Case Name: Daphne Smith v. GGP, Inc., et al.

Case No.: 2015-1-CV-283003

(1) Motion for Sanctions [CCP 2023.010 et seq.]
(2) ABM’s Motion to Compel Attendance of the Deposition of the Person Most Knowledgeable for Eastridge Shopping Center, LLC; Compel the Production of Documents at the Deposition of the Person Most Knowledgeable for Eastridge Shopping Center, LLC

Factual and Procedural Background

On July 14, 2015, plaintiff Daphne Smith (“Plaintiff”) filed a complaint against Eastridge Shopping Center, LLC (“Eastridge”), among others, to recover for injuries she sustained on July 23, 2013 at Eastridge Mall based upon allegations that defendants failed to properly secure the hand rail on a stairway.

On December 17, 2015, Plaintiff filed an amendment to the complaint substituting ABM Onsite Services – West, Inc. (“ABM”) for a Roe defendant.

On November 21, 2017, ABM filed a cross-complaint against cross-defendant AlliedBarton Security Services, LP (“AlliedBarton”) for equitable indemnity, apportionment of fault, and declaratory relief.

I. Defendant/ cross-complainant Eastridge’s motion for sanctions is DENIED.

A. Discovery dispute.

On July 29, 2017, Eastridge served ABM with a notice of deposition and request for production of documents of the person most qualified (“PMQ”) to testify on eight categories. On October 11, 2017, ABM produced a PMQ for deposition as to categories 7 and 8 only. On October 26, 2017, the court (Hon. Folan) issued an order granting Eastridge’s motion to compel ABM’s PMQ to testify on all categories set forth in the notice of deposition. The court (Hon. Folan) also ordered ABM and its counsel to pay Eastridge monetary sanctions of $1,246.

On April 6, 2018, ABM produced an individual named Robert Partida (“Partida”) as its PMQ to testify as to categories 1 – 6. According to Eastridge, Partida had no knowledge of the requested categories and made little or no effort to attempt to become knowledgeable. Eastridge’s counsel met and conferred with ABM’s counsel, offering to allow ABM to cure the defects in Partida’s testimony by providing an additional deposition and payment by ABM of all attorney’s fees and costs incurred by Eastridge.

On August 6, 2018, Eastridge filed the instant motion for sanctions against ABM.

B. Merits.

“Misuses of the discovery process include, but are not limited to, the following: … Failing to respond or to submit to an authorized method of discovery[;] Disobeying a court order to provide discovery.” (Code Civ. Proc., §2023.010, subds. (d) and (g).)

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.
(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
(d) The court may impose a terminating sanction by one of the following orders:
(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., §2023.030.)

Terminating sanctions should only be applied after lesser sanctions have proven ineffective at compelling compliance. (R.S. Creative Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)). An award of sanctions is discretionary, and the court should consider a variety of factors in exercising this discretion. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Super. Ct. (1991) 231 Cal.App.3d 481, 490, citing Motown Records Corp. v. Super. Ct. (1984) 155 Cal.App.3d 482, 489.) The sanctions imposed must be tailored to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)

Eastridge likens the facts here to those in Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395–1397 where the court wrote:

Code of Civil Procedure section 2025, subdivision (d)(6), provides that if a deposition notice describes matters on which examination is requested, “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.” As one treatise explains, “[t]he purpose of this provision is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking. E.g., in a product liability suit, who in the engineering department designed the defective part?” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶ 8:474, p. 8E-18.) The authors of the treatise explain that “[u]nder former law, the entity was required only to designate ‘one or more’ officers or employees to testify on its behalf. This permitted considerable ‘buck-passing’ and ‘I don’t know’ answers at deposition.” (Ibid.) Under the current law, “[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!” (Id., ¶ 8:475, p. 8E-18.)

It is apparent from the record in this matter that the individuals selected by ICG to represent the company at the depositions knew very little about the topics specified in the notices. That is understandable since, as ICG explained, many of the employees who supervised or worked with petitioners are no longer employed by the company. What cannot be so easily overlooked was the cavalier attitude displayed at the depositions concerning information that should have been readily available to the witnesses. Haley, as a human resources manager, should, for example, have been able to identify a personnel file when one was shown to her-particularly since it was the personnel file she was asked to produce. In addition, she should have been familiar enough with the contents of the file that when a specific question was asked-such as when the subject employee was hired or terminated or what positions he held at various times-she could answer by referring to information contained in the file. Similarly, in her position, she should have had knowledge about general employment policies, such as the company’s policy toward terminating workers who were out on disability because they were injured on the job, or whether termination decisions made in field offices had to be examined or approved by human resources personnel.

