Robert Zarate v. Wal-Mart Stores, Inc.		CASE NO. 113CV246083
DATE: 24 October 2014	TIME: 9:00	LINE NUMBER: 19

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motion of Defendant Wal-Mart Stores, Inc. (“Defendant’”) seeks the following: 1) Staying the taking of depositions and Quashing the deposition notices of Wal-Mart Stores’ Personnel; 2) Reconsideration of Court Order from Plaintiff’s Ex Parte Hearing on 30 September 2014; and 3) a Protective Order Precluding the Depositions of PMQ’s Noticed by Plaintiff was argued and submitted.

Plaintiff Robert Zarate (“Plaintiff”) did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

1. Statement of Facts.

This motion arises out of a negligence claim against Defendant’s counsel on 10 May 2013. Plaintiff alleged that he slipped on a yellow dog toy and fell on the floor in a Wal-Mart store, resulting in injuries on 7 January 2012. Plaintiff alleges damages including wage loss, past hospital and medical expenses, future medical expenses, compensatory damages, loss of earning capacity and general damages.

1. Discovery Dispute.

On 6 August 2014, Defendant’s counsel filed a motion for summary judgment for this case.

On 16 September 2014, after a private mediation as well as a civil settlement conference, Plaintiff’s counsel served deposition notices for employees and PMQ of Defendant to take their depositions on 26 September 2014.

On 17 September 2014, Defendant’s counsel faxed and emailed correspondence to Plaintiff’s counsel indicating that Defendant’s counsel objects to Plaintiff’s counsel noticed depositions in light of the motion for summary judgment hearing scheduled for 21 October 2014 and requested that the depositions be noticed for a date after the Court decides on the motion.

On 23 September 2014, Plaintiff’s counsel called the Defendant’s counsel for available dates in October for PMQ depositions. During the conversation, Plaintiff informed Defendant’s counsel that PMQ deposition for flooring was requested.

On 24 September 2014, Defendant’s counsel served objections to PMQ depositions to Plaintiff.

On 25 September 2014, Plaintiff’s counsel faxed a letter stating that they had not heard anything from counsel regarding PMQ depositions from Defense counsel.

On 26 September 2014, Defendant’s counsel faxed a letter to Plaintiff’s counsel asking for an explanation in writing why each of the categories of PMQ depositions is being pursued.

On 30 September 2014, Plaintiff’s counsel moved for an ex parte order. The Court (Judge Lucas) ordered the following: 1) the Motion for Summary Judgment Hearing is continued from 21 October 2014 to 9 December 2014 at 9am; 2) Plaintiff’s Opposition shall be filed and served by 25 November 2014; 3) the employee and PMQ Depositions (originally noticed for 26 September 2014) must be completed by 22 October 2014; and 4) the Trial Setting Conference set on 21 October 2014 is continued to 9 December 2014. (See Exhibit 11)

Defendant’s counsel stated that they made multiple requests and calls to Plaintiff’s counsel to obtain the order. Defendant’s counsel did not receive the Court order via email until 15 October 2014 with deposition notices for PMQ depositions on 20 October 2014.[3]

On 16 October 2014, Defendant moved for an ex parte order. The Court ordered the following:

1. Motion for Summary Judgment Hearing date and Trial Setting Conference is continued to 3 February 2015 at 9am;
2. The Employee and PMQ Depositions must be completed by 20 November 2014;
3. Defendant’s Motion to obtain an order 1) Staying the taking of depositions and quashing the deposition notices of Wal-Mart Personnel; 2) granting reconsideration of the Court’s order from Plaintiff’s ex parte hearing on 20 September 2014, and 3) obtaining a protective order precluding the depositions of PMQ’s noticed by Plaintiff will be heard on 24 October 2014; and
4. Plaintiff may file responses by 22 October 2014.

III.     Analysis.

1. Motion to Stay and Quash Deposition of Wal-Mart Personnel

After serving written objections, as part of a motion to quash the deposition, a party may move to stay a deposition pending the determination of the validity of the objections. CCP §2025.410(c). While the court considers this motion, the deposition is automatically stayed. Id. This motion must be accompanied by a meet and confer declaration as defined under CCP §2016.040. Id.

