Silvia Contreras et al vs Costco Wholesale Corporation et al
Silvia Contreras et al vs Costco Wholesale Corporation et al
Case Number
23CV02771
Case Type
Hearing Date / Time
Mon, 02/03/2025 - 10:00
Nature of Proceedings
Motions to Compel (9)
Tentative Ruling
Silvia Contreras, et al. v. Costco Wholesale
Case No. 23CV02771
Hearing Date: February 3, 2025
HEARING: 1. Plaintiffs’ Motion to Compel Deposition of Defendant’s Person Most Knowledgeable Re Company-Wide Incidents and/or Complaints Involving Shopping Carts; Request for Sanctions
2. Plaintiffs’ Motion to Compel Deposition of Defendant’s Person Most Knowledgeable Re Cart Handling Guidelines; Request for Sanctions
3. Plaintiffs’ Motion to Compel Deposition of Defendant’s Person Most Knowledgeable Re Disciplinary Procedures for Violation of Cart Handling Guidelines; Request for Sanctions
4. Plaintiffs’ Motion to Compel Further Responses to Request for Production of Documents (Set Two); Request for Sanctions
5. Plaintiffs’ Motion to Compel Further Responses to Request for Production of Documents (Set Three); Request for Sanctions
6. Plaintiffs’ Motion to Compel Further Responses to Form Interrogatories (Set Two); Request for Sanctions
7. Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories (Set Two); Request for Sanctions
8. Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories (Set Three); Request for Sanctions
9. Plaintiffs’ Motion to Compel Further Responses to Requests for Admission (Set One); Request for Sanctions
ATTORNEYS: For Plaintiffs Silvia Contreras, Mariano Contreras, and
Adalberto Contreras: Harout Greg Keosian, Natalie H.
Suri
For Defendant Costco Wholesale Corporation: Sean R. Burnett,
Jessica Farley
TENTATIVE RULING: Plaintiffs motions are all denied. No sanctions are awarded in favor of, or against, any party.
Background:
This action commenced on June 28, 2023, by the filing of the complaint by plaintiffs Silvia Contreras (“Silvia”), Mariano Contreras (“Mariano”), and Adalberto Contreras (“Adalberto”) against Costco Wholesale Corporation (“Costco”) setting forth causes of action for: (1) negligence - premises liability; (2) negligent hiring; (3) loss of consortium; and (4) negligent infliction of emotional distress. (Note: due to common surnames plaintiff’s will be referred to by their given names to avoid confusion. No disrespect is intended.)
As alleged in the complaint:
On October 3, 2022, Silvia was at Costco in Goleta, standing at the entrance, when a Doe employee struck Silvia from behind with multiple shopping carts that he was pushing, causing Silvia to fall to the ground and sustain injuries. (Compl., ¶ 9.) Silvia’s injuries include a right ankle fracture that necessitated four surgeries, a precipitating factor for Silvia’s kidney disease necessitating dialysis treatment, and a head injury. (Ibid.)
Mariano is Silvia’s husband and makes a claim for loss of consortium. (Compl., ¶¶ 27-32.)
Adalberto is Silvia’s son and was present at the scene of the accident and makes a claim for negligent infliction of emotional distress. (Compl., ¶¶ 33-40.)
Costco filed its answer to the complaint on August 4, 2023, asserting a general denial and 12 affirmative defenses.
In May and June 2024, plaintiffs served several sets of discovery on Costco. On September 5, 2024, plaintiffs served three notices of taking depositions of Costco’s person most knowledgeable regarding several topics.
Having received, what they perceived as, insufficient responses to the discovery and deposition notices, plaintiffs filed nine separate motions to compel and sought sanctions. According to plaintiffs, following meet and confer efforts, after the motions were filed, plaintiffs have withdrawn some of their motions, and a portion of one of their motions as follows:
All three motions to compel the depositions of Costco’s persons most knowledgeable, the motion to compel further responses to requests for production of documents (set two), and requests for admission Nos. 43, 45, 46, 47, 48, 51, and 52. (Reply, p. 2, ll. 14-19.)
