Judge Theresa M. Traber, Case Number: 21STCV38940, Date: 2024-03-15 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV38940, Date: 2024-03-15 Tentative Ruling

Case Number: 21STCV38940 Hearing Date: March 15, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 15, 2024 TRIAL DATE: NOT SET

CASE: Consumer Advocacy Group, Inc. v. Walmart, Inc., et al.

CASE NO.: 21STCV38940

(1) MOTION FOR JUDGMENT ON THE PLEADINGS

(2) MOTION TO COMPEL COMPLIANCE WITH THIRD PARTY SUBPOENA FOR BUSINESS RECORDS

MOVING PARTY: (1) Defendants Walmart, Inc. and Wal-mart.com, Inc.; (2) Defendant Walmart, Inc.

RESPONDING PARTY(S): (1)(2) Plaintiff Consumer Advocacy Group, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a Proposition 65 enforcement action that was filed on October 21, 2021. Plaintiff contends that Defendants are knowingly engaged in the sale of plastic suction cups which contain toxic compounds.

Defendants move for judgment on the pleadings and to compel compliance with a third-party subpoena for business records.

TENTATIVE RULING:

Defendant Walmart, Inc.’s Motion for Judgment on the Pleadings is DENIED.

Defendant Wal-mart.com, Inc.’s Motion for Judgment on the Pleadings is MOOT.

Defendant’s Motion to Compel Compliance with Third Party Subpoena for Business Records is DENIED.

DISCUSSION:

Motion for Judgment on the Pleadings

Defendants move for judgment on the pleadings.

Legal Standard for Judgment on the Pleadings

A motion for judgment on the pleadings is the functional equivalent of a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198). Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22). The parties’ ability to prove their respective claims is of no concern. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.) Though the Court must accept the allegations of the complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions, speculation, or allegations contrary to law or [judicially noticed] facts…” (Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc. (2006) 138 Cal.App.4th 1215, 1219-20).

Meet and Confer

Before filing a motion for judgment on the pleadings, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion for judgment on the pleadings and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 439(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439(a)(4).)

Defendants make no effort to demonstrate that they have complied with their statutory meet-and-confer obligations, and, indeed, neglect to mention any such efforts whatsoever. Nevertheless, the Court will address this motion on the merits in the interest of a final resolution of this long-running dispute.

Timing

A motion for judgment on the pleadings may be brought by a defendant at any time after the time to demur has expired and an answer has been filed. (Code Civ. Proc. § 438(f)). Unless a court orders otherwise, a motion for judgment on the pleadings may not be made after entry of a pre-trial conference order, (Cal. Rules of Court 3.720-3.730) or 30 days before the initial trial date, whichever is later. (Code Civ. Proc. § 438(e). No pre-trial conference order was entered in this case, and the motion was filed more than 30 days before the initial trial date.

Defendant’s Requests for Judicial Notice

Defendants filed three sets of requests for judicial notice. The first set contains 17 requests, consisting of (1-5) pre-filing notices served by Plaintiff in this action; (6-10) prefiling notices served in other private enforcement actions; (11) the Office of Environmental Health Hazard Assessment’s Final Statement of Reasons to Adopt Section 12903 Notices of Violation into the California Code of Regulations; (12) the California Attorney General’s Proposition 64 Executive Summary 2019 Settlements; (13) a letter from the California Attorney General to the Court of Appeal concerning certain pre-suit notices; (14) a printout from the California Attorney General’s searchable Proposition 65 Notice Search Database; (15-16) Plaintiff’s 2021 and 2022 Statement of Information filed with the Secretary of State; and (17) the Order Regarding Motion for Judgment on the Pleadings filed by General Mills, Inc. in the Superior Court of California, County of Alameda Case No. RG20057491.

Defendants’ second set of requests seeks judicial notice of various filings in Environmental Health Advocates Inc. v. General Mills Inc., et al., Alameda Superior Court Case No. HG20077077, including (18) the Complaint; (19) the First Amended Complaint; (20) the Order Relating Cases and Partially Staying Actions; (21) the Order Granting Defendants’ Consolidated Motion for Judgment on the Pleadings; and (22) the 60-Day Pre-Suit Notice of Violation at issue in that action.

Defendants’ third set seeks judicial notice of various filings and pre-filing notices in other enforcement actions.