A meet and confer declaration must show the moving party’s reasonable and good faith attempts to resolve the dispute prior to filing the motion. CCP §2016.040. Such a declaration should address the factors the courts uses to determine reasonableness and good faith. (Steward v. Colonial W. Agency Inc. (2d Dist. 2001) 87 Cal.App.4^th 1006, 1016; Obregon v. Superior Ct. (2d Dist.1998) 67 Cal.App.4^th 424, 431.) These factors include the size and complexity of the matter, the history of the litigation, the nature of the dispute, the discovery requested, the prospects for success or any other factors that might be relevant. (Steward v. Colonial W. Agency Inc., supra, 87 Cal.App.4^th at 1016.)

Here, in Defendant’s moving papers does provide cognizant reasoning and its tone is such that this appears to be a reasonable and good faith attempt to resolve the matter without requiring the Court’s intervention. The Court finds that the meet and confer attempt was valid.

1. Motion to Quash

The court may, “upon motion reasonably made by a [party] … make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare ….” (Code Civ. Proc., § 1987.1, subds. (a) and (b)(1).) The party objecting to a discovery request bears the burden of explaining and justifying its objection. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal. 4th 245, 255.)

Under CCP § 2025.410 (a) states “any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

Supporting documents from the Defendant’s moving paper shows that Defendant’s counsel had attempted to meet and confer with Plaintiff’s counsel on multiple occasions to schedule dates availability for the deposition before serving written objections. However, Defendant’s counsel untimely served Plaintiff’s counsel written objections two days prior to the scheduled deposition along with a meet and confer letter. (See Exhibit 4). Because the written objections were served untimely, Defendant’s objections are waived.

In addition, Defendant argues that deposition of employees[4] are burdensome and oppressive on its face as the information sought has already been provided in written discovery responses and documents production and therefore inquiry on this topic at deposition would be duplicative. Furthermore, Defendant argues that the most qualified person concerning the subject accident, WalMart Associate Cordero Eladio, has already been deposed and provided any facts regarding notice that would be necessary. Moreover, Defendant argues that deposition of Person Most Qualified (PMQ) were vague, ambiguous and uncertain as to the scope of the matters.

Relevant evidence is any evidence, including that relating to the credibility of a witness, that has tendency to prove or disprove a disputed fact that is of consequence to the determination of the action. Evid. Code § 210. All relevant evidence is admissible, except if excluded by statute. Evid. Code § 351.

“The discovery laws in California are designed to expedite the trial of civil matters by (1) enabling counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enabling counsel to ‘set at rest’ issues that are not genuinely disputed. [It] necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions.”  Burke v. Superior Court (1969) 71 Cal.2d 276, 280-281.

Here, it appears that Plaintiff’s request to deposition for Defendant’s Personnel and PMQs are relevant as it pertains to the subject matter.

Accordingly, Defendant’s Motion to Quash Deposition Notices of Wal-Mart Stores’ Personnel is DENIED.

1. Motion to Reconsider Prior Court Order from 30 September 2014 ex parte hearing

Defendant bases its motion for reconsideration of the Department 2 Court’s order from 30 September 2014 ex parte hearing on Civil Procedure, § 1008(a) is in opposite to this court’s previous ruling.

Code of Civil Procedure, § 1008(a) provides in pertinent part:

“When an application for an order has been made to a judge, or to a court, and refused, …or granted,…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.”

Motions for reconsideration are governed by CCP section 1008, subdivision (a), which requires that any such motion be (1) filed “within 10 days after service upon the party of written notice of entry of the order” of which reconsideration is sought, (2) supported by new or different facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from the first. (CCP, § 1008, subd. (a).)

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.” (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) According to the plain language of the statute, a court acts in excess of its jurisdiction when it grants a motion to reconsider or renew that is not based upon new or different facts, circumstances, or law. (CCP, § 1008, subd. (e) [“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and . . . [n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”]; see also Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

1. Defendant’s Motion For Reconsideration Fails To Meet §1008(a)’s Standard Of “New Or Different Facts, Circumstances, Or Law.”

