Case Name: Kathy Hughes v. Target Corporation, et al.

Case No.: 17CV317411

Motion to Reconsider and Revoke or Modify Prior Court Order Re: Plaintiff’s Motion to Compel Responses to Set One Inspection and Production to Defendant Target Corporation; and Plaintiff’s Motion to Compel Plaintiff’s Set One Special Interrogatories to Defendant Target Corporation

Factual and Procedural Background

On October 14, 2015, defendant Target Corporation’s (“Target”) security profiled, approached, and confronted plaintiff Kathy Hughes (“Hughes”) while she was shopping in defendant Target’s store on El Camino Real in Santa Clara, causing plaintiff Hughes to suffer personal injuries. (Second Amended Complaint (“SAC”), ¶GN-1; see also SAC, ¶IT-1.) Defendant Target’s personnel intentionally profiled and confronted plaintiff Hughes because of her race, sex, and/or other unlawful purpose. (SAC, ¶IT-1.) Defendant Target’s in-store management continued engaging plaintiff Hughes. (SAC, ¶IT-1.) Defendant Target was negligent in hiring and/or training their security and management. (SAC, ¶GN-1; see also SAC, ¶IT-1.)

On October 4, 2017, plaintiff Hughes filed a Judicial Council form complaint against defendant Target asserting causes of action for:

(1) General Negligence
(2) Intentional Tort
(3) False Imprisonment
(4) Defamation of Character

On December 18, 2017, plaintiff Hughes dismissed the third and fourth causes of action.

On January 9, 2018, plaintiff Hughes filed a FAC asserting causes of action for:

(1) General Negligence
(2) Intentional Tort

On February 13, 2018, defendant Target filed a demurrer to plaintiff Hughes’s FAC and a motion to strike the exemplary damage allegations from plaintiff Hughes’s FAC.

On May 17, 2018, the court (Hon. Kuhnle) sustained Target’s demurrer to the second cause of action and granted Target’s motion to strike plaintiff Hughes’s claim for exemplary damages.

On May 18, 2018, plaintiff Hughes filed the operative SAC which asserts causes of action for:

(1) General Negligence
(2) Intentional Infliction of Emotional Distress

I. Plaintiff Hughes’s motion for reconsideration is DENIED.

A. Further factual and procedural background.

On or about January 18, 2018, plaintiff Hughes served defendant Target with special interrogatories (“SI”), set one, and a demand for inspection and production of documents (“RPD”), set one.

On or about February 16, 2018, defendant Target served plaintiff Hughes with its responses to SI, set one, and responses to RPD, set one.

Between February 26, 2018 and March 8, 2018, plaintiff Hughes’ counsel and defendant Target’s counsel met and conferred with regard to SI, set one, and RPD, set one, by exchanging letters.

On March 28, 2018, plaintiff Hughes filed (1) a motion to compel defendant Target’s further response to SI, set one, including a request that defendant Target properly verify its response to SI, set one, and a request for monetary sanctions; and (2) a motion to compel defendant Target’s further response to RPD, set one, and production thereof including a request that defendant Target properly verify its response to SI, set one. Plaintiff Hughes also requested monetary sanctions.

On May 24, 2018, the court issued an order granting, in part, and denying, in part, plaintiff Hughes’s motion to compel defendant Target’s further response to SI, set one. The court denied plaintiff Hughes’s motion to compel defendant Target’s further response to RPD.

On June 7, 2018, plaintiff Hughes filed the instant motion to reconsider and revoke or modify prior court order.

B. Request for judicial notice.

In support of her motion for reconsideration, plaintiff Hughes requests judicial notice of various court records in this case. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

Accordingly, the request for judicial notice re: plaintiff Kathy Hughes’[s] motion to reconsider, etc. is GRANTED.

C. Merits.

Plaintiff Hughes seeks reconsideration of the court’s May 24, 2018 ruling pursuant to Code of Civil Procedure section 1008, subdivision (a) which states:

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Plaintiff Hughes has not carried her burden of demonstrating a valid basis for reconsideration. “The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶9:328, p. 9(I)-148 citing Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (Gilberd), et al.) “According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Gilberd, supra, 32 Cal.App.4th at p. 1500.) “The moving party must present ‘a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.’” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Plaintiff Hughes asserts this court (Hon. Kirwan) failed to follow the May 17, 2018 ruling (re: demurrer/motion to strike) made by the Hon. Kuhnle when it made its ruling (re: discovery) on May 24, 2018. In the May 24, 2018, the court denied plaintiff Hughes’s motion to compel defendant Target’s further response to RPD, set one, because plaintiff Hughes “has not adequately demonstrated good cause for production of the documents requested.” As explained in the May 24, 2018 order:

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) 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.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Plaintiff’s naked accusation that this court failed to consider Judge Kuhnle’s ruling is without merit. More importantly, even if credited, the accusation does not amount to “new or different facts, circumstances, or law” justifying reconsideration. Plaintiff Hughes’s citation to Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 586–587, discussing repealed discovery provisions, does not warrant a different result and actually supports the ruling made by this court.

The history of section 2036 indicates that the legislative purpose was to prevent abuse of discovery by requiring the moving party to show that the documents sought to be produced for inspection will aid in his case. [Footnote.] (See Code Civ. Proc., § 2019, subd. (d).) The Legislature did not provide that the documents must be admissible in evidence, [footnote] but only that the trial court be afforded the factual data necessary to make an informed ruling on the issues of good cause. It left to the courts the determination of what specific facts in addition to a showing “of relevance of the information sought to the subject matter of the action” should be required to show “good cause.” (See Louisell, Modern California Discovery, p. 188.) The court’s determination necessarily depends on the facts and issues of the particular case. (See, e.g., Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355; Suezaki v. Superior Court, 58 Cal.2d 166 [23 Cal.Rptr. 368, 373 P.2d 432, 95 A.L.R.2d 1073]; Beesley v. Superior Court, 58 Cal.2d 205 [23 Cal.Rptr. 390, 373 P.2d 454].)

Plaintiff Hughes also apparently takes issue with the court’s failure to address whether plaintiff established good cause for each and every RPD at issue in the prior discovery motion. Plaintiff’s motion sought defendant Target’s further responses to RPD, numbers 4 – 5, 7 – 10, and 13. In the May 24, 2018 ruling, the court discussed whether plaintiff established good cause with regard to RPD, number 4, by way of example, but reached the conclusion that plaintiff did not adequately demonstrate good cause. Again, plaintiff Hughes takes umbrage with this court’s ruling, but has not identified “new or different facts, circumstances, or law” justifying reconsideration.

Unless and until the party moving to compel a further response to RPD demonstrates good cause, the burden does not shift to the responding party to justify objections. Plaintiff Hughes argues further that defendant Target’s responses to the RPD were procedurally defective. Having failed to demonstrate good cause, plaintiff Hughes did not cause the burden to shift. Regardless, plaintiff’s assertion that this court erred is not “new or different facts, circumstances, or law” which would warrant reconsideration. Similarly, plaintiff’s contention that the court erred in its prior ruling with regard to her motion to compel defendant Target’s further response to SI is not a proper basis for reconsideration.

Consequently, plaintiff Hughes’s motion to reconsider and revoke or modify prior court order re: plaintiff’s motion to compel responses to set one inspection and production to defendant Target Corporation; and plaintiff’s motion to compel plaintiff’s set one special interrogatories to defendant Target Corporation is DENIED.