Defendant’s Requests Nos. 1-5, 11, and 22 are GRANTED pursuant to Evidence Code section 452(c) and (h) (official acts and matters readily verifiable and not disputed). Requests Nos. 17 through 21 are GRANTED pursuant to Evidence Code Section 452(d) (court records). The remaining requests are DENIED as irrelevant to the Court’s ruling. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Plaintiff’s Requests for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1 - 5) the Notices at issue in this case; (6) the oldest available 60-Day Notice listed on the Attorney General’s website pertaining to Defendants; (7, 10-11) trial court orders in other enforcement actions; (8) the Final Statement of Reasons; (9) the September 26, 2001 Senate Floor Analysis of Senate Bill 471; and (12-13) letters from the Attorney General regarding other enforcement actions.

Plaintiff’s Requests Nos. 1-5 and 8 are GRANTED pursuant to Evidence Code section 452(c) and (h) (official acts and matters readily verifiable and not disputed). The remaining requests are DENIED as irrelevant to the Court’s ruling. (Gbur v. Cohen, supra, at p. 301.)

Plaintiff’s Improper Declarations

Plaintiff supplements its opposition and supplemental opposition with declarations from its counsel. To the extent these declarations are offered as evidence of factual contentions advanced in Plaintiff’s briefing, these declarations constitute improper extrinsic evidence of matters not subject to judicial notice, and neither they nor the arguments with which they are associated will be considered.

Matters Before the Court

Defendants’ Motion originally challenged the pleadings on two grounds: first, that the operative 60-Day-Notices of Violation were inadequate as to Defendant Wal-mart.com Inc., and second, that the Notices fail to comply with the regulatory notice requirements. Since this motion was filed, Plaintiff has dismissed Wal-mart.com Inc. (February 13, 2024 Request for Dismissal.) The Court therefore confines its analysis to only those issues pertaining to Defendant Walmart Inc.

Standard for Proposition 65 Notices

Plaintiff brings this action as a citizen enforcement suit under the Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65. (Health & Saf. Code §§25249.5 et seq.) Defendant’s motion concerns whether the pre-filing Notices of Violation served by Plaintiff satisfy Proposition 65’s notice requirements and enacting regulations. Specifically, Defendant argues that a compliant notice under this statute must identify an individual employed by or part of the noticing entity, and may not simply refer to the entity’s legal counsel.

The central provision of Proposition 65 is section 25249.6, which provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (Health & Saf. Code §25249.6.) Proposition 65 authorizes citizen suits to enforce the provisions of the act, contingent on the citizen enforcer providing the Attorney General, district attorneys, and city attorneys, as well as the alleged violator, a 60-day notice of the violation, and no public attorney prosecuting an action in that time. (Health & Saf. Code § 25249.7(d).) The statute itself does not set forth any requirements for this notice, but subsequently enacted regulations describe the information which must be included in a 60-day notice. (27 Cal. Code Regs. § 25903.) Administrative regulations are generally accorded great weight in construing initiative measures. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 246.) These regulations state, in relevant part:

(a) For purposes of Section 25249.7(d) of the Act, "notice of the violation which is the subject of the action" (hereinafter "notice") shall mean a notice meeting all requirements of this section. No person shall commence an action to enforce the provisions of the Act "in the public interest" pursuant to Section 25249.7(d) of the Act except in compliance with all requirements of this section.

(b) Contents of Notice.

(1) General Information. Each notice shall include as an attachment a copy of "The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary" (see Appendix A) prepared by the lead agency. This attachment need not be included in the copies of notices sent to public enforcement agencies. A copy of this attachment may be obtained by writing to the Office of Environmental Health Hazard Assessment at P.O. Box 4010, Sacramento, CA 95812-4010.

(2) Description of Violation. A notice shall provide adequate information from which to allow the recipient to assess the nature of the alleged violation, as set forth in this paragraph. The provisions of this paragraph shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics.

(A) For all notices, the notice shall identify:

1. the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity;

2. the name of the alleged violator or violators;

3. the approximate time period during which the violation is alleged to have occurred; and

4. the name of each listed chemical involved in the alleged violation;

(27 Cal. Code Regs § 25903(a)-(b).)

Defendant argues that these regulations require strict compliance with their terms. Plaintiff, in opposition, argues that only substantial compliance is required.

Generally, “[u]nless the intent of a statute can only be served by demanding strict compliance with its terms, substantial compliance is the governing test.” (In re K.H. (2022) 84 Cal.App.5th 566, 603.) “[S]trict compliance with a statute is warranted when … (1) “the Legislature has provided a detailed and specific mandate” …, or (2) “the intent of [the] statute can only be served by demanding strict compliance with its terms.” (Prang v. Los Angeles County Assessment Appeals Board No. 2 (2020) 54 Cal.App.5th 1, 19-20.) With respect to the intent of the statute, “even when a statute uses ‘mandatory’ terms, substantial compliance with statutory directives will suffice if the purpose of the statute is satisfied.” (Manderson-Saleh v. Regents of Univ. of Cal. (2021) 60 Cal.App.5th 674, 703; see also Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1332-1333 [“Where there is compliance as to all matters of substance[,] technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form.”].)