Under the plain language of CCP § 1008(a), 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 v. AC Transit (1995) 32 Cal.App.4d 1494, 1500.)  The clear legislative intent of § 1008(a) is to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it. Id.

Furthermore, “Public policy requires that pressure be brought upon litigants to use great care in preparing cases for trial and in ascertaining all the facts.  A rule which would permit the re-opening of cases previously decided because of error or ignorance during the progress of the trial would in a large measure vitiate the effects of the rules of res judicata.  [citations omitted.]  When the requirement of section 1008 that the application for reconsideration be upon an ‘alleged different state of facts’ is viewed in light of this public policy, it is evident that the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.  In short, the moving party’s burden is the same as that of a party seeking new trial on the ground of ‘newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.’ (Code of Civil Procedure, § 657, subd. 4.)”  (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) (internal quotes edited.)

Different policy considerations, however, are operative if the reconsideration is accomplished by a different judge. As such, the general rule is just the opposite: the power of one judge to vacate an order made by another judge is limited. Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal. App. 3d 1583, 1588.  This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. “If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.” (People v. The Superior Court of Los Angeles County (Scofield) (1967) 249 Cal. App. 2d 727 [first judge’s ruling upholding search warrant was binding on second judge; order granting Pen. Code, § 995 motion reversed].)

Judge Lucas’ order was issued on 30 September 2014 regarding this matter.  In addition, there was no “new or different” law that would authorize reconsideration of this Court’s order.  (See Baldwin v. Home Sav. of America, supra.)  As such, as a policy consideration, this court cannot consider granting this motion since it has been reviewed and contemplated from another Judge.

Accordingly, Defendant’s Motion for Reconsideration is DENIED.

1. Motion for Protective Order Precluding the Depositions of PMQ’s Noticed

In support of the motion, Defendant cites Cal. Civ. Pro. §§ 2017.010, 2017.020 (a), 2025.420(a), 2025.420(b)(1).  Defendant has accompanied the motion with a meet and confer declaration.

First, Cal. Civ. Pro. § 2017.010 states that “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

Next, Cal. Civ. Pro. § 2017.020 (a) instructs the Court to “limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Finally, Cal. Civ. Pro. § 2025.420(a) allows any party or deponent to move for a protective order against a deposition.  Then, under § 2025.420(b)(1), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”

In California, the determination of relevance is based on reason, logic, and common sense. (Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1612.)  Furthermore, while fishing expeditions may be in bad faith, they are not barred per se (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546.), and it is well established that California discovery should be resolved in favor of providing discovery

Here, Defendant argues that Plaintiff’s deposition requests are overly intrusive because the deposition requests inquire broadly as to the conditions of Wal-Mart stores, and the number of slip and fall cases.  Defendant argues that California is a “notice state” not a “mode of operation” state (Moore v. Wal-Mart Stores, Inc., (2003) 111 Cal. App.4th 472, 477, Ortega v. K-Mmi Corp., (2001) 26 Cal. 4th 1200), and therefore, Plaintiff’s inquiry into the flooring and number of slip and falls will not lead to admissible evidence.  However, while Plaintiff cannot rely on a “mode of operation” theory, Plaintiff can still use such conditions to demonstrate constructive notice.  Plaintiff’s deposition requests are reasonably calculated to lead to the discovery of admissible evidence.

Therefore, Defendant’s motion for a Protective Order Precluding The Depositions of PMQs Noticed By Plaintiff is DENIED.

1. Order.

Defendant’s Motion to Quash Deposition Notices of Wal-Mart Stores’ Personnel is DENIED.

Defendant’s Motion for Reconsideration is DENIED without prejudiced

Defendant’s Motion for a Protective Order Precluding The Depositions of PMQs Noticed By Plaintiff is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] Defendant’s counsel noted that the Court order from an ex parte hearing was mailed to an incorrect address. Defense counsel filed with the Court an updated address on 16 January 2014. Previous communications between the parties were sent to the correct address.

[4] Rafael Herrera was the Assistant Manager at the time the incident happened. She prepared the incident report. Cordero Eladio, was the associate first one the scene when the incident occurred.