Judge: Teresa A. Beaudet, Case: BC665798, Date: 2023-10-06 Tentative Ruling

Case Number: BC665798    Hearing Date: October 6, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed this Proposition 65 (“Prop 65”) action on June 20, 2017 against a number of Defendants, including Gel Spice Company, Inc. (“Gel Spice”). The operative Second Amended Complaint (“SAC”) was filed on January 19, 2021, alleging that various defendants exposed California consumers to lead without Proposition 65 warnings through the manufacture and sale of certain food products (spices). This action was later consolidated with Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc. (Case No. 19STCV24048), in which the chemicals at issue were lead and arsenic.   

On July 6, 2022 and October 18, 2022, Plaintiff served amended notices of deposition of Gel Spice’s Person Most Qualified. (Yeroushalmi Decl., ¶ 2, Ex. A.) Plaintiff indicates that the deposition was held on October 20, 2022. (Yeroushalmi Decl., ¶ 3.) Plaintiff’s counsel states that “[o]n October 21, 2022, [Plaintiff] sent the Defendant a meet and confer letter regarding Defendant’s objection to [Plaintiff’s] notice to produce documents at deposition.” (Yeroushalmi Decl., ¶ 4, Ex. B.)  Plaintiff’s counsel states that as of the date of his November 4, 2022 declaration in support of the instant motion, “Defendant has not provided documents in response to Plaintiff’s deposition notice.” (Yeroushalmi Decl., ¶ 7.)

On January 9, 2023, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s January 9, 2023 minute order provides, inter alia, that “[t]he parties participated in an Informal Discovery Conference regarding the issues set forth in the Plaintiff’s short statement regarding Informal Discovery Conference January 4, 2023. The parties reached tentative agreements regarding the issues raised but if Motions to Compel Further are necessary, Plaintiff has until January 30, 2023 to file such motions.”[1]

            On January 30, 2023, Plaintiff filed a “Supplemental Declaration of Kenneth W. Ralidis in Support of Plaintiff’s Motion to Compel Production of Document [sic] By Defendant’s Person Most Qualified Mr. Andrew Kuszynski, and Request for Monetary Sanctions in the Amount of $1,935.00.” In his supplemental declaration, Mr. Ralidis states that at the January 9, 2023 IDC, Gel Spice “agreed to provide documents ‘for attorneys eyes only’ as well as provide supplemental responses stating that Defendant has undertaken a diligent search and do not have any underlying data within Gel’s possession, custody or control.” (Suppl. Ralidis Decl., ¶ 4.) Mr. Ralidis further states that “Defendant had provided no such supplemental response apart from producing a two-page memorandum of a Proposition 65 assessment for Ground Cinnamon, Turmeric and Cumin,” and that as of the date of the January 30, 2023 supplemental declaration, “Defendant has not provided all documents in response to Plaintiff’s deposition notice and request for documents.” (Suppl. Ralidis Decl., ¶¶ 5-6.)

Plaintiff moves for an order compelling Gel Spice to produce documents responsive to Plaintiff’s Notice of Deposition dated October 18, 2022, document requests nos. 14, 20-1, 23-4, 32-3, and 40. Plaintiff also seeks monetary sanctions. On September 7, 2023, Gel Spice filed a “Declaration of Dennis Raglin Re: Plaintiff’s Moot Motion to Compel Further Document Production.” 

Discussion

Plaintiff indicates that the instant motion is brought pursuant to Code of Civil Procedure section 2025.480. (Notice of Mot. at p. 2:10.) Under Code of Civil Procedure section 2025.480, subdivision (a), “[i]f 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.” Pursuant to Code of Civil Procedure section 2025.480, subdivision (b), “[t]his 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.”

As set forth above, Plaintiff moves for an order compelling Gel Spice “to produce documents responsive to Plaintiff’s Notice of Deposition dated October 18, 2022, document requests no. 14, 20-1, 23-4, 32-3, and 40.” (Notice of Mot. at p. 2:5-7.) In the motion, Plaintiff references testimony from the October 20, 2022 deposition of Gel Spice’s PMQ, Mr. Kuszynski.

