Judge: Stephen Morgan, Case: 21AVCV00916, Date: 2023-03-28 Tentative Ruling

Case Number: 21AVCV00916    Hearing Date: March 28, 2023    Dept: A14

Background

This is a premises liability action. Plaintiff Nellie Reyes (“Plaintiff”) alleges that on November 28, 2019, she was lawfully on the property of Defendant Super Center Concepts, Inc., dba Superior Grocers (“Defendant”), located at 38360 20th St. E., Palmdale, CA 93550 when she slipped and fell on an unknown liquid substance, sustaining bodily injuries and damages.¿

On November 12, 2021, Plaintiff filed a Complaint alleging one cause of action for Premises Liability.¿

On January 05, 2022, Defendant filed its Answer.

On January 12, 2023, Plaintiff filed a notice for a Motion for Protective Order.

On February 01, 2023, the Court signed the corresponding Order for the Stipulation to Continue Trial, FSC [and Related Motion/Discovery Dates] signed by the parties.

On February 23, 2023, Plaintiff filed this Motion for Protective Order.

On March 15, 2023, Defendant filed its Opposition.

On March 20, 2023, Plaintiff filed her Reply.

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Analysis

Standard for Protective Order – “In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172; Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) “In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.) 

Cal. Code Civ. Proc. § 2030.090 provides:

(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions.

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

(Cal. Code Civ. Proc. § 2030.090(a)-(b).)

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Meet and Confer Requirement – A motion seeking a protective order under Cal. Code Civ. Proc. § 2030.090 must be accompanied by a meet and confer declaration stating facts that show a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Cal. Code Civ. Code § 2030.090(a).) Counsel for Plaintiff, Svetlana Darbinyan (“Darbinyan”), has provided that “[o]n or about December 27, 2022, [she] emailed Ms. Cummings asking to withdraw the excessive discovery. Attached as Exhibit 5. Defendant’s counsel refused to do so and Plaintiff has been left no option other than to file this motion for protective order.” (Decl. Darbinyan ¶ 10.)

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Discussion

Application – As an initial matter, the Court addresses the timing of this Motion for Protective Order as Defendant presents that it is untimely.

Plaintiff has provided the propounded Special Interrogatories, Set Two, as Exhibit 4. The proof of service shows that discovery was served electronically on December 02, 2022. “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (Cal. Code Civ. Proc. § 2030.260.) “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following: (i) [a] notice of intention to move for new trial[,] (ii) [a] notice of intention to move to vacate judgment under Section 663a[,] (iii) [a] notice of appeal.” (Cal. Code Civ. Proc. § 1010.6.) Accordingly, a response was due January 03, 2023.

Exhibit 5 of the Motion for Protective Order depicts the email thread between counsels. Counsel for Defendant, Katy A. Cummings (“Cummings”), provided Plaintiff with a one-week extension to respond to discovery. With the extension, Plaintiff’s responses to Special Interrogatories, Set Two, were due on January 10, 2023.

Plaintiff’s Reply indicates that there was an initial extension which made Plaintiff’s responses due on January 12, 2023 and a second extension. Exh. A indicates that Plaintiff sought a three-week extension on January 12, 2023 and Defendant agreed only if Plaintiff would stipulate to a trial continuance, Plaintiff did not and instead requested a two week extension stating that “[counsel] will try to serve [discovery] on Monday,” Defendant agreed to service on Monday only. (Reply, Exh. A.) Monday was January 16, 2023.

Regarding timing, Plaintiff argues that she served the Notice of the Motion for Protective Order to Defendant on January 09, 2023 and that under Cal. Code Civ. Proc. § 1005.5, a motion is deemed to have been “made” and to be pending before the court for all purposes, upon the due service and filing of the notice of motion. (See Exh. B.)

Cal. Code Civ. Proc. § 1005.5 reads:

A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled. Procedure upon a motion for new trial shall be as otherwise provided.

Cal. Code Civ. Proc. §1010 reads:

Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice. Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code. No bill of exceptions, notice of appeal, or other notice or paper, other than amendments to the pleadings, or an amended pleading, need be served upon any party whose default has been duly entered or who has not appeared in the action or proceeding.

On January 12, 2023, Plaintiff filed a notice for a Motion for Protective Order. Plaintiff did not file the memorandum until On February 23, 2023.

Weinstein v. Blumberg (2018) 25 Cal.App.5th 316 (“Weinstein”) interprets the statutory requirements of notice and applies that to when a motion and its supporting papers need be filed. Weinstein holds that a discovery motion is untimely where supporting papers were not attached or timely served. (Id. at 320.) That is, alluding to other papers without attaching them did not satisfy the requirements for a motion made as provided by Cal. Code Civ. Proc. §§ 1005(b), 1005.5, and 1010, (Ibid.) The Court also considered whether the motion qualified as having been made as otherwise specifically provided by law. (Ibid.)

Plaintiff attempts to distinguish Weinstein due to the type of motion (motion to compel compliance by deponent v. motion for protective order). Plaintiff argues that protective orders are more in line with the cases related to Cal. Code Civ. Proc. § 473(b) and it has long been settled that an application for relief filed pursuant to Cal. Code Civ. Proc. § 473(b) is deemed made as of the date that it is filed and that such application must be determined even if actually heard by the court beyond the six-month period.

Plaintiff’s citations – Garcia v. Gallo (1959) 176 Cal.App.2d 658, 669; Gardner v. Trevaskis (1958) 158 Cal.App.2d 410, 413; and Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1488 – focus on relief under Cal. Code Civ. Proc. § 473(b). No citations are provided for Plaintiff’s statement that “protective orders are more in line with the cases related to C.C.P. sec. 473(b).” (Reply ¶ 7.) Alone, this statement is conclusory.

This Court is bound by California case precedent. Under Weinstein, a motion is untimely where supporting papers are not attached or timely served. Plaintiff’s exhibits in the Reply show that only a Notice of the Motion for Protective Order was served on January 09, 2023. (See Reply, Exhs. A-B.) There is no indication in the exhibits provided that supporting papers were served prior to the January 16, 2023 deadline, agreed upon by the parties.

The Court’s records reflect that the Notice of the Motion for Protective Order was served on January 09, 2023 whereas the memorandum itself was served on February 23, 2023, over one month after the the January 16, 2023 deadline, agreed upon by the parties.

Plaintiff’s Motion for Protective Order is untimely.

The Motion for Protective Order is DENIED.

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Conclusion