Case Name: Medrano v. Buca Di Beppo Italian Restaurant, et al.
Case No.: 1-13-CV-245676

Defendants Buca Restaurants 2, Inc. (“Buca Restaurants”), Equity Office Management, LLC (“Equity”) and Stephen Velarde (“Velarde”) (collectively, “Defendants”) move for a protective order prohibiting or postponing the deposition of Equity’s Person Most Knowledgeable with Request for Production of Documents (“PMK Deposition”). Plaintiff Gabriela Medrano moves to compel further responses to form interrogatories (“FI”) and special interrogatories (“SI”) and to compel the depositions of Buca Restaurants, Equity and Velarde.

This is a trip and fall case. Plaintiff alleges that on June 2, 2011, she was walking in a Buca Di Beppo restaurant when she encountered a dangerous condition which caused her to fall suffer injury. (Complaint, ¶ 16.) Plaintiff’s complaint, which was filed on May 2, 2013, asserts a single cause of action against Defendants, among others, for negligence.

I. Defendants’ Motion for a Protective Order

Before, during, or after a deposition, any party or deponent may promptly move for a protective order. (Code Civ. Proc., § 2025.420, subd. (a).) For good cause shown, the court may make any order that justice requires to protect the party or deponent from unwarranted annoyance, embarrassment, or oppression or undue burden and expense. (Id., § 2025.420, subd. (b).) If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just. (Id., § 2025.420, subd. (c).)

The Court is not persuaded that it is unnecessary, as Defendants insist, for Plaintiff to take Equity’s deposition because it did not control or possess the restaurant premises at the time of her purported incident. As Plaintiff asserts in her opposition, even a lessor of commercial property that is out of possession maintains various duties and responsibilities as the landowner. (See, e.g., Mora v. Baker Commodoties, Inc. (1989) 210 Cal.App.3d 771, 781.) Consequently, ascertaining Equity’s role, if any, in the events and circumstances which allegedly led to Plaintiff’s injury is necessary and well within the permissible scope of discovery. (Code Civ. Proc., § 2017.010 [“any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence …”].)

Consequently, the Court is not persuaded that good cause exists to prohibit or postpone Equity’s deposition, nor have Defendants demonstrated the need for an order compelling Plaintiff to serve Equity with special interrogatories prior to any deposition of its PMK. Accordingly, Defendants’ motion for a protective order is DENIED.

II. Plaintiff’s Motion to Compel

Plaintiff moves to compel the following:

(1) the deposition of Stephen Velarde, telephonically, within 75 miles of his home in Maryland;
(2) the deposition of Buca Restaurants pursuant to the November 5, 2014 deposition notice;
(3) the deposition of Equity pursuant to the November 5, 2014 deposition notice;
(4) further responses from Velarde to FI, Set One, Nos. 2.5, 2.6, 2.11, 8.2, 8.3, 12.1, 12.3, 12.4, 13.1, 13.2 and 15.1, and SI, Set One, Nos. 3, 4, 5, 7 and 8; and
(5) further responses from Buca Restaurants to SI, Set Two, Nos. 16-22.

A. Depositions

As a threshold matter, Defendants’ insistence that Plaintiff’s motion to compel the depositions is procedurally defective because the grounds for the motion are not set forth in the notice and should therefore be denied is without merit. While it is generally true that a notice of motion must state exactly what relief is being sought and why, i.e., the grounds (see Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), relief may be granted on grounds appearing anywhere in the accompanying declarations and points and authorities, provided the notice indicates as much. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Plaintiff sufficiently articulates the basis for her motion in the supporting papers.

Under Code of Civil Procedure section 2025.450, a party may move for an order compelling a deponent’s attendance and production of documents if the deponent fails to appear or proceed with his examination after a deposition notice has been served. 9Code Civ. Proc., § 2025.450, subd. (a).) Though it appears to be the case, as Defendants assert, that they have not outright refused to produce Velarde and Buca Restaurants (its PMK) for deposition, a review of the meet and confer correspondence exchanged between the parties over the last six months or so indicates some difficulty in arriving at mutually acceptable dates for the examinations to take place. Plaintiff finally elected to unilaterally set dates for the depositions only after attempts to obtain acceptable dates from Defendants proved to be unsuccessful. Given this difficulty, the Court GRANTS Plaintiff’s request to compel Velarde and Buca Restaurants’ attendance at deposition. Given his residence outside of the state of California, Velarde’s deposition may be taken telephonically. (Code Civ. Proc., § 2025.310, subd. (a).)

With respect to Equity, based on Defendants’ opposition to the motion to compel and their filing of the protective order discussed above, Defendants have made it clear that Equity has no intention of appearing for the PMK Deposition. However, the Court finds that Plaintiff is entitled to depose Equity’s PMK, having demonstrated that: she served Defendants with a deposition notice on November 5, 2014; Equity did not appear on the date noticed to be deposed; and Plaintiff’s counsel subsequently contacted Defendants to discuss the examination having not taken place. This is all that is required of the moving party on a motion to compel attendance at a deposition. (Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) Defendants have not established any reason why Plaintiff should not be permitted to examine Equity’s PMK. Accordingly, Plaintiff’s request that Equity be ordered to produce their PMK for deposition is GRANTED.

While the Court agrees that Plaintiff is entitled to take the depositions of Buca Restaurants, Velarde and Equity, it agrees with Defendants that Plaintiff has not satisfied the meet and confer requirement with respect to the portion of her motion which requests that the Court compel production in accordance with the deposition notices. Where a party moves to compel the production of documents described in a deposition notice, the motion must be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040 and 2025.450, subd. (b)(2) (emphasis added).) There is no indication that Plaintiff made any effort to specifically address Defendants’ objections to the 27 requests for production contained in the deposition notices served on Equity and Buca Restaurants.