We are particularly concerned about the fact that the witnesses appeared at depositions at which document requests were made with no documents in their possession and no knowledge of whether or not documents responsive to the requests existed anywhere in the company’s files. Certainly, no single person is expected to be familiar with the total contents of a corporation’s files. When a request for documents is made, however, the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held. We are sympathetic to the fact that ICG’s counsel was handicapped by the loss of personnel and the pending bankruptcy proceedings. But that did not justify appearing at the depositions without documents that were readily available, such as Boria’s personnel file or the current footprint map, with no explanation as to whether other responsive documents existed or when they would be produced.

…

The trial court specifically found that petitioners “had the right to ask the person most knowledgeable to bring in all of the documents that they felt are supportive” and that “the defense was wrong in not reproducing for the deposition the documents that they say they had previously produced.”4 Thus, there was no basis for denying the motion to compel in this regard. ICG should have been ordered to bring their witnesses back to the depositions with the documents requested and with proof that the witnesses had undertaken some effort to familiarize themselves with the areas of their supposed “knowledge.”

Here, Eastridge contends Partida’s testimony is equally deficient. In many instances, Partida testified he did not have knowledge and demonstrated little or no effort in obtaining knowledge. In opposition, ABM argues Partida was the PMQ and that more qualified and knowledgeable individuals no longer work for ABM. ABM’s Assistant Liability Manager, Karina Stark, tasked with locating witnesses and documents in response to discovery, declares that the district managers who oversaw ABM’s contract with Eastridge were no longer employed and the current district manager and branch manager were not employed at the time ABM serviced the account. The individual who signed the Master Continuing Services Contract with Eastridge was no longer employed by ABM. Partida is the only individual at ABM in closest proximity to the South Bay Branch that was employed with ABM at the time of ABM’s contract with Eastridge who also had experience dealing with the scope of services for similar contracts during the time the Eastridge contract was in effect. Stark also assisted defense counsel in locating documents responsive to Eastridge’s document request.

The court does not find ABM’s conduct willful disobeys the court’s order. The court finds ABM acted in good faith in identifying and producing Partida as its PMQ and in providing documents responsive to Eastridge’s request for production of documents. Accordingly, Eastridge’s motion for sanctions is DENIED.

II. Defendant/ cross-complainant ABM’s motion to compel is GRANTED, in part, and DENIED, in part.

A. Discovery dispute.

On July 27, 2018, ABM and Ace American Insurance Company (“Ace”) served a “Notice of Taking the Deposition of the Person Most Knowledgeable of Defendant/ Cross-Complainant Eastridge Shopping Center, LLC and Request for Production of Documents” with a scheduled deposition date of August 14, 2018.

On August 6, 2018, Eastridge served “Objections to Notice of Taking the Deposition of the Person Most Knowledgeable of Defendant/ Cross-Complainant Eastridge Shopping Center, LLC and Request for Production of Documents.”

Between August 7, 2018 and August 10, 2018, ABM and Ace’s counsel met and conferred with Eastridge’s counsel, but Eastridge would not agree to produce a PMQ before the discovery cutoff or to continue the discovery cutoff for the deposition only.

On August 14, 2018, ABM made an ex-parte application to compel Eastridge’s PMQ’s attendance at deposition and to compel production of documents at deposition. Alternatively, ABM sought an order shortening time to hear the motion to compel. The court issued an order shortening time and set the hearing on ABM’s motion to compel for August 30, 2018.

B. Merits.

“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).)

1. Meet and confer.

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., §2025.450, subd. (b)(2).)

Eastridge argues, among other things, that ABM failed to adequately meet and confer. “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

Eastridge contends meet and confer efforts by ABM were inadequate and this motion could have been avoided if ABM had not waited until the eve of discovery cut-off. Trial in this matter is scheduled for October 1, 2018. ABM’s meet and confer efforts are detailed in the accompanying declaration of ABM’s counsel. Although close to the trial date, ABM timely noticed the deposition. Eastridge also argues ABM has already had an opportunity to depose Eastridge’s PMQ on April 28, 2016 and August 28, 2016. However, Code of Civil Procedure section 2025.610 only places a limitation on the number of times a natural person may be deposed. In reviewing the meet and confer efforts, the court finds ABM made a reasonable and good faith attempt under the circumstances.

