Judge Ralph C. Hofer, Case Number: 22STCV06468, Date: 2023-08-11 Tentative Ruling

Plaintiff Bokil Lee alleges that in May of 2021, plaintiff was injured by a birdcage chair and its component parts displayed on the premises of a store owned and controlled by defendants Homegoods, Inc. (DBA Homegoods #433) (Homegoods) and the TJX Companies, Inc.

Plaintiff alleges that as plaintiff was shopping at the Homegoods store, plaintiff sat in the birdcage chair, as any reasonable person would have done, and that the birdcage chair tipped over, took plaintiff to the ground, and landed on top of her. Plaintiff alleges that defendants so owned, occupied, leased, subleased, constructed, repaired, designed, controlled, possessed, maintained, managed and/or operated the premises so as to cause plaintiff to fall in the birdcage chair, and to sustain injuries and damages. The complaint alleges causes of action for negligence, strict product liability resulting in personal injury, and negligent product liability resulting in personal injury.

Defendant Homegoods has filed a cross-complaint for indemnity and declaratory relief against cross-defendant Stylecraft Home Collection, Inc., alleging that cross-complainant Homegoods was not negligent or responsible for the acts, injuries or damages alleged in the underlying complaint, but if cross-complainant is found liable, cross-complainant alleges that its liability is passive and derivative only, and that Homegoods is entitled to be indemnified by the cross-defendants. It is also alleged that cross-complainant and cross-defendant entered into agreements reflected in purchase orders pursuant to which cross-defendant agreed to defend and indemnify cross-complainant, but cross-defendant has breached the agreements by refusing to defend and indemnify pursuant to the certificate of insurance issued on behalf of Ideal Bike Corporation, leaving cross-complainant without such insurance coverage as reflected in the certificate of insurance.

The cross-complaint alleges causes of action for implied indemnity, equitable indemnity, total equitable indemnity, declaratory relief (CCP section 428.10 and CCP section 428.20), declaratory relief—duty to defend, and breach of contract.

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later late to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.”

This time provision is considered mandatory, what is characterized as “quasi-jurisdictional,” so that failure to file within the 45 day time limit is held to render the court “without authority to rule on a motions to compel other than to deny them.” Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410. In Sexton, the Second District held the burden is on the moving party to show the motion is timely, and noted that when the Legislature amended the discovery provisions in 1986, it specifically eliminated a prior statutory provision which permitted the court discretion to extend time for making motions to compel further answers to interrogatories. Now, the court of appeal noted, the statutory language “could not be clearer.” Sexton, at 1409.

The moving papers submit verified responses to the subject discovery, which were served by e-mail on November 18, 2022. [Johnson Decl., para. 2, Ex. 2]. The motions were served on July 29, 2023, well beyond the 45-day deadline.

The declarations in support of the motions indicate that in May of 2023, counsel for plaintiff sent an email to counsel for defendant, after an Informal Discovery Conference (IDC) which had been set in April 2023 did not take place as the matter was transferred to this department. The email states that counsel had been told the new department did not conduct IDCs so plaintiff would go forward and file motions to compel, and let defendant’s counsel know the date. [Johnson Decl., para. 6]. The email is not attached to the moving papers.

The opposition indicates that the parties did agree to toll the time to file the motions to April 11, 2023, the date the IDC had been scheduled in the original department downtown. The Kahn declaration attaches an email in which counsel for plaintiff writes to Kahn, “Pursuant to our conversation, we mutually agreed to toll the motion to compel further discovery responses until April 11, 2023, which is the first available hearing date of the IDC. Formal notice of the same will be directed to counsel should we not be able to resolve this matter within the next 30 - 45 days.” [Kahn Decl., para. 4, Ex. A]. The parties then completed and submitted their IDC statements, but on the morning of April 11, 2023, were advised that the case had been reassigned and the IDC taken off calendar. [Kahn Decl., para. 8].

