Judge Ronald F. Frank, Case Number: 24TRCV00991, Date: 2025-01-06 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV00991, Date: 2025-01-06 Tentative Ruling

Case Number: 24TRCV00991 Hearing Date: January 6, 2025 Dept: 8

Tentative Ruling

HEARING DATE: January 6, 2025

CASE NUMBER: 24TRCV00991

CASE NAME: Nichell Morgan v. Laboratory Corporation of America, et al.

MOVING PARTY: Defendant, Walgreen Co.

RESPONDING PARTY: Plaintiff, Nichell Morgan (No Opposition)

TRIAL DATE: Not Set.

MOTION:

(1) Defendant, Walgreen Co.’s Motion for Protective Order

(2) Request for Monetary Sanctions

Tentative Rulings: (1) Defendant, Walgreen Co.’s Motion for Protective Order is GRANTED. The Court will take oral argument form Plaintiff as to whether Plaintiff would prefer to select which 35 special interrogatories are required to answered at this time, or just the first 35.

(2) Request for Monetary Sanctions is DENIED.

I. BACKGROUND

A. Factual

On March 21, 2024, Plaintiff, Nichell Morgan (“Plaintiff”) filed a complaint against Defendants, Laboratory Corporation of America, Walgreen Co., DOE 1 (Store Manager), and DOES 2 through 50. The complaint alleges causes of action for: (1) General Negligence; and

(2) Premises Liability. The complaint alleges that on April 20, 2023, Plaintiff was lawfully on Defendants’ premises when she stepped on water and/or an unknown substance on the floor which caused her to slip and fall, thereby causing Plaintiff to endure injury.

On September 25, 2024, Defendant, Walgreens Co. (“Walgreens”) now files a Motion for Protective Order pursuant to Code of Civil procedure section 2030.090(a), to limit Plaintiff’s Special Interrogatories to 35 total.

B. Procedural

On November 20, 2024, Defendant Walgreens filed this Motion for Protective Order. To date, no opposition has been filed.

II. ANALYSIS

A. Legal Standard

A protective order may issue under Code Civ. Proc., §§ 2017.020, 2025.420, 2030.090, 2031.060, and 2033.080. In each case, a protective order should be issued for good cause, such as to prevent unwarranted annoyance, embarrassment, oppression, or undue burden and expense. Additionally, prior to making such a motion the moving party must attempt to informally resolve the issue and attach a declaration pursuant to CCP § 2016.040.

A monetary sanction shall be imposed upon any party, person, or attorney who unsuccessfully makes or opposes a motion for protective order unless the court finds that the sanctioned party acted with substantial justification, or that the circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.060, subd. (h).)

“ ‘[T]he issuance and formulation of protective orders are to a large extent discretionary”’ and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.)

The burden is on the party seeking the protective order to show good cause for the order sought. (Id. at p. 318.)

B. Discussion

On September 25, 2024, Plaintiff served Special Interrogatories, Set One on Defendant Walgreens, containing 127 requests. Walgreens argues that because this is a simple slip and fall case, there is no unique or complex issues warranting the propounding of 127 specially prepared interrogatories. Pursuant to Code of Civil Procedure section 2030.030, subdivision (a)(1), “[a] party may propound to another party…thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.” (Code. Civ. Proc., § 2030.030, subd. (a)(1).) However, “…any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following: (1) The complexity or the quantity of the existing and potential issues in the particular case; (2) The financial burden on a party entailed in conducting the discovery by oral deposition; and (3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Code Civ. Proc., § 2030.040, subd. (a)(1)-(3).)

The declaration requirement of Code of Civil Procedure section 2030.050 is as follows:

I, __________, declare:

1. I am (a party to this action or proceeding appearing in propria persona) (presently the attorney for __________, a party to this action or proceeding).

2. I am propounding to __________ the attached set of interrogatories.

3. This set of interrogatories will cause the total number of specially prepared interrogatories propounded to the party to whom they are directed to exceed the number of specially prepared interrogatories permitted by Section 2030.030 of the Code of Civil Procedure.

4. I have previously propounded a total of _________interrogatories to this party, of which __________ interrogatories were not official form interrogatories.

5. This set of interrogatories contains a total of __________ specially prepared interrogatories.

6. I am familiar with the issues and the previous discovery conducted by all of the parties in the case.

7. I have personally examined each of the questions in this set of interrogatories.

8. This number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because __________. (Here state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.)

9. None of the questions in this set of interrogatories is being propounded for any improper purpose, such as to harass the party, or the attorney for the party, to whom it is directed, or to cause unnecessary delay or needless increase in the cost of litigation.

I declare under penalty of perjury under the laws of California that the foregoing is true and correct, and that this declaration was executed on __________.

(Code Civ. Proc., § 2030.050.)

Attached as Exhibit A to the supporting declaration of counsel for Walgreens, J. Adam Laufer (“Laufer Decl.”) includes the propounded special interrogatories as well as the Code of Civil Procedure section 2030.050 declaration of Plaintiff’s counsel, Igor Fradkin. The Court finds that Fradkin’s declaration does not satisfy the requirements of a Code of Civil Procedure section 2030.050 declaration. As noted above, paragraph 8 of the example 2030.050 declaration requires the declarant to state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit. Paragraph 7 of Fradkin’s declaration states: “The number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because of the expedience of using this method of discovery to provide the propounding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Laufer Decl., Exhibit A.) Although Fradkin stated verbatim the subdivision (a)(3) of the Code of Civil Procedure section 2030.040 as his reason for propounding more than thirty-five special interrogatories, he fails to state the reason why that factor is applicable to the instant lawsuit.

As Fradkin’s declaration is insufficient in supporting his purpose for propounded 127 special interrogatories on behalf of Plaintiff, the Court GRANTS - without prejudice - Walgreens’ Motion for Protective Order and limits the amount of special interrogatories Plaintiff can propound on Walgreens to 35 total.

C. Sanctions

Along with Walgreens’ moving papers, it has requested this Court impose monetary sanctions in the amount of $1,620 on Plaintiff. This is based on Walgreens’ counsel’s declaration stating he spent four (4) hours preparing the motion, anticipates two hours for a reply brief, and an additional two hours to attend the hearing at an hourly rate of $195, as well as the $60 incurred filing fee. Here, the Court identifies that no opposition brief has been filed nor has a reply brief or notice of non-opposition. The Court also finds 4 hours spent on a generic discovery motion to be excessive. The Court also finds excessive the anticipated 2 hours on a discovery motion. As such, if the Court found good cause to award sanctions, it would do so in a lowered amount. However, at this time, the Court does not find the awarding of monetary sanctions to be in the interest of justice. Thus, sanctions are DENIED.

III. CONCLUSION

For the foregoing reasons, Defendant Walgreens’ Motion for Protective Order is GRANTED without prejudice. The Request for Sanctions is DENIED without prejudice.

Walgreens is ordered to give notice.