Judge: Steven A. Ellis, Case: 22STCV09491, Date: 2025-05-20 Tentative Ruling

Case Number: 22STCV09491    Hearing Date: May 20, 2025    Dept: 29

Thornton v. Ralphs Grocery Company
22STCV09491
Plaintiff’s Motion to Compel the Deposition of Defendant

Tentative

The hearing is continued.

Background

On March 17, 2022, Charles Thornton (“Plaintiff”) filed a complaint against Ralphs Grocery Company dba Ralphs (“Defendant”), The Kroger Co., and Does 1 through 50 for negligence and premises liability arising out of an alleged slip and fall on April 25, 2020.

On April 28, 2022, Defendant filed an answer.

On November 3, 2023, the Court denied a prior motion to compel the deposition of Defendant but encouraged the parties to meet and confer about the deposition.

There have been a number of trial continuances in this matter. 

Most recently, trial was scheduled for March 13, 2025.  Based on the oral stipulation of the parties, trial was continued to June 25, 2025. 

On April 21, 2025, Plaintiff filed this motion to compel the deposition of Defendant’s person most qualified.  Plaintiff also seeks sanctions. 

Defendant filed an opposition on May 7, along with its own request for sanctions.

No reply has been filed.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. 

“The service of a deposition notice … is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (Code Civ. Proc., § 2025.280, subd. (a).)

Section 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” 

Section 2025.410 requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.  (Code Civ. Proc., § 2025.410, subd. (a).)

Section 2025.450 provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” 

(Code Civ. Proc., § 2025.450, subd. (a).)  The motion must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, “or, when the deponent fails to attend the deposition and produce the documents … by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b)(2).)  The motion must also “set forth specific facts showing cause” for the production of documents.  (Id., subd. (b)(1).) 

When a motion to compel is granted, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2025.450, subd. (g)(1).) 

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.030, subd. (a).)

Discussion

As a preliminary matter, it is unclear to the Court whether discovery is closed (in which case the motion is subject to denial as untimely) and whether the notice of motion and motion are properly prepared (in which the case the motion is subject to denial as procedurally improper).  Neither ground is raised by Defendant in its opposition, however, and so the Court proceeds to the merits.

On March 14, 2025, Plaintiff noticed the deposition of Defendant for April 1, 2025.  (Smith Decl., ¶ 1 & Exh. 1.)  The notice identified four topics of examination (numbered 1, 4, 7, and 8) and 26 categories of documents to be produced (numbered 1 through 26).  (Id., Exh. 1.) 

Defendant served an objection on March 26.  (Id., ¶ 2 & Exh. 3.)  In the objection, Defendant asserted that the four examination of topics were vague, ambiguous, overly broad, and improper on various other grounds.  (Id., Exh. 3.)  Defendant also objected to each requested category of documents.  (Ibid.)

On April 9, Plaintiff sent a letter to Defendant stating that all of the objections were “baseless” and threatening to file a motion to compel unless Defendant responded within three days regarding deposition dates.  (Id., ¶ 3 & Exh. 4.)  There was no request for further discussion or meeting and conferring.

Early in the morning on April 14, Defendant sent an email stating that it “would be happy to meet and confer,” but the email did not propose any dates or times. (Id., ¶ 4 & Exh. 5.) 

That afternoon, Plaintiff responded with an email stating (inaccurately) that the prior letters “were invitations to meet and confer.”  (Id., ¶ 5 & Exh. 6.)  Later that same day, Plaintiff sent a letter stating that the letter “is our last and final attempt to meet and confer.”  (Id., ¶ 6 & Exh. 7.)  The letter threatened to file a motion to compel unless Defendant responded within two days regarding deposition dates.  (Id., Exh. 7.) 

On April 17, Defendant responded with a letter offering to meet and confer by telephone on April 18, 21, or 22.  (Id., ¶ 7 & Exh. 8.)

The next day, on Friday, April 18, the parties exchanged further correspondence.  (Id., ¶¶ 8-10 & Exhs. 9-11.)  In the morning, Plaintiff sent a detailed email about the discovery disputes.  (Id., Exh. 9.)  Defendant responded with an email that requested the opportunity to discuss the disputes by telephone and also set forth Defendant’s position on the disputes.  (Id., Exh. 10.)  Plaintiff sent a substantive response.  (Id., Exh. 11.)

The next business day, on Monday, April 21, Plaintiff filed this motion.

The Court has reviewed the evidence and argument presented by both sides.  A threshold issue that is presented is whether there was an adequate meet and confer.  What is an adequate meet and confer depends, in part, on the context and the nature of the dispute.  Here, the Court determines that although Plaintiff’s written communications (and particularly its two emails on April 18) satisfy the statutory meet-and-confer requirement, there is reasonably likelihood that a real-time discussion (whether in person, by video conference, or by telephone) could resolve, or at the very least narrow, the parties’ disputes.

Accordingly, the Court orders as follows: (1) counsel is ordered to meet and confer (by telephone, video conference, or in person) by no later than May 23, 2025; (2) if any disputes remain, the parties may file and serve supplemental briefs and declarations by no later than June 3, 2025; and (3) the hearing on this motion is continued to June 10, 2025, at 1:30 pm in Department 29 of the Spring Street Courthouse.

Conclusion

The Court CONTINUES the hearing on the motion of Plaintiff Charles Thornton to compel the deposition of Defendant to June 10, 2025, at 1:30 pm in Department 29 of the Spring Street Courthouse.

The Court ORDERS counsel to meet and confer (by telephone, video conference, or in person) by no later than May 23, 2025.

The Court GRANTS LEAVE to the parties to file and serve supplemental briefs and declarations by no later than June 3, 2025.

Moving party is ORDERED to give notice.