[Note: Although not mentioned as withdrawn by plaintiffs’ counsel in the reply, by way of evidence presented, as well as argument in the opposition and reply, plaintiffs have also withdrawn the motion as to requests for admission Nos. 15-33, 34, 35, 36, 37, and 39. They have also withdrawn the motion as to special interrogatories Nos. 49-54, 56, 57, 64, 74, 75, 76, 77, and 78, as well as the entirety of the motion to compel further responses to form interrogatory 17.1. (see Farley Dec., ¶¶ 12, 13 & Exhs. 3, 4; Plaintiffs’ reply brief.) In the future, the court expects clarity so that it is not required to expend unnecessary time and resources determining what is actually before the court.]
The following motions remain before the court and are opposed by Costco:
1. Plaintiffs’ Motion to Compel Further Responses to Request for Production of Documents (Set Three);
2. Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories (Set Two), as to requests 42 and 43 only; and
3. Plaintiffs’ Motion to Compel Further Responses to Requests for Admission (Set One), as to request No. 34 only.
Analysis:
As an initial matter: both parties represent that Costco has admitted liability in this matter. Plaintiffs are seeking information regarding the possibility of seeking punitive damages against Costco. The complaint in this matter, that was filed June 28, 2023, does not seek punitive damages. This fact will affect the analysis of relevance of the discovery requests. “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved on another ground in Williams v. Superior Court (2017) 3 Cal.5th 531; italics added.)
“Unless 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)
“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
“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.) Defendants provided the meet and confer declaration as well as meet and confer emails. All relevant issues were addressed, and defendants did make a reasonable and good faith attempt at an informal resolution of each issue.
The court finds that there were sufficient meet and confer efforts prior to bringing the present motions.
“In deciding whether a matter is subject to discovery because it is relevant to the subject matter of the pending action, there is no precise or universal test of relevancy furnished by the law. Relevancy to subject matter must be determined in each case according to the teachings of reason and judicial experience. [Citations.] Although relevancy to the subject matter is a broader concept than relevancy to the issues [citation], if the information sought to be elicited relates to matters of little or no practical benefit to the party seeking disclosure, a timely objection on the grounds that the question asked is not relevant to the subject matter in the pending action and not reasonably calculated to lead to admissible evidence should be sustained by a trial judge.” (Covell v. Superior Court (1984) 159 Cal.App.3d 39, 42-43.)
Separate Statements
“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following: . . . (3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; (4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it . . ..” (Cal. Rules of Court, rule 3.1345(c).)
The separate statements for all of plaintiffs’ motions are severely lacking. They do not provide all of the information necessary, they are not full and complete, nor do they include anything other than conclusory “reasons” for compelling further responses. In almost all cases, the separate statements do not even state why the information is sought.
Requests for Production of Documents - Set Three
Plaintiffs seek further responses to requests Nos. 39 and 40.
Code of Civil Procedure, section 2031.010 provides, in pertinent part:
“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.
“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”
“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .
“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or
“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)
A motion to compel further responses to a demand for production of documents differs from motions to compel further responses to other types of discovery. Good cause is required to be shown by the moving party.
A motion to compel further responses to a request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) (“Glenfed”) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)
“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).)
Request No. 39 seeks: “All DOCUMENTS/TANGIBLE THING/ELECTRONICALLY STORED INFORMATION that refer to, evidence, or reflect the details (who, what, how, where, when and why) that reflect each instance in which YOUR employee(s) have been disciplined for violating cart handling guidelines from January 1, 2012, to the present at the subject PREMISES.”