Defendant argues that subparagraph (2)(A)(1) of subdivision (b), which mandates that the notice state “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity,” is subject to strict compliance because the regulation includes specific language in this subparagraph. Defendant contrasts this requirement with adjacent language, such as subparagraph (2)(A)(3), which only requires that the notice state the approximate period during which the violation is alleged to have occurred. Subdivision (a) of section 25903 appears to support this position, as it contains a specific mandate that “[n]o person shall commence an action to enforce the provisions of [Proposition 65] except in compliance with all requirements of this section.” (27 Cal. Code Regs. § 25903(a).) However, subdivision (b)(2) states that its provisions “shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics.” (Id. § 25903(b)(2).)

No appellate authority has specifically addressed whether strict compliance is required with respect to subparagraph (2)(A)(1). Moreover, although several appellate opinions have addressed the sufficiency of the contents of 60-day-notices more generally, none have directly stated that strict compliance with these regulations is required. For example, in Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, the Court of Appeal declined to address whether strict compliance with the notice regulation is required because the 60-day-notices did not even meet the standard of substantial compliance advocated by the plaintiff, but were instead wholly inadequate pro forma notices. (Yeroushalmi, supra, 88 Cal.App.4th at 750.) Another opinion, Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, describes the 60-day-notice rule as a rule of strict compliance in dicta, but cited no authority for that characterization, and appears to contradict itself by saying the rule has been met if the notice “is served on all intendent actors, is substantively sound, and all the purposes of providing it are fulfilled.” (Center for Self-Improvement & Community Development, supra, 173 Cal.App.4th at 1555-56.)

As explained in the Final Statement of Reasons propounded by the Office of Environmental Health Hazard Assessment and cited by both parties, a notice that fails to comply with section 25903 “does not confer upon a private person the authority to commence an action under Health and Safety Code section 25249.7(d).” (Defendant’s RJN Exh. 11. pp. 4-5.) With respect to Paragraph (b)(2)(A)(1), the Final Statement of Reasons explains simply that “[i]dentification of the party giving the notice is needed to give the receiving parties an opportunity to contact the noticing party to resolve the issues raised in the notice and to identify who will be entitled to pursue a civil action.” (Defendant’s RJN Exh. 11 p.8.)

Plaintiff, in opposition, relies on this explanation and the prefatory language in subdivision (b) to argue that the notice requirement is satisfied with respect to subparagraph (b)(2)(A)(1) if the notice provides sufficient information to permit interested parties to contact the noticing party to informally resolve the issues raised. Thus, Plaintiff argues, strict compliance with the literal words of the regulation is not necessary so long as the intent of the regulation is satisfied. In response, Defendant relies on Hallstrom v. Tillamook County and its progeny examining federal statutes with pre-suit notice requirements, such as the Resource Conservation and Recovery Act. (See, e.g., Hallstrom v. Tillamook County (1989) 493 U.S. 20.) It is true that ““[w]hen legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the identical language, it will ordinarily be presumed that the [framers] intended that the language as used in the later enactment would be given a like interpretation.” (Yeroushalmi, supra, 88 Cal.App.4th at 748-49.) However, close examination of Hallstrom reveals that the holding in that case was not concerned with the technical requirements of a pre-filing notice, but whether the complete failure to give notice to the EPA or the State in which the violation occurred could be excused or cured after the fact. (Hallstrom, supra, 493 U.S. at 23-24.) The Supreme Court categorically rejected this argument, and refused to allow an exception in equity because the procedural default was “caused by petitioners’ failure to take the minimal steps necessary to preserve their claim.” (Id. at 26-27.) Here, however, the dispute pertains to the sufficiency of the contents of the notice, not whether notice was given to all necessary parties before filing suit. Hallstrom and its progeny are therefore of little utility here.

Defendant also argues in reply that Plaintiff is collaterally estopped from arguing that strict compliance with the regulation is not required because this issue was already litigated in a separate Proposition 65 enforcement action against this Defendant. Collateral estoppel, also known as “issue preclusion,” bars “relitigation of issues argued and decided in prior proceedings.” (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481, citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Issue preclusion applies when: “(1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” (Hensel Phelps Construction Co. v. Department of Corrections & Rehabilitation (2020) 45 Cal.App.5th 679, 695.) Defendant contends that the Superior Court for the County of Alameda recently dismissed an action by Environmental Health Advocates, Inc. against this Defendant, finding that section 25903 requires strict compliance and that the operative notice did not provide sufficient contact information for the noticing entity. (See Defendant’s Supplemental RJN Exhs. 18-22.)

