Case Name: Stephen Weekley v. Sima Haririan et al.

Case No; 17CV308326

I. Background
II.

These consolidated actions arise out of an April 17, 2015, incident in which a motor vehicle driven by defendant Sima Haririan (“Haririan”) struck and injured plaintiff Stephen Weekley (“Plaintiff”) and others as they were exiting a store owned and operated by Trader Joe’s Company, Inc. (“Trader Joe’s”). Relevant to the present motion, Plaintiff sued Haririan and her husband Abdolaziz Arjomand (collectively, “Defendants”), as well as Trader Joe’s, for damages associated with the accident. Trader Joe’s filed a cross-complaint against Defendants.

Before the Court is Defendants’ motion to compel deposition testimony of Trader Joe’s employee Fonda Burke (“Burke”), Trader Joe’s persons most knowledgeable (“PMKs”), and Trader Joe’s store managers.

Discovery Dispute

On June 26, 2019, Defendants served a deposition notice on Trader Joe’s, setting a date of July 26, 2019, for Burke’s testimony. Thereafter, Trader Joe’s filed a motion for protective order, seeking to block Defendants from deposing Burke, which the Court denied on September 12, 2019. Since that time, Burke’s deposition has not been rescheduled and as of the filing of the present motion, Trader Joe’s did not respond to Defendants’ attempts to schedule. In response to this motion, Trader Joe’s states it has since offered Burke for testimony and proposed two dates in December 2019.

Also, in response to a notice of deposition served in November 2018, seeking entity testimony on seven categories of information, Trader Joe’s designated two PMKs. The deposition of PMK Stephen Eldridge (“Eldridge”) was ultimately taken on October 15, 2019, in Denver, Colorado. However, Eldridge was unable to testify as to any of the seven PMK categories. Furthermore, while Trader Joe’s designated a second PMK, Steve Hebda (“Hebda”), for certain categories, it has never agreed to schedule his deposition. In response to this motion, Trader Joe’s states Hebda no longer works for the company.

Finally, despite Defendants’ October 9, 2019, request to produce Trader Joe’s store managers for depositions, Trader Joe has not responded.

III. Motions to Compel Compliance with Deposition Notices
IV.

Defendants move to compel compliance with deposition notices served on Trader Joe’s seeking to depose Burke, the identified PMKs, and the store managers. The motion is made pursuant to Code of Civil Procedure section 2025.450, subdivision (a) .

Section 2025.450, subdivision (a) provides that “[i]f after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination or to proceed with it…the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” A valid objection is one based on an error or irregularity in the deposition notice. (§ 2025.410, subd. (a).) If a party objects on other grounds, the party must nevertheless appear for the deposition as noticed, unless the party files a motion to stay the taking of the deposition and quashing the notice or for a protective order. (See §§ 2025.280, subd. (a), 2025.410, subd. (c), 2025.420.)

Motion to Compel Deposition of Store Managers

As a preliminary matter, Trader Joe’s argues that Defendants failed to meet and confer prior to filing the motion to compel deposition of the store managers.

However, this argument overlooks a procedural step missed by Defendants, as it appears a notice of deposition was never served requesting the store managers’ testimony. Instead, in a letter to counsel for Trader Joe’s, Defendants merely inquired “informally” about deposing the store managers. (Dec. of A. Lauderdale, Exhibit E.) The letter goes on to state “Since we have had no reply, we will be sending out deposition notices shortly.” (Ibid.) Likewise defense counsel’s declaration merely states that he “asked counsel to produce the current and former store managers… I never received a reply.” (Id. at ¶ 3.) However, the papers do not include a deposition notice seeking testimony from the store managers and it appears that none was ever served. As a result, the motion to compel the managers’ attendance and testimony is premature and/or procedurally improper as it was not lodged “after service of a deposition notice….”

Consequently, the motion to compel deposition testimony of Trader Joe’s store managers is DENIED.

Motion to Compel Deposition of Fonda Burke

With respect to Burke, she did not appear at the originally designated date for the deposition. However, Trader Joe’s filed a motion for protective order seeking to block her deposition, which was subsequently denied by the Court.

