Judge Michael Shultz, Case Number: 22CMCV00625, Date: 2024-06-25 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.

TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/ui/main.aspx?casetype=civil

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF VICENTE CARDENAS; REQUEST FOR SANCTIONS

[TENTATIVE] ORDER DENYING DENYING PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF ALEXANDRA LOPEZ; REQUEST FOR SANCTIONS

The complaint alleges claims for premises liability and negligence arising from an incident in Defendant’s store wherein Plaintiff was injured after slipping on a disinfectant wipe.

As the issues in both motions are identical, this ruling applies to both motions.

Plaintiff requests an order compelling two non-party witnesses to appear for deposition. Defendant, Ross Dress for Less, Inc. (“Ross”), employed Vicente Cardenas (“Cardenas”) and Alexandra Lopez (“Lopez”), a Front End Supervisor, both of whom were present at the time of the incident. Plaintiff served notice of the Cardenas deposition on November 29, 2023, but Defendant continued the date numerous times until April 28, 2024, when the parties agreed to schedule the deposition for May 8, 2024, however, the witness no longer agreed to appear.

Plaintiff served a deposition notice on defense counsel for the deposition of Lopez, scheduled for March 20, 2024. (Boris decl., Ex. 7.) Defense counsel objected to the deposition notice and indicated that Ms. Lopez was no longer employed at Ross. (Opp. Diehl Decl., ¶ 7.)

In opposition, Defendant argues that neither Cardenas nor Lopez are employed by Defendant. Instead of serving the witnesses with a subpoena, Plaintiff filed these motions. Defendant previously attempted to coordinate depositions of the former employees, but was not successful.

In reply, Plaintiff argues that Plaintiff’s counsel trusted that Defendant would produce the witnesses over the parties’ numerous attempts to meet and confer, however, Defendant did not produce either witness. Defendant should pay the costs of taking the non-appearance.

If a party fails to appear for a deposition after service of a deposition notice, without having served a valid objection, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the notice. (Code Civ. Proc., § 2025.450.) The moving party must show good cause for the deposition and attempt to meet and confer. (Id.)

Plaintiff served a deposition notice on defense counsel for the deposition of Cardenas, set to take place on May 8, 2024. (Cardenas Mot. Ex. 12.) Plaintiff served a deposition notice on Defendant for Lopez’s declaration scheduled for March 20, 2024 (Lopez Mot. Ex. 7.)

Service of a deposition notice is effective to require any deponent who is a party to the action “or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying." (Code Civ. Proc., § 2025.280 subd.(b).) The attendance and testimony of any other deponent, including for production of documents requires service of a deposition subpoena on the witness. (Code Civ. Proc., § 2025.280 subd. (c).)

Defendant was unable to produce Cardenas or Lopez, both former employees, despite counsel’s attempt to coordinate it. (Cathy M. Diehl decl., ¶¶ 4-5, 12.) Defendant’s objection to the deposition notices informing that Cardenas and Lopez left Ross’ employment is meritorious. (Cardenas Opp., Diehl Decl., Ex. A.; Lopez Opp., Diehl Decl., Ex. A.)

Accordingly, Plaintiff’s remedy is to serve the non-party witnesses with a subpoena, as there is no procedure for the court to compel a non-party witness’s appearance without a properly served subpoena.

Based on the foregoing, Plaintiff’s motions to compel the depositions of Vicente Cardenas and Alexandra Lopez are DENIED, including Plaintiff’s request for imposition of sanctions.

[TENTATIVE] ORDER PLAINTIFF’S MOTION TO COMPEL DEFENDANT‘S FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET TWO; REQUEST FOR SANCTIONS

[TENTATIVE] ORDER PLAINTIFF’S MOTION TO COMPEL DEFENDANT‘S RESPONSES TO SUPPLEMENTAL INTERROGATORY; REQUEST FOR SANCTIONS

[TENTATIVE] ORDER PLAINTIFF’S MOTION TO COMPEL DEFENDANT‘S RESPONSES TO SUPPLEMENTAL REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

Plaintiff requests an order to compel Defendant’s responses to written discovery. Plaintiff argues that despite reasonable attempts to meet and confer, Defendant provided unverified responses to the second set of special interrogatories (“SI2”) and did not provide verified responses at all to the supplemental interrogatory or supplemental document request, (collectively, “supplemental discovery”) despite extensions of time to respond.

In opposition, Defendant acknowledges that the responses to SI2 were not verified. Defendant reserved its objections initially, which do not require verification. However, on June 13, 2024, Defendant served verified further responses to SI2. With respect to the supplemental discovery, Defendant served verified responses on June 13, 2024. Defendant reserved its objections initially, which do not require verification.

In reply, Plaintiff argues that the oppositions are untimely filed on June 13, 2024, when it should have been filed and served on June 11, 2024. Defendant does not explain the delay in providing verified responses until after Plaintiff was required to file these motions.

The Court has considered Defendant’s oppositions filed on June 13, 2024. although they were due on June 11, 2024, (nine court days before the hearing). (Code Civ. Proc., § 1005.) The Court has discretion to consider late papers in favor of the strong policy favoring disposition of the case on the merits. (Kapitanski v. Von’s (1983) 146 Cal.App.3d 29, 32, [“Judges are well aware of the unnecessary burdens placed on courts and counsel when strict compliance with local procedural rules results in the expenditure of unnecessary time and money for the preparation of later section 473 motions.”].) Plaintiff has not shown any prejudice arising from the late filing. (Id.) The Court has considered Plaintiff’s reply.

