Judge Melvin D. Sandvig, Case 19STCV33652 2023-01-12 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 19STCV33652, Date: 2023-01-12 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 19STCV33652 Hearing Date: January 12, 2023 Dept: F47

Dept. F47

Date: 1/12/23 (calendared for 1/10/23)

Case #19STCV33652

MOTION TO COMPEL FURTHER RESPONSES

(Requests for Admissions, Set 1)

Motion filed on 12/7/21.

MOVING PARTY: Cross-Defendant Hill Phoenix, Inc.

RESPONDING PARTY: Defendant/Cross-Complainant Costco Wholesale Corporation

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Complainant/Defendant Costco Wholesale Corporation (Costco) to provide further responses to Cross-Defendant Hill Phoenix, Inc.’s (Hill Phoenix) Requests for Admissions, Set 1, numbers 6, 7, 8, 12, 15, 16, 18 and 19. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $2,750.00.

RULING: The motion is granted. Further responses are due and sanctions are payable within 30 days.

This action arises out of a slip and fall incident that occurred on 6/18/18 at the Costco warehouse in Northridge, California. Plaintiff Maria E. Benitez Jaimes (Plaintiff) alleges that she slipped and fell on water on the floor of the “walk-in” fresh produce room at Defendant/Cross-Complainant Costco Wholesale Corporation’s (Costco) Northridge warehouse. As a result, Plaintiff sued Costco for negligence/premises liability. Costco claims that Cross-Defendant Hill Phoenix, Inc. (Hill Phoenix) manufactured, sold or installed the subject cooler at the Costco warehouse which Costco claims was the source of the water on which Plaintiff slipped. Costco has cross-complained against Hill Phoenix for: (1) Express Indemnity, (2) Implied Indemnity, (3) Contribution and (4) Declaratory Relief.

On 6/17/21, Hill Phoenix served Requests for Admissions, Set 1, on Costco. (Horwitz Decl., Ex.A). On 7/21/21, Costco served responses which Hill Phoenix found to be deficient. (Id., Ex.B). After meet and confer efforts, on 10/7/21,Costco served further responses which Hill Phoenix still found to be deficient in certain respects. (Id., Ex.E). After further meet and confer efforts the parties were unable to resolve this discovery dispute and Costco failed to respond to Hill Phoenix’s request for an extension of time to file and serve the instant motion. (Horwitz Decl.).

Therefore, on 12/7/21, Hill Phoenix filed and served the instant motion seeking an order compelling Costco to provide further responses to Hill Phoenix’s Requests for Admissions, Set 1, numbers 6, 7, 8, 12, 15, 16, 18 and 19. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $2,750.00. Costco opposed the motion. (NOTE: The motion was originally scheduled for hearing on 1/7/22 in Dept. 29. The hearing was continued multiple times while this action was pending in Dept. 29. Before any ruling on the merits was made, this action was transferred to Dept. F47 in Chatsworth and rescheduled for hearing on 1/12/23.).

All of the Requests for Admissions at issue concern the evidence, or lack thereof, that Costco has to support its claim of liability against Hill Phoenix.

CCP 2033.220 provides:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

A party propounding Requests for Admissions may move to compel further responses if it deems an answer to a request to be evasive or incomplete and/or an objection is without merit or too general. See CCP 2033.290(a). Such a motion must be made within 45 days of the service of the verified response or any supplemental verified response or a specific later date agreed upon in writing by the parties. See CCP 2033.290(c).

Costco cites no authority to support its position that the instant motion is moot, except for the issue of sanctions, because further responses were served on 2/22/22. (See Opposition, generally). Also, Costco’s claim that Hill Phoenix prematurely filed and served the instant motion is without merit. Even if Costco’s counsel believed no written response to Hill Phoenix’s counsel’s 11/17/21 email was necessary, the email concludes by stating that Hill Phoenix’s counsel would like to set up a time the next day to further meet and confer and requests confirmation such. (See Angelo Decl. ¶9, Ex.G). Attorney Angelo gives no indication that she responded to that request in the 11/17/21 email. (See Angelo Decl.). Additionally, Hill Phoenix’s counsel sent a follow-up email on 11/22/21 to which Costco’s counsel admittedly never responded before the motion was filed because it went to her “Junk Mail” folder; a result Hill Phoenix’s counsel would have no way of knowing. (See Opposition, p.6:12-p.7:2 Angelo Decl. ¶¶10-11). Attorney Angelo also should have been aware that a specific later date to file a motion to compel further responses must be agreed upon in writing, not an open-ended extension. See CCP 2033.290(c).