In response, Costco provided the following objections:
“Objection. This request is vague and ambiguous. Responding party objects that this request is overly broad and unduly burdensome. Objection is also made that it is not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made that this request is improperly compound. Responding party objects that this request seeks documents protected from disclosure by the attorney-client and work product doctrines [Coito v. Superior Court (2012) 54 Cal.4th 480; Scripps Health v. Sup. Ct. (Reynolds) (2003) 109 Cal.App.4th 529], as well as the trade secret privilege. Responding party also objects that this request seeks documents the production of which would violate the privacy rights of third parties, and the trade secret privilege.
“Objection. This request is vague and ambiguous. Responding party objects that this request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Responding party also objects that this request seeks documents the production of which would violate the privacy rights of third parties.”
By way of their separate statement, plaintiffs attack the objections made by Costco, except the objection based on third-party privacy rights, which they completely fail to address, but do not even attempt to provide any fact-specific showing of relevance as required. Further, even in the body of their motion, plaintiffs fail to explain why they would need to requested documents, for the requested timeframe, or how their need for the documents would outweigh third-party privacy rights. Most of the motion is simply a recitation of the meet and confer efforts. Plaintiffs have failed to meet their burden and the motion to compel a further response will be denied.
Request No. 40 seeks: “All DOCUMENTS/TANGIBLE THING/ELECTRONICALLY STORED INFORMATION that refer to, evidence, or reflect the details (who, what, how, where, when and why) that show how reserves for claims are estimated and maintained. This may include actuarial reports and statements detailing reserve funding and claims payout histories.”
In response, Costco provided the following:
“Objection. This request is vague and ambiguous. Responding party objects that this request is overly broad and unduly burdensome. Objection is also made that it is not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made that this request is improperly compound. Responding party objects that this request seeks documents protected from disclosure by the attorney-client and work product doctrines [Coito v. Superior Court (2012) 54 Cal.4th 480; Scripps Health v. Sup. Ct. (Reynolds) (2003) 109 Cal.App.4th 529], as well as the trade secret privilege. Responding party also objects that this request seeks documents the production of which would violate the privacy rights of third parties, and the trade secret privilege.
“Objection. This request is vague and ambiguous and not reasonably calculated as to time and location. This interrogatory is harassing and burdensome in light of the fact that a PMQ has been designated on this and related topics. Subject to and without waiving these objections, responding party states: After a diligent search and reasonably inquiry, responding party has insufficient information to respond at this time because it has been unable to locate anyone who can recall responsive information dating back to 2012. Responding party is unaware of any significant changes from the time of the incident through present.”
By way of their separate statement, plaintiffs’ entire argument in support of further responses is:
“Defendant’s response in this matter lacks sufficient information and is evasive without further detail. Plaintiff asked what specific efforts were made to locate someone with the required knowledge? For instance, was anyone identified who could provide information from the past seven years, even if they lacked details beyond that timeframe? Clarification is necessary, including an explanation of the steps taken to gather the requested information.
Additionally, the inquiry does not focus solely on ‘significant changes’ but seeks any updates to materials, guidelines, or procedures, regardless of scope.
A more thorough response or clarification is necessary.”
Again, plaintiffs have failed to meet their burden of showing a fact-specific showing of relevance, in either the separate statement or the motion itself. Further, other than claiming the responses is evasive, plaintiffs fail to show why the response is inadequate. The motion to compel a further response will be denied.
Further Responses to Special Interrogatories
Plaintiffs seek further responses to special interrogatories Nos. 42 and 43.
Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”
A party may respond to interrogatories, in writing and under oath, by (1) providing an answer containing the information sought, (2) exercising the option to produce writings, or (3) by objecting to the particular interrogatory. (Code Civ. Proc., section 2030.210 subd. (a).)
Code of Civil Procedure section 2030.220 provides that, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”
Special interrogatory No. 42 reads: “IDENTIFY all of YOUR employees who have failed to follow cart handling guidelines from 2012 to present.”
Special Interrogatory No. 43 reads: “IDENTIFY all of YOUR employees who have been reprimanded and/or disciplined for failing to follow cart handling guidelines from 2012 to present.”