Given the relatively straightforward nature of this case, the Court believes that further meet and confer between the parties can lead to the informal resolution of many of Defendants’ objections to the aforementioned production requests. Consequently, Plaintiff’s motion to compel is CONTINUED with respect to the requests for production contained in the deposition notices to Buca Restaurants and Equity for 30 days to March 3, 2015, and the parties are ordered to meet and confer and make a good faith effort to resolve their discovery dispute.

In addition, the parties are ordered to submit supplemental briefing that identifies any issues that they were unable to resolve through meet and confer and provides argument as to their respective positions regarding the production requests. Plaintiff’s supplemental brief shall be filed on February 20 and shall not exceed 7 pages in length. Defendants’ supplemental brief shall be filed on February 24 and shall not exceed 7 pages in length.

B. Interrogatories

Contrary to the portion of Plaintiff’s motion seeking to compel production of the items requested in the deposition notices, the Court finds that Plaintiff has satisfied the meet and confer requirement with respect to the interrogatories which are the subject of her motion. Accordingly, the Court has considered the substantive merits of Plaintiff’s motion and Defendants’ objections to these requests, and disposes of the motion as articulated below.

1. From Velarde

The Court finds that further responses are warranted to FI, Set One, Nos. 2.5, 2.6, 2.11, 4.1, 8.2, 12.1, 12.3, 12.4, 13.1, 13.2 and 15.1. Velarde’s responses to several of these requests (Nos. 2.5, 2.6, 2.11, 4.1, 8.2, 12.1, 12.5, 12.4 and 15.1) are incomplete because he fails to fully respond to each individual subpart contained within the interrogatory. Each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (See Code Civ. Proc., § 2030.220, subds. (a) and (b).) Further, several of Velarde’s responses (Nos. 2.11, 12.3, 12.4, 13.1, 13.2) are also not complete because he does not respond directly to the call of the question. Defendants also fail to justify Velarde’s privacy objections. Moreover, the Court is not entirely persuaded that the requests seeking information regarding interviews with potential witnesses, possible surveillance and investigations, and the existence of relevant videos and photographs implicate the attorney-client privilege and/or work product protection, as Defendants insists; however, to the extent that Defendants believe this is the case, they must produce a privilege log which provide information which is sufficient to make a showing that the information requested is protected from disclosure.

The Court also finds that further responses to SI, Set One, Nos. 3, 4, 5, 7 and 8 are warranted. Contrary to Defendants’ assertions, these interrogatories are neither vague nor ambiguous, they seek information which is relevant to Plaintiff’s claims, and they are not overbroad in scope. Additionally, Velarde’s response of “unknown” to SI Nos. 4, 5, 7 and 8 is not code-compliant. If Velarde cannot provide an affirmative or negative response to these requests, he must specify why this is the case, including articulating what efforts he made to obtain the requested information. 9See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)

2. From Buca Restaurants

The Court finds that further responses to SI, Set Two, Nos. 16-21, which seek “contact information” (defined as “present work and home address”) for various witnesses are not warranted. While Buca Restaurants asserted numerous objections in response to these requests, it also provided a substantive response stating that it was not in possession of the current work and home addresses of the specified individuals because they are no longer employed by the company. Buca Restaurants then provided the last known phone number for each individual. In its opposing separate statement, Buca Restaurants represents that its efforts to locate these individuals and obtain their present work and home addresses were unsuccessful.

As stated above, each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (See Code Civ. Proc., § 2030.220, subds. (a) and (b).) The Court has no reason to doubt Buca Restaurants’ representation that it has provided all of the information available to it with respect to these SI. Consequently, the Court finds that further responses are not necessary.

However, the Court does find that a further response to SI No. 22 is warranted. In response to Plaintiff’s request that it identify those individuals that replaced any loose screws to bolt down the “transition strip” in the area where her fall occurred, Buca Restaurants responded only with an objection based on relevancy and provided no substantive response. In its opposing papers, Buca Restaurants makes no effort to justify this objection, as is its burden, and therefore the Court finds that it is without merit. (See Fairmont Ins. co. v. Superior Court (2000) 22 Cal.4th 245, 255 [stating that a party that objects to a discovery request bears the burden of explaining and justifying the objection].) Accordingly, Buca Restaurants must provide a further response to this SI.

C. Sanctions

Plaintiff and Defendants’ requests for monetary sanctions are both DENIED.

D. Conclusion

In accordance with the foregoing analysis, the Court rules as follows:

Defendants’ motion for a protective order is DENIED.

Plaintiff’s motion to compel is GRANTED IN PART, DENIED IN PART and CONTINUED IN PART. The motion is GRANTED as to: FI, Set One, Nos. 2.5, 2.6, 2.11, 4.1, 8.2, 12.1, 12.3, 12.4, 13.1, 13.2 and 15.1 (from Velarde); SI, Set One, Nos. 3, 4, 5, 7 and 8 (from Velarde); SI, Set Two, No. 22 (from Buca Restaurants); and the depositions of Buca Restaurants, Velarde and Equity. The motion is DENIED as to SI, Set Two, Nos. 16-21 (from Buca Restaurants).

The motion is CONTINUED with respect to the requests for production contained in the deposition notices for Buca Restaurants and Equity, subject to the conditions set forth above.