Further, Costco did not include a responsive separate statement with their opposition which explains why it believes the further responses served on 2/22/22 are sufficient. Costco also failed to bookmark the exhibits attached to the Angelo declaration submitted in support of the opposition forcing the Court to scroll back and forth through numerous pages to revisit each exhibit. (See 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil, “TECHNICAL REQUIREMENTS,” p.4:8-12); CRC 3.1110(f)(4). Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format and/or the imposition of sanctions.

Finally, the further responses served on 2/22/22 are still deficient. (See Angelo Decl., Ex.J). These responses include the prior unmeritorious objections and improperly include an additional objection which was waived as it was not timely included in the responses. The additional improper objection is also without merit as it is seemingly based on Costco’s own definition of the “SUBJECT COOLER.” The Requests for Admissions specifically state “SUBJECT COOLER is defined to be the same SUBJECT COOLER identified in Costco’s discover to Hill Phoenix.” (See Horwitz Decl., Ex.A, p.2, number 5). Also, these further responses improperly claim that the requests lack foundation because Costco is not alleging a product defect. However, Costco’s cross-complaint against Hill Phoenix specifically relies on a provision of a “Costco Wholesale Non-Resale Vendor Agreement” which provides in relevant part that Hill Phoenix would defend, hold harmless and indemnify Costco for all claims, etc. that arises out of “any actual or alleged death of or injury of any person, damages to any property, or any other damage or loss…claimed to result in whole or in part from any actual or alleged defect in such Equipment… .” (See Cross-Complaint ¶¶11-12 and Ex.A thereto). The foregoing is incorporated into all of the claims in the cross-complaint. (See Cross-Complaint ¶¶15, 18, 20). Based on Costco’s Motion For Leave to File First Amended Cross-Complaint (which was not initially filed until 7/12/22, more than 5 months after the second supplemental/further responses were served), it appears that Costco is changing its basis for its claim of liability against Phoenix Hill; however, this cannot be clearly discerned from the 2/22/22 further responses. If Costco is no longer basing its claims against Hill Phoenix on a product defect, it should clearly state such in further, verified discovery responses.

Hill Phoenix is entitled to an award of sanctions against Costco and its and its counsel of record, Murchison & Cumming, LLP, in the amount of $2,750.00 based on the reasonable time expended by counsel in relation to this motion at reasonable hourly rates (5 hours at $425/hour + 1 hour at $625/hour). See CCP 2033.290(d); (Horwitz Decl. ¶11).

Dept. F47

Date: 1/12/23 (calendared for 1/11/23)

Case #19STCV33652

MOTION TO COMPEL FURTHER RESPONSES

(Form Interrogatories, Set 1)

Motion filed on 12/7/21.

MOVING PARTY: Cross-Defendant Hill Phoenix, Inc.

RESPONDING PARTY: Defendant/Cross-Complainant Costco Wholesale Corporation

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Complainant/Defendant Costco Wholesale Corporation (Costco) to provide further responses to Cross-Defendant Hill Phoenix, Inc.’s (Hill Phoenix) Form Interrogatories, Set 1, number 17.1. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $1,162.50.

RULING: The motion is granted. Further responses are due and sanctions are payable within 30 days.

On 6/17/21, Hill Phoenix served Form Interrogatories, Set 1, on Costco. (Horwitz Decl., Ex.A). On 7/21/21, Costco served responses which Hill Phoenix found to be deficient. (Id., Ex.B). After meet and confer efforts, on 10/7/21, Costco served further responses which Hill Phoenix still found to be deficient with regard to Form Interrogatory 17.1. (Id., Ex.E). After further meet and confer efforts the parties were unable to resolve this discovery dispute and Costco failed to respond to Hill Phoenix’s request for an extension of time to file and serve the instant motion. (Horwitz Decl.).

