I. BACKGROUND 

Plaintiff Beth Blair (“Plaintiff”) filed this action against defendants Home Depot U.S.A., Inc. (“Home Depot”), Doe Manager, and Does 1 to 10 for injuries arising from a slip and fall on a wet floor because Doe Manager was pouring water onto the floor.   

At this time, Plaintiff moves to compel the deposition of Home Depot’s employee, Veronica Wallace (“Wallace”) and for sanctions. Home Depot opposes the motion and requests sanctions. Plaintiff filed a reply.   

Plaintiff argues Home Depot has had four other slip and fall incidents on September 22, 2017, October 1, 2017, July 29, 2018 and July 31, 2019 in the Garden Department due to overwatering of plants, and that Wallace’s deposition is necessary because she was a witness to the past October 1, 2017 incident and a witness to Plaintiff’s incident. Plaintiff contends Home Depot has refused to produce Wallace on the grounds of relevance and that it would be filing protective orders. 

Plaintiff contends Wallace’s deposition is relevant because she was the employee identified as working near the subject area on the day of the incident, and is likely to testify that there was water on the floor at the time of the incident to prove that the floor was unsafe. Plaintiff avers this is an element needed for Plaintiff to prove her case of a dangerous condition. Plaintiff also asserts her deposition is necessary to show that it was foreseeable that slip and fall incidents would occur because of the prior slip and fall incident.  

Home Depot asserts that Wallace’s deposition has no bearing on any claims damages, defenses or other probative issues because notice of a dangerous condition is a non-issue. Home Depot does not dispute that it had notice of water on the floor due to the warning signs placed in the area, and that Plaintiff already deposed two of its employees: Brittani Bartlett (“Bartlett”) and Joshua Rowry (“Rowry”). Bartlett was the individual watering at the garden center on the date of the subject incident, and Rowry investigated the incident in a managerial capacity. Home Depot argues Wallace’s testimony of a different incident two years prior to Plaintiff’s is immaterial. 

Home Depot served written objections to Plaintiff’s amended notices of deposition of Wallace on October 20, 2023 and November 9, 2023, and that it never provided dates of availability for Wallace’s deposition. Home Depot asserts it intends to file a motion for protective order.  

Plaintiff argues that Wallace’s deposition is intended to prove not the water, but that the floor itself was abnormally dangerous. Plaintiff reasserts that Wallace’s witness to the incident and at least one prior incident is relevant. 

II. COMPEL DEPOSITION 

CCP § 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. 

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, citations omitted.)   

Here, Home Depot avers it timely served written objections to Wallace’s deposition on October 20, 2023 and November 9, 2023. The Court notes that the declaration of its counsel, Sarah C. Denis, fails to attach any of the referenced exhibits. Plaintiff’s counsel’s declaration, however, provides a copy of Home Depot’s objections. Home Depot’s objections served on October 20, 2023 states: “The basis for this objection is that the deposition was unilaterally set without coordination with Defendant’s counsel and Defendant’s counsel and/or the witness is unavailable on the predetermined date. Defendant’s counsel will provide alternative dates for the deposition.” (Gallo Decl. at p. 75-77.) Home Depot’s objections served on November 9, 2023 provides: “The basis for this objection is that the deposition was unilaterally set without coordination with Defendant’s counsel and Defendant’s counsel and/or the witness is unavailable on the predetermined date.” (Id. at p. 78-79.) There is no evidence that Home Depot served valid objections to Wallace’s deposition on the grounds of relevance for this Court to consider sustaining that objection. Further, the Court notes that, to date, Home Depot has not filed any protective order as it asserted it would when the parties had attempted to meet and confer on this issue. Thus, Home Depot has neither met its burden nor given this Court any grounds for it to consider precluding Wallace’s deposition.   

Accordingly, the Plaintiff’s motion is GRANTED.  (CCP § 2025.450(a).)  Home Depot’s employee Veronica Wallace is ordered to appear for her deposition at a date, time, and location to be noticed by Plaintiff. The parties are ordered to meet and confer on a mutually agreeable date in order for her deposition to proceed within 30 days. If Home Depot does not meaningfully participate in the meet and confer discussion, Plaintiff may unilaterally notice Wallace’s deposition, and Wallace is ordered to appear for the deposition on a date, time, and location and Plaintiff’s election. However, Plaintiffs must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service) 

III. SANCTIONS 

CCP § 2025.450(g)(1) requires the court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. Both parties request monetary sanctions. Here, the Court finds Home Depot’s refusal to produce Wallace has some justification, but due to procedural deficiencies, Home Depot did not meet its burden. Therefore, the Court declines to impose sanctions on either Plaintiff or Home Depot. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 14th day of March 2024