Judge Stephen P. Pfahler, Case Number: 21STCV13995, Date: 2024-01-18 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21STCV13995, Date: 2024-01-18 Tentative Ruling

Case Number: 21STCV13995 Hearing Date: February 27, 2024 Dept: 68

Dept. 68

Date: 2-27-24 c/f 1-18-24

Case # 21STCV13995

Trial Date: 5-20-24

SANCTIONS

MOVING PARTY: Defendant, Super Center Concepts, Inc.

RESPONDING PARTY: Plaintiff, Rosa Lucio

RELIEF REQUESTED

Motion for Terminating Sanctions

SUMMARY OF ACTION

On June 21, 2020, Rosa Lucio slipped and fell on the premises of a retail location identified as Superior Grocers, Inc. on 5824 S. Vermont Ave. On April 13, 2021, Plaintiff filed a “complaint for personal injuries premises liability.” On May 28, 2201, Super Center Concepts, Inc. answered the complaint and filed a cross-complaint.

On October 13, 2022, the action was transferred from Department 29 (a PI Hub Court) to Department 39. On October 26, 2022, Plaintiff filed a 170.6 challenge to the judicial officer in Department 39. The action was transferred to Department 68.

RULING: Continued.

Defendant Super Center Concepts, Inc. (Super) moves for terminating sanctions and additional monetary sanctions following an order to compel production of a certification for a certain forensic report from plaintiff Rosa Lucio, as well as an order compelling further deposition. Plaintiff in opposition denies any willful violation of any order, and in fact maintains compliance with “all” court orders. Plaintiff counter requests sanctions. Super in reply challenges any representations of compliance with the April 20 or November 20, 2023, orders. Super maintains extreme prejudice. Super also represents the lack of any payment of monetary sanctions.

At the first hearing on this motion, the court noted the December 18, 2023, filed Notice of Appeal. Plaintiff subsequently filed a second notice of appeal on February 20, 2024. The “perfecting” of an appeal imposes an automatic stay on the case on “matters embraced therein…but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) Both notices continue to lack any identification of the appealed order(s). It’s also not clear whether the appeal has been perfected for purposes of staying the subject hearing. The court therefore (again) proceeds with the hearing. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1383-1384.)

Following the January 18, 2024, hearing on the motion for terminating and monetary sanctions, the court ordered supplemental briefing. In reviewing the prior orders of the court, the court determined Plaintiff was required to either produce the certification from the forensic examiner without any further legal or factual challenges, and meet and confer on the deposition of Plaintiff after plaintiff represented availability on February 29, March 4 and 5, 2024. The court invited supplemental briefs updating the court as to the status of the two items, and further sanctioned Plaintiff and counsel.

The supplemental brief from Super Grocers, Inc. reiterates the underlying dispute leading to the prior motion for terminating sanctions, with only a brief statement of the failure to produce the forensic examiner certificate and non-payment of previously imposed monetary sanctions. Nothing in the brief represents any issue with the deposition of Rosa Lucio. Super Grocers, Inc. also includes extensive hearing transcripts in support of the argument regarding the inadequacy of the responses.

Plaintiff presents a declaration from counsel under penalty of perjury, whereby an agreed upon date of March 5, 2024, for the deposition of Rosa Lucio remains set. Plaintiff also represents service of the Certificate of the Forensic Expert on February 9, 2024. Following the supplemental brief, Plaintiff filed a motion for protective order on the deposition of third party Stephanie Lucio.

Given the agreed upon deposition date, the only outstanding issue remains whether the certificate was produced or not. The court accepts the veracity of the declaration of attorney Kashani under penalty of perjury that the certificate was produced. If moving counsel denies receipt, as represented in the supplemental brief filed after the represented delivery date, the court orders a second copy delivered for verification purposes within 3 calendar days from the date of this order.

As for the other disputes regarding the adequacy of the production, including the numerous pages of hearing transcripts from the April 20, 2023, November 3, 2023, and November 21, 2023, hearing, the court declines to revisit the prior orders and review any items other than the basis for the instant motion—terminating sanctions for failure to produce Plaintiff for a deposition and production of the forensic examiner certificate.

Argument seeking further responses may be addressed via a separate motion, but the court will not expand the scope of the instant motion and set parameters for the supplemental brief. Any potential motion to compel further responses challenging the redacted information from the lien providers will likely lead to the setting of an OSC re: Appointment of Referee given the May 20, 2024, trial date, volume of the dispute, including the entire discovery history of the parties, and impacted court calendars before the impending discovery cutoff.

With the agreed upon March 5, 2024, deposition date, outstanding at the time of the instant hearing, and pending verification of production of the certificate by Superior Grocer, the court once again continues the hearing strictly for an update of the deposition status and certificate compliance. The next hearing will only address verification of the certificate if and only if Defendant continues to maintain a lack of production in direct contradiction to the sworn statement of Plaintiff’s counsel, and/or inquiry on whether deposition to took place or not.

On the current motion for protective order scheduled for May 22, 2024—two days after the trial date—the court assumes the parties will confer with the court on a potential earlier date, should Super Grocer continue to seek the deposition. The court will also consider the appointment of a referee strictly for the purpose of reviewing the redacted lien documents, if requested. Any issues with the deposition of Plaintiff may also lead to a court ordered referee supervised deposition should the acrimonious disputes continue.

Follow-up hearing dates and submission deadlines will therefore be determined at the time of the hearing. Once again, both parties are required to submit new briefs for this continued hearing. Each brief must be filed at least 7 calendar days prior to the continued hearing. The new briefs will be limited to three (3) pages each strictly limited to the certificate and deposition for both sides. The parties must address those two issues only in specific detail. If the supplemental brief is deemed unnecessary, the court orders moving party to notify the court by taking the continued motion off-calendar.

Trial remains set for May 20, 2024.

Moving party to give notice.