Therefore, on 12/7/21, Hill Phoenix filed and served the instant motion seeking an order compelling Costco to provide further responses to Hill Phoenix’s Form Interrogatories, Set 1, number 17.1. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $1,162.50. Costco filed two different oppositions to the motion. (NOTE: The motion was originally scheduled for hearing on 5/3/22 in Dept. 29. The hearing was continued multiple times while this action was pending in Dept. 29. Before any ruling on the merits was made, this action was transferred to Dept. F47 in Chatsworth and rescheduled for hearing on 1/12/23.).

A party’s responses to interrogatories must be as complete and straightforward as the information reasonably available to the responding party permits. CCP 2030.220(a). If the party propounding interrogatories finds responses to be evasive or incomplete or an objection to be without merit or too general, or the option to product documents unwarranted or insufficient, the propounding party may move to compel a further response. CCP 2030.300(a). Such a motion must be made within 45 days of the service of the verified response or any supplemental verified response or a specific later date agreed upon in writing by the parties. See CCP 2030.300(c).

Costco cites no authority to support its position that the instant motion is moot, except for the issue of sanctions, because further responses were served on 2/22/22. (See Opposition, generally). Also, Costco’s claim that Hill Phoenix prematurely filed and served the instant motion is without merit. Even if Costco’s counsel believed no written response to Hill Phoenix’s counsel’s 11/17/21 email was necessary, the email concludes by stating that Hill Phoenix’s counsel would like to set up a time the next day to further meet and confer and requests confirmation such. (See Angelo Decl. ¶9, Ex.G). Attorney Angelo gives no indication that she responded to that request in the 11/17/21 email. (See Angelo Decl.). Additionally, Hill Phoenix’s counsel sent a follow-up email on 11/22/21 to which Costco’s counsel admittedly never responded before the motion was filed because it went to her “Junk Mail” folder; a result Hill Phoenix’s counsel would have no way of knowing before filing the motion. (See Opposition, p.6:13-p.7:2; Angelo Decl. ¶¶10-11). Attorney Angelo also should have been aware that a specific later date to file a motion to compel further responses must be agreed upon in writing, not an open-ended extension. See CCP 2030.300(c).

Further, Costco did not include a responsive separate statement with either of their oppositions which explain why it believes the further responses served on 2/22/22 are sufficient. Costco also failed to bookmark the exhibits attached to the Angelo declaration submitted in support of the opposition forcing the Court to scroll back and forth through numerous pages to revisit each exhibit. (See 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil, “TECHNICAL REQUIREMENTS,” p.4:8-12); CRC 3.1110(f)(4). Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format and/or the imposition of sanctions.

Finally, the further responses served on 2/22/22 are still deficient. (See Angelo Decl., Ex.J). These responses include the prior unmeritorious objections and improperly include additional objections which were waived as they were not timely included in the responses. Additionally, Costco included an additional improper objection based on its own definition of the “SUBJECT COOLER.” Also, these further responses improperly claim that the questions lack foundation because Costco is not alleging a product defect. However, Costco’s cross-complaint against Hill Phoenix specifically relies on a provision of a “Costco Wholesale Non-Resale Vendor Agreement” which provides in relevant part that Hill Phoenix would defend, hold harmless and indemnify Costco for all claims, etc. that arises out of “any actual or alleged death of or injury of any person, damages to any property, or any other damage or loss…claimed to result in whole or in part from any actual or alleged defect in such Equipment… .” (See Cross-Complaint ¶¶11-12 and Ex.A thereto). The foregoing is incorporated into all of the claims in the cross-complaint. (See Cross-Complaint ¶¶15, 18, 20). Based on Costco’s Motion For Leave to File First Amended Cross-Complaint (which was not initially filed until 7/12/22, more than 5 months after the second supplemental/further responses were served), it appears that Costco is changing its basis for its claim of liability against Phoenix Hill; however, this cannot be clearly discerned from the 2/22/22 further responses. If Costco is no longer basing its claims against Hill Phoenix on a product defect, it should clearly state such in further, verified discovery responses.

