Estate of Raphael Harper v. CVS Pharmacy, Inc., et al

Case Number

24CV00873

Case Type

Hearing Date / Time

Wed, 01/29/2025 - 10:00

Nature of Proceedings

Defendant Longs Drug Stores California, LLC’s, Motion To Compel Deposition Of Plaintiff Raquel Harper Or, In The Alternative, For An Order Precluding Ms. Harper From Testifying At Trial

Tentative Ruling

For Plaintiffs Raquel Harper and The Estate of Raphael Harper: Daniel Moossai, Downtown LA Law Group

                                   

For Defendant Longs Drug Stores California, LLC: James J. Yukevich, Raymond H. Hua, Matthew H. Conley, Yukevich Cavanaugh

                                   

For Defendant 2973 State Street, LLC: Craig A. Parton, Kristen M. Blabey, Jeff F. Tchakarov, Price, Postel & Parma LLP

RULING

(1) For all reasons discussed herein, the motion of Defendant to compel the deposition of Plaintiff is granted, in part.

(2) On or before February 12, 2025, Plaintiff Raquel Harper shall provide to Defendant Longs Drug Stores California, LLC, three dates on which Plaintiff is available to attend a deposition. On or before February 19, 2025, Defendant shall select a date for the deposition from those provided by Plaintiff, and provide Plaintiff with code compliant notice of that date. To the extent Plaintiff fails to provide three dates on which Plaintiff is available to attend a deposition by the deadline prescribed herein, or if the parties are unable to mutually agree to a deposition date by February 12, 2025, provided the parties engage in good faith efforts to select a date, Defendant may unilaterally select a date for the deposition of Plaintiff provided that Defendant provides Plaintiff with proper and sufficient notice.

(3) The Court awards sanctions in favor of Defendant Longs Drug Stores California, LLC, and against Plaintiff Raquel Harper and her counsel, in the amount of $810, payable to Defendant’s counsel. Payment of sanctions is due by February 28, 2025.

(4) Except as herein granted, the motion of Defendant is otherwise denied.

(5) The MSC date of 5/2/25 and the Trial Date of 5/28/25 are confirmed.

(6) Defendant shall give notice of the Court’s ruling herein.

Background

On February 16, 2024, Plaintiffs Raquel Harper (Raquel), as successor in interest to decedent Raphael Harper (Raphael), and the Estate of Raphael, filed a complaint against Defendants CVS Pharmacy, Inc. (CVS), and 2973 State Street LLC (State Street), (collectively, Defendants), alleging two causes of action for general negligence and premises liability. (Note: Due to common surnames, the Court will refer to Plaintiffs individually by their first names. No disrespect is intended.)

As alleged in the Judicial Council form complaint, on February 16, 2022, Raphael was walking within Defendants’ premises when, suddenly and without warning, the wheels on the shopping cart Raphael was pushing adhered or stuck to an unknown substance on the floor, causing Raphael to fall forward and sustain injuries. (Compl., GN-1 & Prem.L-1.)

On April 25, 2024, Longs Drug Stores California, LLC, (Longs), answered the complaint, generally denying its allegations and asserting twenty-five affirmative defenses. In its answer, Longs asserts that it was erroneously sued as CVS.

On May 24, 2024, State Street answered the complaint and filed a cross-complaint against Longs asserting six causes of action for breach of contract, and equitable and declaratory relief. State Street dismissed its cross-complaint, without prejudice, on August 16, 2024.

On December 4, 2024, Longs filed a motion for an order compelling the deposition of Raquel. In support of the motion, Longs submits the declaration of its counsel, Matthew H. Conley (Conley), who states that a notice of Raquel’s deposition (the deposition notice) was served on Raquel on October 10, 2024. (Conley Decl., ¶ 3 & Exh. B.) Raquel did not object or otherwise respond to the deposition notice, and did not contact Conley to reschedule the deposition. (Id. at ¶ 4.)