Defendant claims that Plaintiff should be held in privity with EHA and precluded from arguing this issue because both entities brought suits in the public interest, relying on Consumer Adv. Group v. Exxonmobil Corp. (2008) 168 Cal.App.4th 675.) As the Court of Appeal stated in that case:

In the context of a res judicata determination, privity “refers ‘”to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is ‘sufficiently close’ so as to justify application of the doctrine of collateral estoppel."'" (Rodgers v. Sargent Controls Aerospace (2006) 136 Cal.App.4th 82, 90-91 [ 38 Cal.Rptr.3d 528].) "`[T]he determination of privity depends upon the fairness of binding appellant with the result obtained in earlier proceedings in which it did not participate. [Citation.] "’Whether someone is in privity with the actual parties requires close examination of the circumstances of each case.'"'" (Id. at p. 91.) "This requirement of identity of parties or privity is a requirement of due process of law." (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 874 [ 151 Cal.Rptr. 285, 587 P.2d 1098].)

(Consumer Advocacy Group, supra, 168 Cal.App.4th at 690-91) The Court of Appeal concluded that the Plaintiff—this Plaintiff, in fact—was in privity with the plaintiff in a prior suit which had entered into a settlement agreement concerning many of the same violations, because both plaintiffs were standing as representatives of the public interest. (Id. at 692-94.) The Court of Appeal then found, based on the circumstances of that case, including the pending settlement of factual claims, that there was no violation of Plaintiff’s due process rights. (Id. at 694.)

Defendant appears to suggest that this opinion, finding the parties in privity, should be extended to apply to any circumstance where two parties acting in the public interest attempt to litigate any issue, legal or factual, at different times. This interpretation would effectively convert the entire body of trial court rulings on Proposition 65—if not any ruling in an action on behalf of the public interest—into binding precedent for all future enforcement actions. If there is a clearer example of an offense to Plaintiff’s due process rights, the Court cannot conceive of it. Application of the privity doctrine to preclude Plaintiff’s arguments on the legal issue of “strict” versus “substantial” compliance with section 25903 in this action is therefore wholly improper.

After review of the authorities presented and the Final Statement of Reasons accompanying the operative regulation, the Court concludes that the requirements of subparagraph (2)(A)(1) are satisfied if the 60-Day-Notice of Violation provides sufficiently clear contact information that enables the receiving party to make direct contact with the noticing party, so that the parties may attempt to informally resolve the dispute. This standard harmonizes the language of subparagraph (2)(a)(1) with the prefatory language of paragraph (2), the standards of construction for statutory and regulatory language, the express intent in the Final Statement of Reasons, and the authorities governing Proposition 65 notices discussed above.

Sufficiency of Notice

Defendant argues that the notices presented here do not suffice to satisfy the regulatory requirements of section 25903 because, although the notices identify the entity asserting the claim and provide an address, they do not identify any individuals affiliated with Plaintiff other than Plaintiff’s counsel. (See Defendant’s RJN Exh. 1.) According to Defendant, the absence of this information defeats the purpose of the regulation by precluding Defendant from engaging in direct discussions with Plaintiff to settle this dispute.

Defendant also contends that the absence of this information prevents violators from assessing the legitimacy of the claims. This position is not supported by the Final Statement of Reasons and does not withstand logical scrutiny. The identity of the party bringing notice of the claim does not bear upon the legitimacy of the claim. Moreover, as Plaintiff states in opposition, the concern identified by Defendant is addressed by a separate provision of the enacting statute requiring a certificate of merit executed either by the noticing party or that party’s attorney. (Health & Saf. Code § 25249.7(d)(1).)

In opposition, Plaintiff argues that the requirement for a party’s counsel to sign a certificate of merit is evidence of an intention by the Legislature to permit counsel to serve as the point of contact for a noticing party. Plaintiff also claims that requiring the notice to set forth contact information for Plaintiff’s direct employees would require those employees to engage in the practice of law, force Plaintiff to improperly represent itself, expose Plaintiff’s principal to improper risk, and leave Defendant’s counsel subject to potential violations of the Rules of Professional Conduct. These arguments, even generously construed, rely on extremely strained interpretations of the law of corporations and the Rules of Professional Conduct, and the Court finds them unpersuasive.