Hill Phoenix is entitled to an award of sanctions against Costco and its counsel of record, Murchison & Cumming, LLP. Hill Phoenix originally requested sanctions in the sum of $1,162.50 in connection with this motion. However, Hill Phoenix expended additional attorneys’ fees in preparing and filing its reply brief. Therefore, the Court finds that the increased amount of $2,237.50 requested in Hill Phoenix’s reply brief filed in relation to Costco’s first opposition to the motion is warranted based on the reasonable time expended by counsel in relation to this motion at reasonable hourly rates (3 hours at $425/hour + ½ hour at $625/hour + 1 hour at $650/hour. See CCP 2030.300(d); (Horwitz Decl. ¶11; 4/26/22 Murphy Decl. ¶4 - attached as part of Ex.B to the Notice of Previous Filing of Consolidated Reply filed on 12/29/22).

Dept. F47

Date: 1/12/23

Case #19STCV33652

MOTION TO COMPEL FURTHER RESPONSES

(Requests for Production of Documents, Set 1)

Motion filed on 12/7/21.

MOVING PARTY: Cross-Defendant Hill Phoenix, Inc.

RESPONDING PARTY: Defendant/Cross-Complainant Costco Wholesale Corporation

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Complainant/Defendant Costco Wholesale Corporation (Costco) to provide further responses to Cross-Defendant Hill Phoenix, Inc.’s (Hill Phoenix) Requests for Production of Documents, Set 1, numbers 1, 2, 3, 6, 7, 8, 12 and 14. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $2,750.00.

RULING: The motion is granted. Further responses are due and sanctions are payable within 30 days.

On 8/20/21, Hill Phoenix served Requests for Production of Documents, Set 1, on Costco. (Horwitz Decl., Ex.A). After being granted an extension of time to respond, on 10/6/21, Costco served responses which Hill Phoenix found to be deficient. (Id., Ex.B; See also Ex.J). After meet and confer efforts failed to resolve this dispute, Costco granted Hill Phoenix a 2-week extension to file a motion to compel further responses making the motion due 12/7/21. (Id., Ex.F, G). Thereafter, Costco failed to respond to further meet and confer efforts. (Id., Ex.H, I).

Therefore, on 12/7/21, Hill Phoenix filed and served the instant motion seeking an order compelling Costco to provide further responses to Hill Phoenix’s Requests for Production of Documents, Set 1, numbers 1, 2, 3, 6, 7, 8, 12 and 14. Additionally, Hill Phoenix requests sanctions against Costco and its counsel of record, Murchison & Cumming, LLP, in the amount of $2,750.00. Costco opposed the motion. (NOTE: The motion was originally scheduled for hearing on 1/7/22 in Dept. 29. The hearing was continued multiple times while this action was pending in Dept. 29. Before any ruling on the merits was made, this action was transferred to Dept. F47 in Chatsworth and rescheduled for hearing on 1/12/23.).

On receipt of responses to demands/requests for production of documents, the propounding party may move for an order compelling further responses if the propounding party deems an objection in the response is without merit or too general. See CCP 2031.310(a)(3). Such a motion must be made within 45 days of the service of the verified response or any supplemental verified response or a specific later date agreed upon in writing by the parties. See CCP 2031.310(c).

Costco cites no authority to support its position that the instant motion is moot, except for the issue of sanctions, because further responses were served on 2/17/22. (See Opposition, generally). Also, Costco’s claim that Hill Phoenix prematurely filed and served the instant motion is without merit. Even if Costco’s counsel believed no written response to Hill Phoenix’s counsel’s 11/17/21 email was necessary, the email concludes by stating that Hill Phoenix’s counsel would like to set up a time the next day to further meet and confer and requests confirmation such. (See Angelo Decl. ¶6, Ex.E). Attorney Angelo gives no indication that she responded to that request in the 11/17/21 email. (See Angelo Decl.). Additionally, Hill Phoenix’s counsel sent a follow-up email on 11/22/21 to which Costco’s counsel admittedly never responded before the motion was filed because it went to her “Junk Mail” folder; a result Hill Phoenix’s counsel would have no way of knowing. (See Opposition, p.6:5-17; Angelo Decl. ¶8). Attorney Angelo also should have been aware that a specific later date to file a motion to compel further responses must be agreed upon in writing, not an open-ended extension. See CCP 2031.310(c).

Further, Costco did not include a responsive separate statement with their opposition which explains why it believes the further responses served on 2/17/22 are sufficient. Costco also failed to bookmark the exhibits attached to the Angelo declaration submitted in support of the opposition forcing the Court to scroll back and forth through numerous pages to revisit each exhibit. (See 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil, “TECHNICAL REQUIREMENTS,” p.4:8-12); CRC 3.1110(f)(4). Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format and/or the imposition of sanctions.