There does not appear to be any further agreement in writing between the parties further extending the deadline for the filing of motions to compel. The motions were not filed by the agreed upon specified date, April 11, 2023. Even assuming that the parties agreed to “toll” the deadline so that the forty-five days did not begin to run until April 11, 2023, forty-five days from that date, permitting an additional two days for service of the discovery responses by e-mail, would have expired on May 28, 2023. The motions were not served and filed until July 20, 2023, nearly two months late.

Plaintiff in the reply indicates that the parties agreed to extend the filing deadline to April 11, 2023, and argues that defendant admits that the deadline was tolled until the date of the IDC set for April 11, 2023. Plaintiff does not produce a writing confirming a further agreed upon extension of the deadline.

Plaintiff argues that the delay in hearing the motions was due to the IDC being vacated, and the prior hearing dates on the motions to compel being vacated when the case was reassigned. The April 10, 2023 minute order orders the action referred to Department 1 for review and reassignment to an Independent Calendar Court, and states:

“On the Court's own motion, the Final Status Conference scheduled for 08/04/2023, Non-Jury Trial scheduled for 08/18/2023, Order to Show Cause Re: Dismissal scheduled for 02/14/2025, Informal Discovery Conference (IDC) scheduled for 04/11/2023, Hearing on Motion to Compel Further Discovery Responses scheduled for 05/30/2023, Hearing on Motion to Compel Further Discovery Responses scheduled for 05/30/2023, and Hearing on Motion to Compel Further Discovery Responses scheduled for 05/31/2023 are advanced to this date and vacated.”

To the extent this appears to be an argument that motions were in fact timely served prior to the IDC, and the hearing dates cancelled, there is no evidence offered of this, and it does not appear from the file that motions were ever filed, rather than the future hearing dates being reserved, and then advanced and vacated.

The reply also indicates that the following day, on April 11, 2023, the case was reassigned to an Independent Calendar court, to this Department D. [Johnson Reply Decl., Ex. 2, Minute Order 04/11/2023].

“LASC requires Informal Discovery Conferences (“IDC”) and an IDC was scheduled in this case for April 11, 2023. April 11, 2023, was the first available hearing date for an IDC. The Judge (Hon. Michelle C. Kim) in Department “31” at the Stanley Mosk Courthouse automatically tolls filing deadlines for motions to compel since LASC requires IDC’s. At that time, our offices were advised that if the discovery dispute was not resolved at the IDC, that Plaintiff could file her motions to compel at an agreed upon motion schedule at the IDC.”

There is no policy of Department 31 submitted, or anything in the file confirming this tolling beyond the date of the IDC. In any case, counsel for plaintiff concedes that at some point prior to May 5, 2023, when counsel emailed defendant that the motions would be filed, plaintiff’s paralegal was told that Department D does not hear IDCs and was advised to file motions to compel. [Johnson Decl., paras. 6, 7]. At that point, it is not clear why the motions were not promptly served so that an argument could be made that they were served within 45 days of the April 11, 2023 tolled period, either the one agreed to, or the one to which the purported policy of Department 31 applied.

While plaintiff’s argument would explain why there was a delay in hearing the motions, it does not explain why counsel delayed so long in serving them. Once counsel became aware that there would be no IDC, and no motion schedule to be agreed upon at an IDC, there is no explanation why there was an additional delay from May to July in serving the motions. The reply seems to argue that defendant did not previously object to the untimeliness of the motions, but points to no legal authority under which counsel for defendant was required to do so. There is no argument that there was some waiver of the timeliness objection or that defendant should be estopped from asserting it.

Under the circumstances, plaintiff has failed to meet plaintiff’s burden of showing the motions are timely, specifically, were made within 45-days of the service or verified responses, or on or before any specific later late to which the propounding party and the responding party agreed in writing, which date is shown as April 11, 2023, so the propounding party has waived any right to compel a further response to the subject discovery. The motions, to the extent they seek further discovery responses, are denied on this ground.

The court notes, however, that defendant in the opposition papers has agreed to provide further verified Code-compliant responses to Requests for Production Nos. 4-10, 12, 14, 15, 20, 25, 26, 29-32, 37-41, 43, 54, 55, 61, 64 and 65. The court encourages defendant to do so.

