Judge: Steven A. Ellis, Case: 19STCV36676, Date: 2023-12-18 Tentative Ruling

Case Number: 19STCV36676    Hearing Date: March 15, 2024    Dept: 29

Motion to Compel Plaintiff’s Deposition filed by Defendant Grill Concepts, Inc.

Tentative

The Court DENIES Defendant’s request for an order compelling Plaintiff to answer questions and produce documents relating to the deposition in January 2021.

The Court GRANTS Defendant’s request for leave to notice a second deposition of Plaintiff, subject to certain limitations.

The Court DENIES Defendant’s request for sanctions.

The Court GRANTS in part Plaintiff’s request for sanctions.

Background

This case arises from an alleged slip and fall that occurred on April 27, 2019, at a restaurant located at or near 9411 Culver Boulevard in Culver City.  On October 15, 2019, Plaintiff Valerie Valdez (“Plaintiff”) filed her complaint against Defendants Grill Concepts, Inc. (“Defendant”), Randy Neagle, and Does 1 through 50, asserting causes of action for general negligence and premises liability.

Defendant filed its answer on December 3, 2019.

On April 30, 2021, Defendant filed a notice of a bankruptcy stay. 

Plaintiff filed a request for dismissal, without prejudice, of Defendant Randy Neagle on November 15, 2021.

On May 9, 2022, Plaintiff filed a notice that the bankruptcy stay had been modified to permit the prosecution of this action “solely for the purpose of liquidating the claim in order to pursue any available insurance coverage.”  Defendant disputed certain aspects of this notice.  According to the Notice of Modification of Injunction and Amended Notice of Modification of Injunction filed by Plaintiff on October 21, 2022, the bankruptcy court approved on October 19, 2022, a stipulation of the parties allowing this action to proceed “solely for the purposes of liquidating [Plaintiff’s] claim in order to pursue any available insurance coverage.”

On October 24, 2022, the Court set a trial setting conference and allowed litigation to proceed.

On February 16, 2024, Defendant filed this motion to compel Plaintiff to appear for a second deposition and to produce documents.  Defendant also seeks sanctions.  Plaintiff filed her opposition on March 4, 2024, along with her own request for sanctions.  Defendant filed its reply on March 8, 2024.

The parties participated in an Informal Discovery Conference on February 23, 2024.  The dispute was not resolved.

Legal Standard

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., subd. (b).)

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (Id., subd. (i).)

Subject to certain exceptions, “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.”  (Id., subd. (j).)

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.”  (Code Civ. Proc. § 2025.610, subd. (a).)  “Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Id., subd. (b).)

Discussion

At or about the time of filing, the case was assigned a trial date of April 13, 2021.  In December 2020, the Court, on the stipulation of the parties, continued the trial date to February 15, 2022.  (The case was subsequently stayed, and trial is now set for April 23, 2024.)

On January 13, 2021, Defendant took the deposition of Plaintiff.  (Lake Decl., ¶ 4.)  In the motion filed on February 16, 2024, Defendant now seeks (1) an order compelling Plaintiff to answer questions asked at the deposition and to produce documents requested in the deposition notice; and (2) an order granting Defendant leave to take a second deposition of Plaintiff.

As to the first request, the motion to compel is untimely.  Under the governing statute, Defendant was required to bring the motion to compel “no later than 60 days after the completion of the record of the deposition.”  (Code Civ. Proc., § 2025.480, subd. (b).)  Here, the deposition was taken three years ago, and even excluding the time period during which the bankruptcy stay was in effect (from April 2021 to October 2022), the 60-day period ran long ago.

In its reply, Defendant requests – for the first time – relief from the untimeliness bar under Code of Civil Procedure 473, subdivision (b), based upon counsel’s “mistake, inadvertence, surprise, or excusable neglect.”  That request is denied on procedural grounds.  The Court cannot consider, and will not grant, a request for relief raised not in the motion or supporting papers but only for the first time in a reply.

The motion to compel is denied as untimely.

The motion for leave to take a second deposition is granted in part.  Defendant took the deposition in January 2021, and at the time trial was scheduled for February 15, 2022.  The scheduling of party depositions, and whether to take such depositions early in the discovery period, late, or somewhere in between, is a tactical decision.  By proceeding with the deposition in January 2021, Defendant accepted the risk that it would not be able to depose Plaintiff on matters occurring between the deposition and trial. 

Having said that, at the time of the deposition, the period between deposition and the trial date was approximately 13 months.  Subsequently, due to circumstances beyond the control of counsel or the parties, the case was stayed, and now trial is scheduled for April 2024.  Plaintiff will certainly be permitted to testify at trial regarding the events that have occurred in the interim, and given the unusual circumstances of this matter, and the long and unexpected delay in getting the matter to trial, the Court finds good cause for a limited second deposition of Plaintiff.

The second deposition of Plaintiff will be limited to one hour.  Questioning at this second session is limited only to the following: Plaintiff’s treatment, health condition, and injuries for the period of February 15, 2022 (the trial date as of the first deposition) and the present.  Defendant may not use this second deposition to cover subjects addressed during the first session of the deposition or to re-ask questions that were asked at the first session (regardless of whether Defendant contends that Plaintiff improperly failed to answer such questions).   

Defendant’s request for sanctions is denied.  Defendant states that it is seeking sanctions under Code of Civil Procedure section 2025.450, subdivision (g)(1), but that provision relates to a failure to appear for deposition and does not apply.  Code of Civil Procedure section 2025.480, subdivision (j), does apply here and authorizes sanctions against a party or attorney “who unsuccessfully makes or opposes a motion to compel an answer or production.”  Plaintiff and her attorney have not unsuccessfully opposed such a motion.

Plaintiff’s request for sanctions is granted in part.  Defendant and its attorneys have unsuccessfully made a motion to compel an answer or production and are therefore subject to sanctions under section 2025.480, subdivision (j).  They have not acted with substantial justification in bringing such a time-barred motion, and there is nothing in the record to indicate that the imposition of sanctions against Defendants’ attorneys would be unjust.  Because of the bankruptcy case, and the modification of the injunction to allow the case to go forward only as to the liquidation of Plaintiff’s claim and the pursuit of available insurance coverage, no sanctions will be awarded against Defendant.

Sanctions are set in the amount of $900, calculated based on three hours of attorney time, multiplied by a reasonable billing rate of $300 per hour for work of this nature.  (See Green Decl., ¶ 16.)

Conclusion

The Court DENIES Defendant’s request for an order compelling Plaintiff to answer questions asked at the deposition in January 2021 and produce documents requested in the notice of that deposition.

The Court GRANTS Defendant’s request for leave to notice a second deposition of Plaintiff, subject to the following limitations: (1) the deposition may not exceed one hour (excluding breaks); (2) the questioning must be limited to Plaintiff’s treatment, health condition, and injuries for the period of February 15, 2022, to the date of the deposition; and (3) the deposition must be taken on a date to be determined by counsel but no later than April 12, 2024.

The Court DENIES Defendant’s request for sanctions.

The Court GRANTS in part Plaintiff’s request for sanctions.

The Court ORDERS Defendant’s counsel Jay B. Lake to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the amount of $900 within 30 days of the hearing.

Defendant is ORDERED to give notice.