Finally, the further responses served on 2/17/22 are still deficient. (See Angelo Decl., Ex.H). The subject requests seek documents related to the alleged slip and fall at issue in this action (Request 1: incident reports; Request 6: audit sheets; Request 12: floor walk sheets; Request 14: communications regarding the slip and fall incident) and Costco’s history of slip and fall accidents at the same store starting one year before the incident in this action (Requests 2-3: incident reports covering one year before through one year after the alleged incident; Requests 7-8: slip and fall claims and lawsuits asserted against Costco for the same store staring one year before the alleged incident to date). Such documents are relevant to the issues in this case.

The further responses include the prior unmeritorious objections. As such, it cannot be determined whether any documents are being withheld based on such meritless objections. Costco has also failed to adequately explain why it cannot comply Request 14. Costco has failed to adequately indicate whether its inability to comply with this request is because the item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession custody, or control of the responding party. See CCP 2031.230

Dept. F47

Date: 1/12/23

Case #19STCV33652

MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

Motion filed on 11/16/22.

MOVING PARTY: Defendant/Cross-Complainant Costco Wholesale Corporation

RESPONDING PARTY: Cross-Defendant Hill Phoenix, Inc.

NOTICE: ok

RELIEF REQUESTED: An order granting Cross-Complainant Costco Wholesale Corporation leave to file a First Amended Cross-Complaint.

RULING: The motion is granted.

This action arises out of a slip and fall incident that occurred on 6/18/18 at the Costco warehouse in Northridge, California. Plaintiff Maria E. Benitez Jaimes (Plaintiff) alleges that she slipped and fell on water on the floor of the “walk-in” fresh produce room at Defendant/Cross-Complainant Costco Wholesale Corporation’s (Costco) Northridge warehouse. As a result, Plaintiff sued Costco for negligence/premises liability. In its cross-complaint, Costco claims that Cross-Defendant Hill Phoenix, Inc. (Hill Phoenix) manufactured, sold or installed the subject cooler at the Costco warehouse which Costco claims was the source of the water on which Plaintiff slipped. Therefore, on 9/23/20, Costco filed its cross-complaint against Hill Phoenix for: (1) Express Indemnity, (2) Implied Indemnity, (3) Contribution and (4) Declaratory Relief.

On 7/12/22, Costco filed its initial motion for leave to amend its cross-complaint which was scheduled for hearing on 1/27/23 when this case was pending in Dept. 29. After this case was transferred to this department, on 11/16/22, Costco filed the subject new/amended motion which also seeks an order granting Costco leave to file a First Amended Cross-Complaint. Hill Phoenix has opposed the motion.

The Court finds that Costco has sufficiently complied with the requirements of CRC 3.1324 in filing the instant motion. In the notice of motion, Costco sets forth by page, paragraph and line number the proposed changes from its original to the proposed First Amended Cross-Complaint. See CRC 3.1324(a)(2), (3). Additionally, Costco has attached a copy of the proposed First Amended Cross-Complaint. CRC 3.1324(a)(1). The declaration of attorney Angelo filed in support of the motion is vague as to exactly when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier. CRC 3.1324(b)(3), (4). The reply indicates that Costco became aware of the need for the amendment in February of 2022. (See Reply, p.8:7-14; Angelo Decl. ¶2). Costco fails to explain why it waited until July (another five months) to file its initial motion for leave to amend its cross-complaint. Additionally, Costco’s attempt to blame Hill Phoenix for its failure to discover the “Refrigeration Maintenance Services Agreement” is without merit. (See Reply, p.9:21-26). Costco was a party to such agreement which is printed on Costco letter head. (See proposed First Amended Cross-Complaint, Ex.B). As such, Costco should have provided the agreement to its counsel when it first decided to cross-complain against Hill Phoenix.

Despite the delay by Costco in filing the motion, given the fact that no trial date is set, the liberal policy of allowing leave to amend and the judicial economy of having all related claims set forth in one action, the motion is granted.

Hill Phoenix’s request that the granting of the motion be conditioned on it being allowed to file a motion for attorneys’ fees is denied.

Costco is ordered to separately file its First Amended Cross-Complaint today (1/12/23).