To the extent the motion with respect to the requests for production of documents seeks an order compelling compliance with responding party’s statement of compliance under CCP section 2031.320, there is no time deadline for bringing such a motion.

“(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031,240, and 2031.280 thereafter fails to permit the inspection, copying, testing or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”

The statute under which this relief is sought does not contain any express time deadline, as is included with respect to a motion for an order compelling “further response to the demand” under CCP section 2031.310. See CCP section 2031.310(c).

“There is no fixed time limit on this motion. And, no “attempt to resolve informally” need be shown. All that has to be shown is the responding party’s failure to comply as agreed.”

Weil & Brown cite Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, in which the court of appeal, in construing the predecessor statute concerning a motion to compel compliance observed:

“Standon argues that the 45 days runs from the date set for production or inspection. However, a failure in the actual compliance with the demand is governed by section 2031, subdivision (m). Under that subdivision, a party may seek to compel "compliance" with the demand if "a party filing a response . . . under subdivision (f) thereafter fails to permit the inspection in accordance with that party's statement of compliance." No time limit is placed on such a motion.”

Accordingly, although the motion here was not served within the 45-day deadline of CCP section 2031.310(c), as discussed above, to the extent the motion seeks to compel defendant to comply with its statement of compliance under CCP section 2031.320, that statute does not impose the 45-day deadline. The motion to compel compliance is therefore timely and is considered on its merits.

As noted above, to the extent the opposition argues that there has been a failure to meet and confer concerning the document production which occurred in March 20, 2023, and in response to the IDC statements filed in advance of the hearing scheduled for April 11, 2023, with respect to a motion to compel compliance with a statement of compliance, there is no statutory meet and confer requirement.

Plaintiff indicates that although defendant agreed to comply with these demands, it is not clear that all responsive documents were produced, and those which were produced were blurry, cut-off or incomplete.

The Johnson Declaration in support of the motion states that with respect to the several demands to which defendant served a statement of compliance, “Defendant has failed to produce the documents in accordance with its agreement to comply and/or the documents produced are either blurry, cut-off, in incomplete.” [Johnson Decl., para. 12]. The declaration indicates that many of the documents produced were “either blurry, cut-off or incomplete. Not all video surveillance was produced,” and counsel requested the original photo files of the chair because the pdf photos produced were of poor quality, and also requested that an incident report which had been cut off be produced in full, and that clearer documents be produced for the product orders. [Johnson Decl., para. 5]. Since then, defendant has produced fifteen clear photographs, but nothing further. [Johnson Decl., paras. 4].

Plaintiff argues that the production of the clearer photographs suggests that defendant is in possession of clearer documentation overall, and submits with the reply copies of the produced documents, some of which are in fact very difficult to read. [Reply, Ex. 3 HMG00137-139]. Some documents appear to be incomplete, such as purchase order terms and conditions. [Ex. 3, HMG00141-145]. The attached Accident Report appears to have information cut off on the right-hand side. [Ex. 3, HMG00147-00148].

Plaintiff also argues that defendant has failed to produce the user manual, spec sheet, assembly instructions, and other documents which would be sold with the chair, which should be produced. Moreover, there is no responsive documentation submitted concerning an indemnity agreement with Stylecraft Home Collection, Inc., when defendant is taking the position in the cross-complaint that such an indemnity agreement exists.

These requests photographs, moving pictures or video tape of the subject chair taken on the day of the incident, of any injuries sustained by plaintiff, surveillance films depicting plaintiff, insurance policies, and each photograph or video depicting any witness to the incident.

As discussed above, plaintiff argues that the photographs originally produced were blurry, and to the extent clear photographs or all available photographs have not been produced, they will be ordered to be produced. It appears that no photographs were produced of any injuries sustained by plaintiff, or of any witnesses to the incident, and such responsive materials will be ordered to be produced.

Plaintiff argues with respect to the surveillance video produced that defendant has only provided one angle of surveillance, when there are several other cameras closer to the front door/outside where the subject incident occurred, and defendant has failed to produce the other angles of surveillance. Defendant is ordered to produce all responsive documents and surveillance videos as defendant represented it would do.

