Judge: Lisa R. Jaskol, Case: 22STCV03228, Date: 2023-12-21 Tentative Ruling
Case Number: 22STCV03228 Hearing Date: January 24, 2024 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On January 26, 2022, Plaintiff Rina Ester Tolentino (“Plaintiff”) filed this action against Defendants Vallarta Food Enterprises, Inc. (“Defendant”) and Does 1-30 for general negligence and premises liability.
On April 27, 2022, Defendant filed an answer.
On June 29, 2022, Plaintiff filed a first amended complaint.
On July 18, 2022, Defendant filed an answer.
On October 2, 2023, Plaintiff filed motions to compel second sessions of the depositions of Defendant’s employees Reyna Sillas (“Sillas”) and Mariela Reyes (“Reyes”), to be heard on October 27, 2023. The Court continued the hearings to January 24, 2024. On December 6, 2023, Defendant filed oppositions.
Trial is currently scheduled for April 10, 2024.
PARTIES’ REQUESTS
Plaintiff requests that the Court compel Defendant’s employees Sillas and Reyes to appear for second depositions and for Defendant to provide the documents requested in the deposition notices. Plaintiff also requests that the Court impose sanctions on Defendant.
Defendant requests that the Court deny the motions 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).)
Code of Civil Procedure section 2025.610 provides in part:
“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.
“(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken. . . .”
(Code Civ. Proc., § 2025.610, subds. (a), (b).)
DISCUSSION
A. Motion to compel Sillas’s second deposition
On January 27, 2023, Plaintiff served a deposition notice on Defendant for the deposition of Defendant’s employee Sillas and for production of documents. Defendant served objections to the request for production of documents. Plaintiff sent Defendant a meet and confer letter but Defendant did not respond.
On February 27, 2023, Plaintiff deposed Sillas. Plaintiff asserts that Defendant did not produce the incident report that Defendant’s employee Cesia Ribera prepared after Plaintiff’s alleged fall in Defendant’s store. According to Plaintiff, Defendant’s failure to produce the incident report prevented Plaintiff from conducting a meaningful deposition because the report would have refreshed Sillas’s memory of the incident.
The Court finds that Plaintiff did not request the incident report that Cesia prepared after the incident. Plaintiff’s deposition notice requested “Any and all DOCUMENTS, records, memoranda or writings germane to the INSPECTIONS of the SUBJECT PREMISES after the INCIDENT.” (Request no. 1.) Plaintiff defined “INSPECTION(S)” to mean “the act of viewing, examining, checking, and/or testing a certain item, thing, and/or article against certain established standards for the purpose of determining whether or not that certain item, thing, and/or article’s state at the time the inspection is made conforms to those established standards.” The request cannot reasonably be read to include the incident report which Cesia prepared after the incident. Therefore, Defendant was not required to produce the incident report.
The Court denies Plaintiff’s request to order a second session of Sillas’s deposition.
Defendant requests sanctions of $1,680.00 based on 9 hours of attorney time at a billing rate of $180.00 per hour and one $60.00 filing fee. Counsel spent two hours meeting and conferring on this motion, two hours preparing for and attending the Informal Discovery Conference, four hours preparing the opposition papers, and one hour to appear at the hearing.
The Court grants Defendant sanctions of $600.00 based on three hours of attorney time and one filing fee.
B. Motion to compel Reyes’s second deposition
On January 27, 2023, Plaintiff served a deposition notice on Defendant for the deposition of Defendant’s employee Reyes and for production of documents. Defendant served objections to the request for production of documents. Plaintiff sent Defendant a meet and confer letter but Defendant did not respond.
On February 28, 2023, Plaintiff deposed Reyes. Plaintiff asserts that Defendant did not produce the incident report that Defendant’s employee Cesia Ribera prepared after Plaintiff’s alleged fall in Defendant’s store. According to Plaintiff, Defendant’s failure to produce the incident report prevented Plaintiff from conducting a meaningful deposition because the report would have refreshed Reyes’s memory of the incident.
The Court finds that Plaintiff did not request the incident report that Cesia prepared after the incident. Plaintiff’s deposition notice requested “Any and all DOCUMENTS, records, memoranda or writings germane to the INSPECTIONS of the SUBJECT PREMISES after the INCIDENT.” (Request no. 1.) Plaintiff defined “INSPECTION(S)” to mean “the act of viewing, examining, checking, and/or testing a certain item, thing, and/or article against certain established standards for the purpose of determining whether or not that certain item, thing, and/or article’s state at the time the inspection is made conforms to those established standards.” The request cannot reasonably be read to include the incident report which Cesia prepared after the incident. Therefore, Defendant was not required to produce the incident report.
The Court denies Plaintiff’s request to order a second session of Reyes’s deposition.
Defendant requests sanctions of $1,680.00 based on 9 hours of attorney time at a billing rate of $180.00 per hour and one $60.00 filing fee. Counsel spent two hours meeting and conferring on this motion, two hours preparing for and attending the Informal Discovery Conference, four hours preparing the opposition papers, and one hour to appear at the hearing.
The Court grants Defendant sanctions of $600.00 based on three hours of attorney time and one filing fee.
CONCLUSION
The Court DENIES Plaintiff Rina Ester Tolentino’s motion to compel a second deposition of Defendant Vallarta Food Enterprises, Inc.’s employee Reyna Sillas.
The Court DENIES Plaintiff Rina Ester Tolentino’s motion to compel a second deposition of Defendant Vallarta Food Enterprises, Inc.’s employee Mariela Reyes.
The Court DENIES Plaintiff Rina Ester Tolentino’s requests for sanctions.
The Court GRANTS Defendant Vallarta Food Enterprises, Inc.’s requests for sanctions and orders Plaintiff Rina Ester Tolentino and her counsel to pay Defendant Vallarta Food Enterprises, Inc. $1,200.00 ($600.00 for each motion) by February 23, 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.