s deposition.  Plaintiff’s counsel reiterated  that her client is entitled to the surveillance video prior to the deposition to refresh her collection.  The parties could not resolve the discovery dispute.

On July 31, 2023, Plaintiff filed this motion to compel Defendant to provide further responses to Requests for Production Nos. 7, 9, 10, 11, 12, 13, 41, 42, and 43.  These discovery requests concern surveillance footage of the incident.  Plaintiff does not seek sanctions.

Defendant has filed an Opposition.  Plaintiff has not filed a Reply.

II.        LEGAL STANDARDS FOR COMPELLING FURTHER RESPONSES

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.  

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.  (Code Civ. Proc., § 2031.310, subd. (c).)  The motion must also be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2031.310, subd. (b).)   

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345, subd. (a)(3).)¿¿ 

III.       DISCUSSION

A. Procedural Requirements

Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the demand for inspection.¿ (Code Civ. Proc., § 2031.290, subd. (c).)¿ Here, Defendant agreed to extend Plaintiff’s deadline to file this motion.  (See Declaration of Ani Aghaeian, ¶ 13.)  The motion is timely.  The motion is also accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2031.310, subd. (b).)   

Additionally, as is required by the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts for the County of Los Angeles, Central District, the parties have participated in an IDC prior to the hearing for this motion.   

In sum, the procedural requirements have been met. 

B.  Analysis

Plaintiff seeks further responses to Requests for Production Nos. 7, 9, 10, 11, 12, 13, 41, 42, and 43.  It is undisputed Plaintiff seeks production of surveillance footage of the incident in connection with these discovery requests.  As such, the Court considers these discovery requests altogether.

Defendant asserted objections to these discovery requests, arguing it is entitled to depose Plaintiff before producing the footage.   The issue presented here is whether Defendant may withhold the surveillance footage until after deposing Plaintiff.  In essence, Defendant;s objection is based upon so-called “deposition priority.”  Defendant argues CCP sections 2025.210(b), 2030.020(b), and 2031.020(b) shows the Legislature “envisions, supports and condones a discovery timeline by which a plaintiff is deposed prior to receiving discovery responses by defendant.”  Not so.  CCP section 2025.210(b), in particular, allows a defendant to notice a plaintiff’s deposition “at any time after that defendant has been served or has appeared in the action.”  Absent from this code provision is language equating the noticing of a plaintiff’s deposition and assuring priority.  Defendant fails to cite any authority squarely supporting their position.  As such, the Court finds Defendant’s objection to these discovery requests based on deposition priority is without merit.  This is especially so where Plaintiff provided responses to interrogatories prior to the deposition.  Fairness dictates that both parties be able to review the video surveillance prior to the deposition, not just the Defendant.  Defendant’s custody and control of the video does not entitle the Defendant to withhold the information.  Defendant has not presented authority to the contrary.  Plaintiff is entitled to a further response to Nos. 7, 9, 10, 11, 12, 13, 41, 42, and 43.

IV.       CONCLUSION

            The motion is granted.  Defendant Shake Shack California LLC is ordered to provide all responsive documents to Request for Production Nos. 7, 9, 10, 11, 12, 13, 41, 42, and 43 within 10 days of this order.

Moving party to give notice. 

Dated:   August 28, 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.