The insurance policy submitted does not appear complete, including only one page. [Ex. 3, HMG00146]. The complete document must be produced, and all applicable insurance policies must be produced.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to motions to compel further responses to document demands. CCP § 2031.310 (h).

“shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Here, the opposition seeks sanctions on the ground plaintiff unsuccessfully has brought these motions when they were untimely, and forced defendant to oppose the motions which should not have been filed untimely or without a proper meet and confer concerning the documents produced.

Plaintiff in the reply argues that the motions were properly brought and were based on an appropriate meet and confer. As discussed above, the motions were not timely to the extent they sought further responses, although the meet and confer efforts were sufficient. Plaintiff unsuccessfully has brought the motion to compel further responses to interrogatories, based on the failure to timely file it. The court will consider awarding sanctions due to plaintiff having unsuccessfully brought that motion. The court will also consider whether plaintiff was substantially justified in pursuing the discovery dispute given the confusion caused by the transfer of the action to a Department which does not require an IDC process, and the failure of responding party to point out any timeliness objection until the motion had already been filed.

If sanctions are awarded, the sanctions sought are $1,100 (4 hours preparing opposition, 1 hour attending hearing @ $220 per hour). These appear reasonable, and are not challenged in amount by plaintiff, and, if awarded, would have been awarded in full. However, the court elects not to award sanctions on the ground that Plaintiff did prevail in a substantial part of their discovery.

With respect to the motion to compel further responses and compliance with defendant’s statement of compliance, the motion was in part timely, and that portion of the motion unsuccessfully was opposed by defendant. Neither party has entirely prevailed on the motion, and under the circumstances, no sanctions will be awarded.

Plaintiff’s Motion Compelling Further Responses to Plaintiff’s Special Interrogatories (Set One) to Defendant, Homegoods, Inc. is DENIED. Notice of the motion was not given within 45 days of service of the verified Responses on November 18, 2022, or on or before any specific later late to which the propounding party and the responding party agreed in writing, which date is shown as April 11, 2023. The motion was served and filed on July 20, 2023. Pursuant to CCP § 2030.200 (c), the propounding party has waived any right to compel a further response to the subject interrogatories.

Motion Compelling Compliance With and Further Responses to Plaintiff’s Request for Production of Documents and Things, Set One, to Defendant Homegoods, Inc. is DENIED in part and GRANTED in part. Motion is DENIED to the extent it requests further responses to Requests for Production of Documents and Things, Set One. Notice of the motion was not given within 45 days of service of the verified Responses on November 18, 2022, or on or before any specific later late to which the propounding party and the responding party agreed in writing, which date is shown as April 11, 2023. The motion was served and filed on July 20, 2023. Pursuant to CCP § 2031.310(c), the propounding party has waived any right to compel a further response to the subject document demands.

Defendant Homegoods, Inc. is ordered to produce documents or permit the promised inspection and copying according to the statements of compliance set forth in Responses of Defendant, Homegoods, Inc., to Request for Production of Documents (Set One) Propounded by Plaintiff Bokil Lee, Requests Nos. 1-3, 11, 13, 23, 34, and 56-59.

Specifically, either complete and legible copies of all responsive documents must be served, or all original responsive documents must be made available for inspection and copying by plaintiff to ensure that accurate and legible reproductions of the responsive documents are included in the documentation held by plaintiff.

All responsive documents must be produced, as agreed to in the responses, including all documents discussed above, including all documents in connection with the sale of the subject chair, and all responsive photographs, including those depicting plaintiff’s alleged injuries, and those depicting witnesses to the alleged incident. All surveillance videos, from all cameras and all angles must be produced. A complete copy of the insurance policy produced is to be included, as well as any and all policies and indemnity agreements requested in the demand for production.

Monetary sanctions sought in the opposition are denied, as the Court finds that plaintiff was substantially justified in pursuing the motion to obtain the order compelling compliance with defendant’s statement of compliance under CCP § 2031.320 (a), on which plaintiff prevailed and did not unsuccessfully bring the subject motion.

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