Judge: Michael E. Whitaker, Case: BC710370, Date: 2023-02-08 Tentative Ruling

Case Number: BC710370    Hearing Date: February 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

In the complaint filed on June 15, 2018, Plaintiff Danette Miller (“Plaintiff”) alleges that she was injured after slipping and falling on property owned by Defendant Northgate Gonzalez, LLC (“Defendant”).  (See Complaint, pp. 4-5.)   

Plaintiff  moves the Court for orders compelling Defendant to provide a further response to the following discovery request:

1. Fourth Notice of Deposition of Defendant’s Person Most Knowledgeable (“PMK”) – Request for Production No. 5

   1. Propounded:  April 20, 2022

   2. Objection to Requests for Production:  April 29, 2022

   3. PMK Depositions:

      1. Andrea Gonzalez – May 6, 2022

      2. Carlos Ocegueda – May 6, 2022

      3. Ronnie Alvarenga – May 6, 2022         

   4. Motion Filed:  December 30, 2022

       

      Defendant opposes the motion.  Plaintiff replies.    

       

      Procedural Requirements

       

                  Informal  Discovery Conference

       

                  Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 [Filed 09/20/2022], ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC).”   

       

                  Here, the parties complied with the Standing Order in scheduling and attending the IDC on February 1, 2023.   

       

                  Timeliness of Motion

       

                  “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.  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.  (Code Civ. Proc., § 2025.480, subds. (a)-(b); Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321, fn. 3 [The 60-day deadline is mandatory depriving a trial court of jurisdiction to hear belated motions to compel].) 

       

                  Defendant contends that Plaintiff’s motion is untimely because the records related to the depositions of Andrea Gonzalez, Carlos Ocegueda and Ronnie Alvarenga were completed on May 26, 2022, May 27, 2022 and August 25, 2022.  (See Declaration of Stephanie H. Hsieh, ¶¶ 4-6.)  Using the last date of the completion of the record concerning the PMK depositions, the Court finds that the last day for Plaintiff to move to compel under Section 2025.480 was October 24, 2022.  However, Plaintiff filed the motion on December 30, 2022, 67 days after the statutory deadline.

       

                  Plaintiff argues that the motion is timely because it is based upon the completion of the record related to the deposition of Jesus Gonzalez (“Gonzalez”).  Plaintiff contends that Gonzalez was produced by Defendant as a PMK in reference to the subject Fourth Notice of Deposition of Defendant’s Person Most Knowledgeable.  Gonzalez’s deposition was taken on September 20, 2022 and the transcript of Gonzalez’s deposition became available on October 5, 2022, with the transcript.  But according to Plaintiff, the record related to Gonzalez’s deposition was complete on November 4, 2022 under Code of Civil Procedure section 2025.520, triggering the 60-day time limit under Section 2025.480.

       

                  In opposition, Defendant claims that Gonzalez was not produced in response to the Fourth Notice of Deposition of Defendant’s Person Most Knowledgeable, and Gonzalez’s deposition was “taken pursuant to an entirely separate deposition notice.”  But Defendant does not advance the “deposition notice” which caused Gonzalez to appear for deposition. 

       

                  Nevertheless, the Court finds Defendant’s contention to be misplaced as Defendant confirmed that Gonzalez was appearing for his deposition as a percipient witness and Defendant’s “PMK re the subject incident.”  (See Declaration of Marine Khachoyan, Exhibit H.) 

       

                  Consequently, the Court finds Plaintiff’s motion timely. 

       

                  Meet and Confer

       

                  A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., §§ 2025.480, subd. (b).)  “A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., § 2016.040.) 

       

                  “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435 [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Id. at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1438.)

       

                  To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) Cal.App.4th 424, 433.)  In determining if parties have satisfied section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond counsel merely sending letters to each other stating each party’s respective positions.

       

                  Here, as set forth in the Declaration of Marine Khachoyan (“Khachoyan”), on May 22, 2022, Plaintiff sent a meet and confer correspondence regarding the documents to be produced at the PMK depositions.  (Declaration  of  Marine Khachoyan, ¶ 5, Exhibit G.)  Further Khachoyan declares that Defendant responded indicating that the Incident Report would not be produced.  (Ibid.) 

       

                  Apart from the statements set forth in paragraph 5, Khachoyan does not provide information pertaining to other efforts to meet and confer with Counsel for Defendant to informally resolve the subject discovery dispute, especially after Gonzalez’s deposition was taken on September 4, 2022 and the record was completed on November 4, 2022.  Moreover, although not statutorily required, the Court notes that Khachoyan did not file any supplemental declaration in support of the subject motion to further establish a good faith attempt to informally resolve the ongoing discovery dispute with Defendant.  In sum, apart from attending the IDC which is a separate prerequisite to the Court hearing the subject discovery motion per the 8^th Amended Standing Order, Plaintiff sent one email on May 22, 2022 to Defendant concerning the Incident Report, 4 months before Gonzalez’s deposition occurred – this is simply insufficient to meet a party’s obligations to meet and confer under the Discovery Act. 

       

                  Accordingly, the Court finds that Plaintiff has failed to meet and confer with Defendant in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion for the reasons stated.  The Court finds that Plaintiff’s purported meet and confer efforts in advance of filing the subject motion is woefully inadequate and certainly did not fulfill Plaintiff’s minimum obligations under the Discovery Act.  In other words, there was no serious effort at negotiations and informal resolution by Plaintiff.             

                 

      CONCLUSION AND ORDERS

       

                  Therefore, the Court denies Plaintiff’s motion to compel a further response to the Fourth Notice of Deposition of Defendant’s Person Most Knowledgeable (“PMK”) – Request for Production No. 5 based upon Plaintiff’s failure to comply with Code of Civil Procedure section 2025.480, subdivision (b).   

       

      Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.