2. Separate statement.

Eastridge argues ABM’s motion to compel should be denied because ABM has not provided a separate statement setting forth each of the categories of testimony required with Eastridge’s response thereto as required by California Rules of Court, rule 3.1345. The court does not agree with Eastridge’s contention that a separate statement is necessary here where Eastridge only filed an objection and did not appear at deposition. The lack of a separate statement is not a basis for denial in this instance.

3. Subject matter of deposition.

Eastridge objected, in part, to some of the subject matter identified in the notice of deposition. In particular, three of the six categories of subject matter identified in the notice of deposition relate to facts in support of Eastridge’s cross-claims. Eastridge cites Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 where the court held that legal contention questions were improper in the context of a deposition. While this may be a proper basis for objecting to and/or refusing to answer specific questions posed at the deposition, it is not a proper basis for Eastridge’s refusal to attend deposition altogether.

Eastridge contends the three remaining categories which ABM intended to discuss at deposition concern the terms of the contracts at issue between the parties and that information can be found by looking at the contracts themselves. This is not a proper basis for refusing to attend deposition. Eastridge argues further that these three remaining categories in ABM’s notice of deposition fail to identify the subject matter with reasonable particularity as required by Code of Civil Procedure section 2025.230. If Eastridge is concerned that questions posed at deposition will go beyond the scope of the subject matter identified, Eastridge may assert that objection during the deposition and/or refuse to answer specific questions, but the lack of particularity is not a valid reason for refusing to attend.

4. Location of deposition.

ABM sought to depose Eastridge’s PMQ in San Jose. ABM relied on Code of Civil Procedure section 2025.250, subdivision (d) which states, “If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization.” ABM proffers Eastridge’s Statement of Information which identifies Eastridge’s business address in Chicago, Illinois.

“A corporation or other entity must designate its ‘most qualified’ officers or agents to testify on its behalf (CCP §2025.230 [ ]). It is an open question whether the designated agent who resides outside the state can be compelled to attend in the state on the theory it is the entity’s deposition that is being taken. This issue was expressly not addressed in Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1125, fn. 20.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The
Rutter Group 2018) ¶8:631.1, p. 8E-83.) In dicta, the court in I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 282 suggests a trial court has “no power … to compel a deposition of [a] nonresident PMQ.”

Here, Eastridge states that it has not owned the subject premises since 2016 and no longer employs anyone in California. Eastridge identified an employee who could testify on some of the categories in ABM’s notice of deposition, but that employee resides in Arizona. “A party desiring to take the deposition of a natural person who is a party to the action or an officer, director, managing agent, or employee of a party may make a motion for an order that the deponent attend for deposition at a place that is more distant than that permitted under Section 2025.250. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.260, subd. (a).)

While it is not entirely clear, the court will treat ABM’s motion as a motion to compel the attendance of Eastridge’s PMQ at deposition at a place more distant than permitted under Section 2025.250. In the opposition, Eastridge states that Paul Cabrera (“Cabrera”), Senior Director of National Operations for a related entity will appear for deposition in person or by phone in Arizona as to categories 1 and 2 in ABM’s notice of deposition. To the extent Cabrera is required to attend deposition in California, Eastridge requests ABM pay for deponent’s expenses including air fare, ground transportation, and one night lodging.

In this court’s opinion, Eastridge has not stated a valid basis for refusing to attend a deposition. Accordingly, ABM’s motion to compel the attendance at deposition of Eastridge’s PMQ is GRANTED. Eastridge’s PMQ, Cabrera, shall appear for deposition within 10 days of entry of this order. The deposition shall occur: (1) in a location within 75 miles of Cabrera’s residence in Arizona; or (2) by telephone; or (3) in San Jose, California on the condition that ABM pay for Cabrera’s expenses for round trip air fare, ground transportation, and one night lodging.

5. Production of documents at deposition.

“The motion [to compel deponent’s production of any document] shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., §2025.450, subd. (b)(1).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)

In the notice of deposition, ABM identified six categories of subject matter and asked Eastridge to produce “Any and all documents related to the above referenced categories of knowledge.” As noted above, the six categories included the terms of the contracts at issue between the parties and “any and all facts” supporting three of Eastridge’s cross-claims.

In its separate statement, ABM contends each of the six categories is directly relevant to Eastridge’s cross-claims against ABM and Ace. While it is debatable whether ABM has adequately demonstrated good cause, the court finds the request to be impermissibly overbroad.

Accordingly, ABM’s motion to compel the production of documents at the deposition of Eastridge’s PMQ is DENIED.