Counsel for Trader Joe’s states that since the motion was filed they “agreed to produce Fonda Burke for deposition and offered dates for her deposition.” (Opp. to Mot. to Compel at ¶ 1.) Defendants confirm receipt of a message from counsel proposing dates of December 11, or December 12, 2019, for her testimony. (Reply Brief, 2:6-7, fn. 1.) They also state this is “too little cooperation, and too late” and that they “need a court order…” (Ibid.)

To compel compliance with a deposition notice, the moving party must show (1) he or she served the deponent with the notice; (2) no valid objection was asserted; and (3) the deponent failed to appear and the moving party inquired as to the nonappearance. (§ 2025.450, subd. (a); Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel… make a good faith attempt to resolve the issue.” (Ibid.)

Defendants made three attempts to schedule Burke’s testimony following the hearing on the motion for protective order, lodged after service of the notice of deposition, but they did not receive a response. The present motion was filed, and thereafter Trader Joe’s responded by email on November 19, 2019, offering two December dates for Burke’s testimony. However, Defendants’ reply brief merely indicates its dissatisfaction with the late response and does not attest to any further efforts to make a good faith attempt to resolve the issue, a response inconsistent with the policy of informal resolution of discovery disputes.

Nonetheless, Defendants have served a notice of deposition, which has not been challenged by valid objection, and Trader Joe’s must be compelled to comply. Counsel is admonished to make good faith attempts to resolve such issues in the future.

Accordingly, the motion to compel the deposition of Fonda Burke is GRANTED. Ms. Burke shall appear for deposition within 20 days of this Order, unless otherwise agreed, at a mutually determined time.

Motion to Compel Deposition of PMKs

Defendants also move to compel compliance with the deposition notice of Trader Joe’s PMKs.

Pursuant to section 2025.230, “a 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 matters described by the notice. “[I]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witness.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395-1396, citations omitted.) The entity is not required to produce former employees in response to the notice. (Ibid.)

In its reply brief, Trader Joe’s objects to the production of a PMK with knowledge of site safety across its chain of stores. However, this objection is not properly before the court. A valid objection is one based on an error or irregularity in the deposition notice. (§ 2025.410, subd. (a).) If a party objects on other grounds, the party must nevertheless appear for the deposition as noticed, unless the party files a motion to stay the taking of the deposition and quashing the notice or for a protective order. (See Code Civ. Proc., §§ 2025.280, subd. (a), 2025.410, subd. (c), 2025.420.) Thus, this objection is overruled as it was not lodged in a code-compliant manner.

Turning to the merits, Trader Joe’s originally identified two PMK’s for the seven categories of testimony. Only Eldridge appeared, and he was unable to testify as to any of the categories, including the one for which he was designated the PMK. Likewise, PMK Hebda has not been produced. However, he apparently is no longer employed by Trader Joe’s, a fact that Trader Joe’s seemingly disclosed for the first time in its opposition brief to the present motion.

Thus, Trader Joe’s has failed to produce a PMK in response to a notice of deposition, and despite numerous inquiries by Defendants, and has not made a good faith attempt to resolve the issues. To the extent it can identify a current employee qualified to respond to the identified categories, it must do so.

Accordingly, the motion to compel the deposition attendance of Trader Joe’s PMK is GRANTED. The PMK shall appear for deposition within 20 days of this Order, unless otherwise agreed, at a mutually determined time.

V. Sanctions
VI.

Defendants make a code-compliant request for monetary sanctions against Trader Joe’s, pursuant to section 2023.030, for misuse of the discovery process. They request $6,045.93, including costs associated with travel to Denver to depose PMK Eldridge which constitutes approximately $5,100 of the alleged costs.

However, the accompanying memorandum of points and authorities fails to support the request with reference to facts and relevant law regarding misuse of the discovery process, specifically the nature of the misuse in this case. In fact, the memorandum merely cites language from section 2025.450, subdivision (c)(1), as the basis for the sanction award, in contradiction of the notice.

Accordingly, the request for monetary sanctions is DENIED.