Judge Ronald F. Frank, Case 19STCV00682 2023-03-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 19STCV00682, Date: 2023-03-01 Tentative Ruling

Case Number: 19STCV00682 Hearing Date: March 1, 2023 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: March 1, 2023

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CASE NUMBER: 19STCV00682

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CASE NAME: Donald Greene v. Komatsu Forklift Retail Operations, Inc., et al

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MOVING PARTY: Cross-Defendant/Cross-Complainant, Rack Us Up, Inc.

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RESPONDING PARTY: No opposition filed

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TRIAL DATE: August 2, 2023

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MOTION:¿ (1) Motion to Compel Lithographix, Inc. to Comply with a Subpoena Duces Tecum issued on July 28, 2022

(2) Request for Monetary Sanctions

Tentative Rulings: (1) GRANTED. Moving party to discuss at the hearing which calls of the SDT remain outstanding so a suitable order can be crafted

(2) Denied without prejudice

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I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On May 24, 2017, Plaintiff Donald Green (“Plaintiff”) was working on a stand-up forklift at his place of employment at Lithographix, Inc. (“Lithographix”) when he allegedly lost control of the stand-up forklift, colliding into a nearby empty storage rack system. The rack allegedly penetrated the operator compartment, pinning the Plaintiff between the operator compartment of the stand-up forklift and a horizontal bar that was part of a shelf on the storage rack system, allegedly causing injuries to Plaintiff’s abdominal area and lower back. Plaintiff alleges that Defendant Rack Us Up, Inc. (“Rack Us Up”) was negligent in installing the shelving rack system that caused Plaintiff to be injured.

On August 8, 2022, Rack Us Up served a deposition subpoena duces tecum on Lithographix for, inter alia, all documents related to the incident and Plaintiff’s employment records at Lithographix (the “SDT”). Defendant Rack Us Up argues that Lithographix’s response to the SDT was due on August 29, 2022. Rack Us Up contends that Lithographix has failed to respond to SDT.

As such, Rack Us Up has filed this motion to compel Lithographix to comply with the SDT and for sanctions in the amount of $1,459.15 for Lithographix’s failure to comply with the discovery process.

B. Procedural¿¿¿

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Cross-Defendant/Cross-Complainant, Rack Us Up, filed this Motion on September 26, 2022. No opposition has been filed. On February 24, 2023, Cross-Defendant/Cross-Complainant, Rack Us Up, Inc. filed a Declaration of Kevin E, Lawless in support of its motion to compel Lithographix, Inc. to comply with a subpoena Duces Tecum. No opposition has been filed although the moving party submitted a declaration of counsel indicating that he has been in communication with Lithographix’ counsel who has provided sone but not all of the requested information.

¿II. MEET AND CONFER ¿¿¿

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On July 28, 2022, Counsel for Rack Us Up caused Array, its attorney service to issue the SDT upon Lithographix. (See Declaration of Kevin E. Lawless (“Lawless Decl.”), ¶ 2, Exhibit 1.) On August 8, 2022, Array served Lithographix with the SDT, which demanded production of various documents on or before August 29, 2022 (Declaration of Tami Martinez, ¶ 5, Exhibit 2.) Rack Us Up claims that on numerous attempts, Derrinda Van Der Linden and Kristel Smith of Array attempted to contact Lithographix by number and email. Rack Us Up claims that it received no reply before filing this motion. As such, Rack Us Up has met its meet and confer requirements.

¿III. ANALYSIS¿¿

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A. Legal Standard

A deposition subpoena may command only the production of business records without attendance at a deposition from a nonparty. (Code Civ. Proc., § 2020.020, subd. (b).) A deposition subpoena that requires only the production of documents “shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item…” (Code Civ. Proc., § 2020.410, subd. (a).) A deposition subpoena for the production of business documents need not be accompanied by an affidavit of good cause and must be directed at the custodian of records or other person qualified to certify those documents. (Code Civ. Proc., § 2020.410, subd. (c).) The responding party must comply with a deposition subpoena on a date that is no earlier than 20 days after the issuance or 15 days after service of the subpoena, whichever is later. (Id.)

A deposition subpoena is enforceable under Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 2020.030.) After notice and opportunity to be heard, the Court may issue an order quashing the subpoena entirely, modifying it, or directing compliance with it upon terms and conditions as the Court may declare. (Code Civ. Proc., § 1987.1, subd. (d).) Courts also have the authority to protect the responding person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Id.)

A nonparty’s failure to comply with a deposition subpoena may be punished for contempt under Chapter 7 (commencing with Section 2023.010) and may be subject to the forfeiture and payment of damages set forth in Section 1992. (Code Civ. Proc., § 2020.240.)

B. Discussion

The subject of this action is a personal injury that was allegedly caused by the negligent installation by Rack Us Up of a shelving system. Lithographis is the plaintiff’s employer. The subject SDT seeks over 4 dozen categories of documents from Plaintiff’s employer.

Rack Us Up presents evidence that on July 28, 2022, Rack Us Up’s attorney service issued the SDT upon Lithographix. (Lawless Decl., ¶ 2, Exhibit 1.) Rack Us Up presents further evidence that on August 8, 2022, Array served the registered agent listed on the Secretary of State website for Lithographix with the SDT, which demanded production of all responsive documents on or before August 29, 2022 (Martinez Decl., ¶ 5, Exhibit 2.)

Rack Us Up is seeking to compel Lithographix’s compliance with the SDT pursuant to California Code of Civil Procedure section 1987.1. Code of Civil Procedure section 1987.1, subdivision (a), provides that if a subpoena requires the production of documents, the Court may, upon motion reasonably made by a party, make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)

Rack Us Up notes that the motion was timely filed, and that Lithographix had not served any objections to the SDT. (Lawless Decl., ¶ 3.) Additionally Rack Us Up asserts that Lithographix’s response to the SDT was due on August 29, 2022. (Martinez Decl., ¶ 4, Exhibit 1.) As such, Rack Us Up notes that its deadline to file this Motion was on Friday, October 28, 2022. The motion was filed on September 26, 2022. As such, the motion is timely filed.

There does not appear to be any dispute that Lithographix was properly served with the SDT. Rack Us Up’s counsel Mr. Lawless notes in a February 24, 2023 Declaration that he has been engaged in communications with Lithographix’ counsel Mr. Jenkins, that during the pendency of this motion he has had one or more telephonic discussion with Jenkins concerning the status of Lithographix’s compliance with the SDT at issue, and that Mr. Jenkins provided most, but not all, of the information requested, noting that he was still in the process of having Lithographix check to see if it had continuous footage depicting the incident. (Lawless Decl., ¶12, Exhibit 8.)

C. Sanctions

Rack Us Up seeks sanctions against Lithographix in the amount of $1,459.15 for its failure to timely and completely respond to the Subpoena under Code of Civil Procedure sections 2020.240 and 2023.030. While it has taken an unusually long period of time to obtain at least partial compliance, the Court has evidence before it that Lithographix has ultimately provided most of the requested documents but that some of the SDT categories remain outstanding. Under these circumstances, the Court is not inclined to award monetary sanctions, but the denial of sanctions is without prejudice to being raised again if Lithographix fails to fully comply with the SDT within 15 days of personal service on its counsel of the order compelling full compliance with the remaining calls of the SDT.

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Moving party is ordered to give notice.¿¿¿¿¿