Judge: Michael E. Whitaker, Case: BC713113, Date: 2022-08-02 Tentative Ruling

Case Number: BC713113    Hearing Date: August 2, 2022    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 or adopt the tentative ruling as the order of the Court.  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. 

NOTE:  2 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

            Plaintiff Jenifer Galvez sued defendants Dennis Davenport (“Davenport”) and Costco Wholesale Corporation (“Costco”) (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained in a slip and fall on a sidewalk near the entrance of a retail warehouse owned and controlled by Costco.  Davenport is the store manager for the subject warehouse. 

            Plaintiff moves to compel Davenport’s appearance for deposition.  Davenport has not filed an opposition to the motion. 

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony.  (Code Civ. Proc., § 2025.450, subd. (a).) 

Here, on February 4, 2022, Plaintiff served the subject fifth amended deposition notice on Defendants, noticing Davenport’s deposition for February 18, 2022.  Defendants served their objection to the notice on February 14, 2022, citing the unavailability of Defendants and their counsel.  Davenport did not appear for deposition on that date.  As of the date of filing of this motion, Davenport has not appeared for deposition nor have Defendants provided alternative dates for his deposition.  

Plaintiff seeks monetary, evidentiary, and issue sanctions in connection with the motion.  The Court finds Plaintiff’s requests for sanctions to be procedurally defective, however, because Plaintiff failed to include any such request for sanctions in her notice of motion, as required.  (See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110, subd. (a).]  The Court therefore denies Plaintiff’s requests for sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to compel Davenport’s appearance for deposition per Code of Civil Procedure section 2025.450, and orders Davenport to appear for deposition within 30 days of notice of the Court’s orders, unless Plaintiff stipulates otherwise.

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

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 or adopt the tentative ruling as the order of the Court.  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 -NO. 2

MOTION

            Plaintiff Jenifer Galvez sued defendants Dennis Davenport (“Davenport”) and Costco Wholesale Corporation (“Costco”) (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained in a slip and fall on a sidewalk near the entrance of a retail warehouse owned and controlled by Costco.  Davenport is the store manager for the subject warehouse. 

            Plaintiff moves to compel responses from Davenport to Supplemental Interrogatory, set one (“Supp. ROG”). Plaintiff seeks monetary sanctions.  Davenport has not filed an opposition to the motion.

ANALYSIS

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product under Chapter 4 (commencing with Section 2018.010.  . . .   [and] The party propounding the interrogatories may move for an order compelling response to the interrogatories.”  (Code Civ. Proc., § 2030.290, subds. (a)-(b).)  

Here, Plaintiff served the subject discovery request on Davenport on November 18, 2021, electronically.  Davenport’s responses were thus due by December 21, 2021.  As of the filing date of the motion, Plaintiff has not received responses from Davenport.  Accordingly, the Court finds Davenport has failed to serve timely responses to the Supp. ROG.

Plaintiff seeks monetary sanctions in connection with the motion.  The Court finds Plaintiff’s request for sanctions to be procedurally defective, however, because Plaintiff failed to include any such request for sanctions in her notice of motion, as required.  (Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom sanction is sought, and specify the type of sanction sought”]; see also Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110, subd. (a).)  The Court therefore denies Plaintiff’s request for sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to compel Davenport’s responses to the Supp. ROG per Code of Civil Procedure section 2030.290, and orders Davenport to serve verified responses to the Supp. ROG, without objections, within 30 days of notice of the Court’s orders. 

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