Judge: Michael Shultz, Case: 23CMCV00173, Date: 2024-10-08 Tentative Ruling
Case Number: 23CMCV00173 Hearing Date: October 8, 2024 Dept: A
23CMCV00173
Micaela Luna Cuevas v. The Kroger Co. et al.
[TENTATIVE] ORDER
The
complaint alleges one cause of action for premises liability arising from an
incident that occurred at Defendant’s store, when Plaintiff slipped and fell on
water allegedly coming from the ceiling above.
At
issue are Defendant’s responses served on May 23, 2024 to a document request
served by Plaintiff, Nos. 16, 17, 19, 20, 21, 22, and 23. Plaintiff argues that Defendant did not
respond to Plaintiff’s meet and confer letter of May 31, 2024, regarding
Defendant’s responses. After Defendant took the Plaintiff’s deposition,
Plaintiff again met and conferred with Defendant on June 11, 2024 about
Defendant’s responses to the document request. Defendant failed to respond. Plaintiff
asks for the imposition of sanctions for Defendant’s failure to meet and
confer.
In
opposition, Defendant, Ralphs Grocery Company dba Food 4 Less (“Defendant”),
argues it provided code-compliant responses to Requests 16, 17, 19, and 23 and
will provide further responses to Request 22, pending further clarification
from Plaintiff’s counsel. Plaintiff did not meet and confer with respect to
Request 21, nor did Plaintiff respond to Defendant’s request to limit the scope
of Requests 20 and 21. Plaintiff’s request for sanctions is not warranted given
the parties’ ongoing efforts to meet and confer. Defendant requests imposition
of sanctions as Defendant had substantial justification for continuing to meet
and confer with respect to the remaining responses to which Plaintiff has not
responded.
Plaintiff
did not file a reply brief.
A
motion to compel further responses to a document request is proper where the
requesting party believes the statement of compliance is incomplete or a
representation of inability to comply is inadequate, incomplete, or evasive
and/or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310.) Plaintiff, as
the moving party is required to submit a declaration attesting that the parties
met and conferred prior to filing the motion.
Plaintiff
objected to the Defendant’s responses and sought to meet and confer as to responses
16, 17, 19, 20, 23. (Defendant’s Opp. Ex. C, .pdf p. 46.) Defendant served
further verified responses to 16, 17, and 23 on July 15, 2024. (Defendant’s Opp., Ex. E, .pdf p. 54.) Plaintiff did not
file a reply brief disputing this fact. Accordingly, an order compelling
further responses to those requests are no longer at issue.
Requests
19 and 20 remain at issue. Request 19 requests photographs of the subject area
within two weeks after the incident. Request 20 requests reports of other
incidents at the subject property within one year prior to the incident.
To
prevail on a claim for premises liability, a plaintiff must establish the
existence of a dangerous condition, and that the defendant knew or should have
known of it. (Vaughn
v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556.)
Actual or constructive notice of the dangerous condition is key to establishing
defendant’s liability." (Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) A
business owner’s duty to a person coming on the premises includes a duty to "inspect
the premises or take other proper action to ascertain their condition, and if,
by the exercise of reasonable care, the owner would have discovered the
condition, he is liable for failing to correct it." (Ortega
at 1207.)
Request
19 is relevant in that photographs of the subject area after the incident
occurred, while not relevant to establish liability, are relevant to other
issues, "such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment." (McIntyre
v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 673.)
As
Defendant observes, Request 20 is unlimited in scope as it is not directed to
the specific area where Plaintiff fell, but rather requests reports of other
incidents “at the subject property.”
Based
on the foregoing, the court orders the parties to continue their meet and
confer efforts to resolve the remaining issues. The hearing on Plaintiff’s
motion is continued to