To each of the special interrogatories, Costco responded:
“Objection. This interrogatory is vague and ambiguous, overbroad, unduly burdensome, not reasonably calculated, compound, and calls for a narrative. Further objection is made that this interrogatory seeks information protected from disclosure by the attorney-client privilege, work product doctrine, the privacy rights of third parties, and the trade secret privilege.
“Objection. This interrogatory is vague and ambiguous, overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence. Further objection is made that this interrogatory seeks information protected from disclosure by the privacy rights of third parties.
Responding party is willing to meet and confer about a narrowed time frame, location and the redaction of information relevant to third parties having nothing to do with this incident.”
By way of their separate statement, plaintiffs argue that the interrogatories are not vague and ambiguous, not overbroad, and not unduly burdensome. Plaintiffs fail to address the objections regarding the disclosure of third-party privacy rights, a narrowed time frame, location, and redaction of information, in their separate statement and moving papers. By way of their reply, plaintiffs indicate that they have agreed to narrow the scope of the requests to five years preceding the incident and limiting the requests to the specific Costco where the subject incident occurred. Plaintiffs also indicate that they have proposed measures to protect employee privacy.
Costco argues, and provides evidence by way of the declaration of John Swartwood (a Costco Administrative Manager), that: “In order to comply with a request to identify the employees who have been disciplined for violating Cart Guidelines since 2012, someone from Costco would have to individually open the file of each employee that has worked at the subject warehouse since 2012 and review it. Given that Costco employees hundreds of employees at any given time, we are talking about thousands of employees. (Swartwood Dec., ¶ 7.) “This process would be extremely time-consuming and burdensome to warehouse staff, especially because certain measures would need to be taken to protect the privacy interests of all of the employees whose files would be reviewed.” (Id. at ¶ 8.) “There is no other, less time consuming or burdensome way to obtain this information.” (Id. at ¶ 9.)
The court finds Costco’s objections regarding relevancy, overbreadth, and undue burden meritorious. Other than speculating that they might find information that might allow them to pursue punitive damages, plaintiffs have failed to adequately explain why the requested information would be relevant in this case. Further, such speculative usefulness to plaintiffs would not overcome the burden of production or the privacy rights of the third parties. If the private third-party information were to be ordered redacted, that would create an even larger burden than can be justified for any limited use the information would provide.
The motion to compel further responses to special interrogatories Nos. 42 and 43 will be denied.
Requests for Admission
Plaintiffs seek a further response to request for admission No. 34.
RFAs “differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.” (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.)
Code of Civil Procedure, section 2033.010 provides, in pertinent part: “Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”
“The party to whom requests for admission have been directed shall respond in writing under oath separately to each request. Each response shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc. § 2033.210, subds. (a-b).
Request for admission No. 34 states: “Admit that violating the guidelines for cart handling is common among YOUR employees.”
Costco responded:
“Objection. Vague and ambiguous as to ‘violating’ and ‘common.’ Responding party also objects that the time period and location are so vague and ambiguous that responding party cannot respond without engaging in undue speculation. Further objection is made that this request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.”
Plaintiffs argue that: “This request is neither vague nor ambiguous, as it uses clear, common language that is easily understood. The terms ‘common’ and ‘violating’ do not render the request unintelligible to the extent that the Defendant cannot respond.”
The court agrees with Costco’s objections. The request is facially vague, especially as to the term “common.” The word common can mean many things to many people. For some people “common” would constitute once a day. For others, once a week, once a month, once a year, etc. Without further clarification of what “common” means, in this context, any response by Costco would have no evidentiary value without knowing what the person answering considers “common.” The word, without more, lacks definition.
Further, the way the request is phrased, is unduly burdensome. It does not contain any time limitations or location limitations.
The motion to compel a further response will be denied. This will not prevent plaintiffs from propounding a more narrowly tailored, non-vague, request.
Sanctions
Plaintiffs seek sanctions. They did not prevail on their motions and Costco did not request sanctions for opposing the motions. Therefore, none will be awarded.