Neither Raquel nor her counsel appeared for the deposition. (Conley Decl., ¶¶ 5-6 & Exh. C.) On November 4, 2024, Conley spoke with Raquel’s counsel of record, Daniel Moossai (Moossai), and advised Moossai that the present motion would be filed if Raquel would not agree to appear for deposition. (Id. at ¶ 6.) Moossai stated that Raquel would not agree to appear for a deposition. (Ibid.)

On November 20, 2024, Conley sent a letter to Moossai in an effort to meet and confer regarding Raquel’s failure to appear for a deposition. (Conley Decl., ¶ 7 & Exh. D.) Raquel did not respond to that letter and has not provided dates for her deposition. (Id. at ¶ 7.)

Raquel has not filed an opposition or other response to the motion of Longs.

Analysis

Proper service of a deposition notice under Code of Civil Procedure section 2025.240 “is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).) “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, … the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (Code Civ. Proc., § 2025.450, subd. (a).) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise stated.)

Upon the granting by the Court of a motion filed under subdivision (a) of section 2025.450, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Apart from ostensibly refusing to appear for a deposition, there is no information in the record before the Court to show or suggest that Raquel asserted any valid objections to the deposition notice or to the examination date stated in that notice. The Court also has no record of Raquel having filed a motion for a protective order demonstrating good cause for why her deposition should not be taken in this action. (See Code Civ. Proc., §§ 2017.020, subd. (a) & 2025.420, subd. (b); Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [the party seeking a protective order bears the burden to demonstrate good cause]. For these reasons, the Court will, at this stage of the proceedings, order Raquel to appear for a deposition.

The Court will further order Raquel to, on or before February 12, 2025, provide to Longs three dates on which Raquel is available to attend a deposition. On or before February 19, 2025, Longs shall select a date for the deposition of Raquel from those provided by Raquel, and serve Raquel with code compliant notice of that date. If Raquel fails to provide, by the deadline prescribed herein, three dates on which she is available to appear for her deposition, or if the parties are unable to mutually agree to a deposition date by February 12, 2025, provided the parties engage in good faith efforts to select a date, Longs may unilaterally select a date for the deposition of Raquel provided that Longs provides Raquel with proper and sufficient notice.

Court records reflect that a trial confirmation conference is scheduled in this matter for May 28, 2025. Therefore, the Court will also order the deposition of Raquel to conclude on or before April 28, 2025.

Nothing in this ruling shall be interpreted to preclude Raquel from filing an appropriate motion for a protective order, if warranted, in lieu of providing dates on which Raquel available to appear for a deposition as further discussed above.

As to the request of Longs for an award of sanctions in the amount of $1,435, there is no evidence or information to show why Raquel acted with substantial justification in refusing to appear for or attend a deposition in this matter, or to suggest that an award of sanctions would be unjust. Therefore, the Court will also grant the motion as to the request of Longs for an award of monetary sanctions.

An award of monetary sanctions must be “reasonable under the circumstances ….” (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437; see also Code Civ. Proc., § 2023.030, subd. (a) [monetary sanctions may be awarded to compensate a party for reasonable expenses].) “The principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) Under the totality of the circumstances present here, including the Court’s experience with addressing attorney’s fee requests, the Court finds that sanctions in the amount of $810 reflect the reasonable expenses incurred by Longs as a result of Raquel’s conduct. This reduction in the amount of sanctions reflects an adjustment in the attorney’s fees claimed by Longs, to account for the absence of any opposition to the motion. Sanctions shall be payable to counsel for Longs.

Though Longs also requests that the Court enter an order precluding Raquel from testifying, or introducing her discovery responses, at trial, the Court will deny this request. To the extent further disputes develop with respect to the deposition of Raquel, including as to any failure by Raquel to comply with the Court’s ruling herein, the Court will address such further disputes, including any appropriate request for sanctions, upon the filing and service of a procedurally appropriate motion.

The Court will further order Longs to give notice of this ruling.