Specifically, Plaintiff references the following testimony: “Q…So what, in at least the 2017 time period, was Gel Spice’s limits for the presence of lead so that it would release these spices from its inventory to be processed? A. Okay. So after the turmeric recall for turmeric, we enacted a limit of 1 PPM internally, and we sent that to our suppliers, and we also sent that to internal testing, so we knew that any incoming lot would be tested for that, and 1 PPM was the detection limits at the time set forth across the industry, and we spoke and we determined some things. We also started studying consumption-ratio studies and things like that to help determine.” (Yeroushalmi Decl., ¶ 6, Ex. C (Kuszynski Depo.) at p. 151:13-152:1.) Plaintiff also cites the following testimony: “Q. Do you have documents reflecting that MADL study? A. I don’t personally have them, but I’m sure there’s something.” (Id. at p. 160:4-7.)

Plaintiff asserts in the motion that “[t]he day after the deposition, Plaintiff met and conferred with the Defendant on October 21, 2022 and again thereafter on November 4, 2022 seeking identity of this particular document which Defendant blatantly refused to provide under the garb of objections.” (Mot. at p. 7:11-14.)

As an initial matter, Gel Spice asserts that the instant motion is moot. Gel Spice’s counsel asserts in his declaration that “Plaintiff glosses over the fact that this issue was resolved at the January 9, 2023 Informal Discovery Conference (IDC), and further responses were served. All issues set out in the motion, filed in November of 2022, have been answered, and supplemental documents were served by Gel Spice on Plaintiff on January 10, 2023.” (Raglin Decl., ¶ 9.) Gel Spice’s counsel further states that “Olam” purchased Gel Spice, and that “[a]fter the deposition, and after discussing with the witness and the new team at Olam, another search was made in all places any such Gel Spice documents that still existed after the merger could be, and a two-page document that was an analysis of spice levels and consumption data from Gel Spice’s former counsel and its on-staff scientist was located, and I produced it in January of 2023. This is the document the witness was talking about. It is the only document that was found…” (Raglin Decl., ¶ 10.) Gel Spice’s counsel states that “I told Plaintiff’s counsel that it was all that could be located after a diligent search. Plaintiff’s counsel claimed I was not telling the truth, and that the company was lying. Plaintiff’s ‘Supplemental Statement’ followed in January of 2023…” (Raglin Decl., ¶ 10.)

In its response filed on September 29, 2023, Plaintiff asserts that “[t]he supplemental responses served by Defendant to CAG’s Motion relating to the PMQ deposition did not render CAG’s motion moot because the document was not responsive to what CAG requested.” (Plaintiff’s Response at p. 3:28-4:2.) But Plaintiff acknowledges that supplemental responses were served. As discussed, Plaintiff moves for an order compelling Gel Spice to produce documents responsive to Plaintiff’s Notice of Deposition dated October 18, 2022, document requests nos. 14, 20-1, 23-4, 32-3, and 40. Gel Spice provides evidence that after the instant motion was filed (on November 9, 2022), “supplemental documents were served by Gel Spice on Plaintiff on January 10, 2023.” (Raglin Decl., ¶ 9.) As discussed, Gel Spice’s counsel states that “a two-page document that was an analysis of spice levels and consumption data from Gel Spice’s former counsel and its on-staff scientist was located, and I produced it in January of 2023. This is the document the witness was talking about. It is the only document that was found, and Olam voluntarily waived privilege in producing it. I told Plaintiff’s counsel that it was all that could be located after a diligent search…” (Raglin Decl., ¶ 10.) Thus, the Court agrees with Gel Spice that the instant motion is moot.

Lastly, both parties seek sanctions. Plaintiff cites to Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286-1287, where the Court of Appeal noted that “[w]henever one party’s improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court’s intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party…” The court does not find that Plaintiff has demonstrated that Gel Spice took any improper actions in “resisting discovery.” Thus, the Court declines to award sanctions to Plaintiff. In addition, although Gel Spice seeks monetary sanctions (Raglin Decl., ¶ 14), Gel Spice does not cite to any legal authority in support of such request. Thus, the Court also denies Gel Spice’s request for sanctions.

Conclusion

Based on the foregoing, Plaintiff’s motion is denied as moot. The parties’ requests for sanctions are denied.

The Court orders Gel Spice to give notice of this ruling.

DATED:  October 6, 2023                              ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court