In any event, the Court is not convinced that the Notices here are insufficient. The Notices identify the party asserting the claim, Consumer Advocacy Group, Inc., and provide the address at which it is located. The Notices also contain an explicit instruction to contact Plaintiff only through its legal counsel, whose name, address, and phone number is provided. Assuming arguendo that the intent of the rule is to permit discussions between the parties directly, notwithstanding the noticing party’s express contrary instruction, this information is sufficient to enable Defendant to contact Plaintiff.

Conclusion

Accordingly, Defendant Walmart, Inc.’s Motion for Judgment on the Pleadings is DENIED.

Defendant Wal-mart.com, Inc.’s Motion for Judgment on the Pleadings is MOOT.

Motion to Compel Third-Party Responses to Subpoena for Business Records.

Defendant moves to compel Non-Party Facts ‘n Figures Inc. to produce materials responsive to a third-party subpoena for records.

Legal Standard

Code of Civil Procedure section 1987.1(a) states, in relevant part:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc. § 1987.1(a).) There is no meet and confer requirement in section 1987.1. There is also no requirement for a separate statement when no response has been provided to the request for discovery. (Cal. Rules of Court Rule 3.1345(b)(1).) Nor is there any necessity to show good cause for production of documents in connection with a deposition subpoena. (Code Civ. Proc. § 2020.510(b); Terry v. SLICO (2009) 175 Cal.App.4th 352, 358.)

Analysis

On November 8, 2023, Defendant personally served Facts ‘n Figures, Inc. with a subpoena for business records seeking materials pertaining to a Consumer Behavior Research survey regarding the plastic suction cup that is the basis for this action. (See Declaration of Samantha K. Burdick ISO Mot. ¶ 2, Exh. A.) Defendant contends that FNF has not responded to the subpoena to date. (Id. ¶ 4.) However, on November 22, 2023, Defendant received objections to the requests for production from Plaintiff’s counsel which identify themselves as “Plaintiff’s Objections.” (Id. ¶ 5, Exh. C.) These responses also stated, however, that the responding party would produce responsive documents, as if the response was presented by FNF. (Id.) Defendant subsequently contacted FNF’s personnel directly, and was informed by FNF’s CEO on December 15, 2023 that it was represented by Yeroushalmi & Yeroushalmi—Plaintiff’s counsel. (Declaration of Gregory S. Berlin ISO Mot. Exh. C.)

Defendant argues that the objections received on November 22 are invalid because they were made by Plaintiff, whom Defendant claims does not have standing to object to a third-party subpoena except via a Motion to Quash pursuant to Code of Civil Procedure section 1987.1. Defendant’s justification for this position is unreasonable: at the time the motion was filed, FNF’s Chief Executive Officer had informed Defendant in unambiguous terms that Yeroushalmi & Yeroushalmi, Plaintiff’s counsel of record, was also FNF’s legal counsel. This conversation transpired after Defendant had received objections from Plaintiff’s counsel which, despite styling themselves as “Plaintiff’s Objections,” were structured, by Defendant’s own admission, as responses on behalf of FNF. (Burdick Decl. ¶ 5, Exh. C.) This combination of events should have sufficed to put Defendant on notice that FNF had in fact responded to the subpoena by presenting objections through its counsel within the time required. Defendant’s attempts to confuse the issue in its reply papers by claiming that Plaintiff’s assistant counsel, Masoud Masjedi, subsequently denied that Plaintiff’s attorneys were also representing FNF is irrelevant and unpersuasive. First, Attorney Yeroushalmi flatly contradicted Attorney Masjedi that same day by stating clearly that FNF is represented by Plaintiff’s counsel (Declaration of Omar Morquecho ISO Reply Exh. A.) Second, Attorney Masjedi’s statements were made on December 20, 2023, after this motion was filed. (Id.)

Turning to the substance of the objections to the subpoena, Defendant’s motion fails to address the objections raised on FNF’s behalf in any substantial detail, thus depriving the responding party of a fair opportunity to address Defendant’s challenge to the objections. More damningly, Defendant’s separate statement entirely neglects these objections, in violation of Rule of Court 3.1345. For this reason alone, the Court has discretion to deny the motion in its entirety. (See, e.g., Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) That discretion is exercised here.

Conclusion

Accordingly, Defendant’s Motion to Compel Compliance with Third Party Subpoena for Business Records is DENIED.

CONCLUSION:

Accordingly, Defendant Walmart, Inc.’s Motion for Judgment on the Pleadings is DENIED.

Defendant Wal-mart.com, Inc.’s Motion for Judgment on the Pleadings is MOOT.

Defendant’s Motion to Compel Compliance with Third Party Subpoena for Business Records is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 15, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.