Judge: Lisa R. Jaskol, Case: 21STCV28720, Date: 2023-08-03 Tentative Ruling
Case Number: 21STCV28720 Hearing Date: March 12, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On August 4, 2021, Plaintiff Oliver Pozo (“Plaintiff”) filed this action against Defendants Stater Bros. Markets (“Stater”), John Doe, and Does 1-10 for assault, battery, negligence, negligent hiring, training and supervision, intentional infliction of emotional distress, and negligent infliction of emotional distress.
On January 4, 2022, Stater filed an answer and a cross-complaint against Cross-Defendant Maplebear Inc. dba Instacart (“Instacart”) and Roes 1-10 for breach of contract, breach of covenant of implied good faith and fair dealing, equitable indemnity, contribution, and declaratory relief.
On August 12, 2022, the Court sustained Instacart’s demurrer to Stater’s cross-complaint with leave to amend.
On September 9, 2022, Stater filed a first amended cross-complaint. On October 24, 2022, Instacart filed an answer.
On March 2, 2023, Plaintiff filed a first amended complaint.
On November 22, 2023, the Court dismissed Stater’s cross-complaint without prejudice at Stater’s request.
On January 12, 2024, Plaintiff filed a motion to compel Stater’s witness Liyen Alvarez to answer questions at a future deposition and for sanctions, to be heard on March 12, 2024. On February 28, 2024, Stater filed an opposition and request for sanctions. On March 5, 2024, Plaintiff filed a reply.
On January 22, 2024, the Court granted Plaintiff’s motion to reopen discovery. The Court ruled that discovery and related dates would be based on the April 9, 2024 trial date.
Trial is currently scheduled for April 9, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court for an order compelling the deposition of Stater’s witness Liyen Alvarez (“Alvarez”) or striking Alverez’s declaration from Stater’s summary judgment motion. Plaintiff also asks the Court to impose sanctions on Stater.
Stater asks the Court to deny the motion and impose sanctions on Plaintiff.
LEGAL STANDARD
Code of Civil Procedure section 2025.480 provides in part:
“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
“(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
* * *
(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.
(j) 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 to compel an answer or production, 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., § 2025.480, subds. (a), (b), (c), (h), (i), (j).)
DISCUSSION
On November 2, 2023, Alvarez appeared for her deposition. Stater’s counsel instructed Alvarez not to answer several of Plaintiff’s counsel’s questions based on assertions of privilege. Plaintiff now moves to compel Alvarez’s answers to these questions, arguing they do not call for privileged information. In the alternative, Plaintiff asks the Court to strike Alvarez’s declaration from Stater’s motion for summary judgment.
Plaintiff argues that Alvarez, on counsel's instruction, refused to answer questions at her deposition about Stater's policies and procedures even though she discussed Stater’s policies and procedures in her declaration supporting Stater's summary judgment motion.
Plaintiff has provided excerpts from Alvarez’s deposition showing that Alvarez, in response to Stater’s counsel’s instruction, refused to answer questions about the following issues:
· Stater’s policy regarding repairs
· Stater’s policy regarding security
· Stater’s policy, if any, to “to stop people not
intending to buy groceries from using the restroom at the Stater Bros. Market”
· whether Alvarez allows homeless people to use Stater’s
restrooms
· whether Alvarez has a policy and procedure to make incident reports at the store
In her declaration submitted in support of Stater’s summary judgment motion, however, Alvarez stated:
· “I have been a Store Manager since approximately 2019
and am familiar with [Stater’s] policies and procedures for safety and security
in the store.” (Alvarez
Dec. ¶ 2.)
· “I reported the incident to [Stater] security personnel
as per [Stater] protocol.” (Alvarez Dec. ¶
9.)
· “[Stater] has policies and procedures in place for
dealing with safety and security issues.
I am familiar with, and have received training in, those policies and
procedures. Furthermore as Store
Manager, I have had the obligation to see to it that all store employees
receive training in the safety and security protocols in place at [Stater]. I have done my best to ensure that all employees
are properly trained, and familiar with all [Stater] policies and procedures. I do my very best to ensure that all [Stater]
policies and procedures are adhered to at all times.” (Alvarez Dec. ¶ 12.)
· “On the day that [Plaintiff] was injured, appropriate safety and security measure[s] were not only in place, but were followed by me, and by all of the [Stater] employees who were working.” (Alvarez Dec. ¶ 10.)
Stater opposes Plaintiff’s motion, arguing Alvarez was not being deposed as a person most knowledgeable and therefore Plaintiff’s questions about Stater’s policies and procedures were not appropriate. Stater “made it clear that [Alvarez] was being deposed as a percipient witness and could only testify regarding her knowledge of facts of the incident.” (Opposition p. 4.) According to Slater, Plaintiff was “attempting to conduct a PMK deposition of a store manager without noticing the deposition as a PMK deposition because he knew he failed to appear and proceed with [a previously scheduled] PMK deposition.” (Opposition p. 6.)
Stater
has provided no authority to support its contention that a party may not examine
an opposing party’s employee at a deposition about the opposing party’s
policies and procedures unless the employee has been designated as the opposing
party’s person most qualified. Here, Alvarez’s
declaration supporting Stater’s motion for summary judgment asserts that
Alvarez is familiar with and has received training on Stater’s policies and
procedures for dealing with safety and security in the store. (Alvarez Dec. ¶¶ 2, 12.) As a
result, Stater waived any objection to questions about these issues and its
counsel improperly instructed Alvarez not to answer at her deposition.
Stater also argues that Plaintiff’s meet and confer efforts were inadequate. Plaintiff’s counsel sent Stater’s counsel a detailed meet-and-confer letter explaining why Plaintiff’s counsel believed that Stater’s counsel improperly instructed Alvarez not to answer questions at her deposition. Plaintiff satisfied his meet and confer obligation. The Court grants the motion.
Sanctions are mandatory because Stater unsuccessfully opposed Plaintiff’s motion to compel under Code of Civil Procedure section 2025.480 and the Court does not find Stater acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.480, subd. (j).)
Plaintiff requests $3,060.00 in sanctions based on ten hours of attorney’s time at a rate of $300.00 per hour and one $60.00 filing fee. Counsel spent five hours meeting, conferring, and drafting the motion, two hours drafting a reply, and anticipated spending three hours to appear at the hearing.
The Court grants sanctions of $1,060.00 based on four hours of attorney’s time at a reasonable rate of $250.00 per hour and one filing fee.
CONCLUSION
The Court GRANTS Plaintiff Oliver Pozo’s motion to compel Defendant Stater Bros. Markets’s witness Liyen Alvarez to answer questions at a future deposition. The Court orders Defendant Stater Bros. Markets to produce Liyen Alvarez for a deposition within 15 days of the hearing on the motion. At the deposition, Liyen Alvarez will answer the questions to which counsel previously objected.
The Court orders Defendant Stater Bros. Markets and its counsel to pay Plaintiff Oliver Pozo $1,060.00 in sanctions by April 12, 2024.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.