Defendant served objections to SI2, on April 23, 2024. (Opp. Ex. A.) Defendant refused to provide contact information for any of the witnesses identified in response to form interrogatories on grounds of privacy. Defendant then served verified further responses on June 13, 2024, at the same time as their oppositions. (Opp, Ex. A).

A party, or one of its agents, responding to interrogatories must sign the response under oath “unless the response contains only objections.” (Code Civ. Proc., § 2030.250 subd. (a).) Accordingly, initial objection-only responses did not require verification. Notwithstanding, Defendant provided substantive information in response to SI 66-67, without a verification from Ross.

Moreover, objections must be valid. Defendant chiefly objects to providing contact information for witnesses, but fails to substantiate the contention that a witness’s contact information falls outside the scope of permissible discovery. Defendant contends only that Plaintiff’s motions are moot given Defendant’s further responses served at the same time as its opposition. The motions are not rendered moot as Plaintiff is entitled to file motions to compel further responses where Plaintiff believes objections are without merit. (Code Civ. Proc., §2030.290(b).) The “burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory." (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.)

The scope of discovery is broadly construed and expressly permits discovery to obtain "the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., § 2017.010.) The right of privacy is not absolute and protects the person’s reasonable expectation of privacy against a “serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.)

While employees’ or former employees’ contact information may be “personal, " such information remains discoverable because the information is:

“… not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information [citations omitted]. This is basic civil discovery. These individuals have been identified by Wild Oats as witnesses. Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted, and additional investigation performed. (Planned Parenthood, supra, 83 Cal.App.4th at p. 359, 99 Cal.Rptr.2d 627 [home addresses and telephone numbers are ‘routinely produced during discovery’].) As the Supreme Court pointed out in Pioneer, the information sought by the petitioners here—the location of witnesses—is generally discoverable, and it is neither unduly personal nor overly intrusive." (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1253–1254.)

Additionally, refusing to disclose contact information prevents the Plaintiff from issuing subpoenas for the witness’s respective depositions until such time that Defendant agrees to provide the information. Trial is currently set for November 18, 2024. Plaintiff is entitled to expeditiously prepare her case.

Defendant refused to provide identities of the persons most knowledgeable on policies and procedures for reporting customer complaints regarding incidents on the premises, policies, and procedures for Defendant’s loss prevention department; and the person most qualified about safety training manuals provided to employees that were in effect at the time of the incident. (Opp. Ex. A, SI 66-69.) These are not “vague and ambiguous” descriptions of the topics about which Plaintiff wants to inquire. These objections are equally without merit.

Finally, Defendant does not explain why it did not respond to Plaintiff’s efforts to meet and confer from April 28, 2024, through May 13, 2024, until after Plaintiff filed this motion. The delay caused by asserting improper objections and failing to meet and confer caused Plaintiff to incur fees and costs to prepare these motions.

C. Responses to Supplemental Interrogatory and Supplemental Production of Documents

Plaintiff served supplemental discovery on March 21, 2024, to "elicit any later acquired information bearing on all answers previously made by any party” in response to interrogatories and request for production of documents. (Code Civ. Proc., § 2030.070 subd. (a); Code Civ. Proc., § 2031.050 (a).) Plaintiff permitted an extension to respond until May 7, 2024. (Mot. Boris Decl. Ex. 3.) Defendant requested an extension of time to respond, but never responded, despite Plaintiff’s numerous efforts to meet and confer. (Mot. Boris Decl. ¶¶ 1-7.)

Defendant does not explain why responses were served after the due date and not until June 13, 2024, when Defendant filed its opposition to this motion, or why Defendant failed to respond to Plaintiff’s efforts to meet and confer. (Opp. Ex. A.)

In its supplemental responses, Defendant asserted numerous objections despite the fact that an untimely response waives objections including one based on privilege or work product. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.050 subd. (a).) Plaintiff is entitled to further verified responses, without objection.

Imposition of sanctions are warranted as Defendant has not shown substantial justification for failing to timely respond to the supplemental discovery or substantiating any objections asserted in response to SI2. The court reduces Plaintiff’s counsel’s hourly rate from $450 per hour to $350 per hour which is reasonable for non-complex discovery motions. The Court permits four hours to prepare each motion and reply brief as requested and one hour to appear for all three motions. Sanctions are calculated as follows:

Based on the foregoing, the court GRANTS Plaintiff’s three motions to compel responses to supplemental discovery and further responses to the second set of special interrogatories. Defendant is ordered to serve within 10 days, further, verified, and complete responses without objections to the Special Interrogatories, Set Two; and further, verified, and complete responses without objection to Supplemental Interrogatory and Supplemental Request for Production of Documents.

Defendant Ross Dress for Less, Inc. and its counsel Prindle, Goetz, Barnes & Reinhotlz, LLP, jointly and severally, are ordered to pay Plaintiff $4,550 within 10 days.

Compel Further Responses to SI2	$350 x 4	$1,400.00
Compel Response to Supplemental Interrogatory	$350 x 4	1,400.00
Compel Response to Supplemental document request	$350 x 4	1,400.00
Appearance	$350 x 1	350.00
Total sanctions		$4,550.00