This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 18:56:47 (UTC).

RAPHAEL BARAT VS JHONNY WILFREDO OCHOAORTIZ

Case Summary

On 12/07/2016 RAPHAEL BARAT filed a Personal Injury - Motor Vehicle lawsuit against JHONNY WILFREDO OCHOAORTIZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2976

  • Filing Date:

    12/07/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

BARAT RAPHAEL

Defendants and Respondents

OCHOAORTIZ JHONNY WILFREDO

DOES 1 TO 50

OCHOAORTIZ JOHNNY WILFREDO

HOME DEPOT U.S.A. INC.

CITY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WALLACE BRADLEY

SIMON ROBERT T.

SIMON ROBERT T. ESQ.

Defendant Attorneys

FISHER II ROBERT A.

AMES MATTHEW P.

 

Court Documents

NOTICE OF ASSOCIATION OF LEAD COUNSEL

2/28/2018: NOTICE OF ASSOCIATION OF LEAD COUNSEL

NOTICE OF ASSOCIATION OF LEAD COUNSEL

2/28/2018: NOTICE OF ASSOCIATION OF LEAD COUNSEL

Proof of Service of Summons and Complaint

3/19/2018: Proof of Service of Summons and Complaint

ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RKLATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

5/14/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RKLATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

AMENDED NOTICE OF ASSOCIATION OF LEAD COUNSEL

5/17/2018: AMENDED NOTICE OF ASSOCIATION OF LEAD COUNSEL

Answer

7/30/2018: Answer

DEFENDANT HOME DEPOT, U.S.A., INC.'S NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT

9/19/2018: DEFENDANT HOME DEPOT, U.S.A., INC.'S NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT

Unknown

10/16/2018: Unknown

Unknown

10/29/2018: Unknown

Minute Order

10/29/2018: Minute Order

Order

10/29/2018: Order

Minute Order

10/31/2018: Minute Order

Notice of Change of Address or Other Contact Information

4/17/2019: Notice of Change of Address or Other Contact Information

Notice of Change of Address or Other Contact Information

4/17/2019: Notice of Change of Address or Other Contact Information

Minute Order

5/8/2019: Minute Order

Notice of Ruling

5/13/2019: Notice of Ruling

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

12/7/2016: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

PROOF OF SERVICE SUMMONS & COMPLAINT

12/28/2016: PROOF OF SERVICE SUMMONS & COMPLAINT

22 More Documents Available

 

Docket Entries

  • 05/20/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 05/17/2019
  • Substitution of Attorney; Filed by Home Depot U.S.A., Inc. (Defendant)

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  • 05/13/2019
  • Notice of Ruling; Filed by Home Depot U.S.A., Inc. (Defendant)

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  • 05/08/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/08/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for an Order Continuing Trial and for all Pretrial & Trial Related Deadlines) - Held - Motion Granted

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  • 05/08/2019
  • Ex Parte Application (for an Order Continuing Trial and for all Pretrial & Trial Related Deadlines); Filed by Home Depot U.S.A., Inc. (Defendant)

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  • 05/08/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order Continuing Trial...)); Filed by Clerk

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  • 04/17/2019
  • Notice of Change of Address or Other Contact Information; Filed by Raphael Barat (Plaintiff)

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  • 04/17/2019
  • Notice of Change of Address or Other Contact Information; Filed by Raphael Barat (Plaintiff)

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  • 03/25/2019
  • Proof of Service by Mail; Filed by Home Depot U.S.A., Inc. (Defendant)

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40 More Docket Entries
  • 02/28/2018
  • Amendment to Complaint; Filed by Raphael Barat (Plaintiff)

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  • 02/28/2018
  • Association of Attorney; Filed by Raphael Barat (Plaintiff)

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  • 02/08/2017
  • Answer; Filed by Jhonny Wilfredo Ochoaortiz (Defendant)

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  • 02/08/2017
  • ANSWER TO COMPLAINT

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  • 02/07/2017
  • Proof-Service/Summons; Filed by Raphael Barat (Plaintiff)

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  • 12/28/2016
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 12/28/2016
  • Proof-Service/Summons; Filed by Raphael Barat (Plaintiff)

    Read MoreRead Less
  • 12/07/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 12/07/2016
  • SUMMONS

    Read MoreRead Less
  • 12/07/2016
  • Complaint; Filed by Raphael Barat (Plaintiff)

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Tentative Rulings

Case Number: BC642976    Hearing Date: February 24, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

raphael barat ,

Plaintiff,

v.

jhonny wilfredo ochoaortiz, et al.,

Defendants.

Case No.: BC642976

Hearing Date: February 24, 2020

[TENTATIVE] order RE:

defendant’s MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Raphael Barat (“Plaintiff”) filed this action against Defendant Home Depot U.S.A., Inc. (“Defendant” or “Home Depot”) following a motor vehicle collision. Defendant Johnny Wilfredo Ochoaortiz (“Ochoaortiz”) was a day laborer who congregated with other day laborers at the Home Depot store located at 5600 Sunset Boulevard in Los Angeles, California. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts, ¶¶ 2, 16-17.) Plaintiff alleges that he collided with Ochoaortiz when the latter made an unsafe left turn at the intersection adjacent to the Home Depot store. Plaintiff filed this action against Defendant on the theory that there is an agency relationship between Defendant and day laborers who congregate outside Home Depot stores. Defendant moves for summary judgment, arguing that it is not vicariously liable for Ochoaortiz’s negligence, if any, which Plaintiff opposes. The Court grants Defendant’s motion for summary judgment.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . .  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests that the Court take judicial notice for various newspaper articles. To the extent these articles document that there are day laborers outside Home Depot stores, the request is unnecessary, as there is no dispute on this issue. Regardless, the request is denied because the contents of newspaper articles are not appropriate matters for judicial notice.

EVIDENTIARY OBJECTIONS

Plaintiff’s objections to Defendants’ evidence are overruled. The Court need not rule on Defendant’s objections except as noted in this order. (Code Civ. Proc. § 437c(q).)

DISCUSSION

Defendant argues that it is not liable for Ochoaortiz’s negligence because Ochoaortiz was not its agent. A principal is liable for the actions of its agents. (See Civ. Code, § 2330.) A principal may establish an agency relationship be conferring authority to an agent to act on its behalf, or by creating the appearance of ostensible authority. (See Civ. Code, §§ 2334, 2316.)

Defendant first proffers Ochoaortiz’s declaration, which states that at the time of the accident, he was driving his own vehicle to transport a bed and other belongings for two people who hired him on that date. (Declaration of Jhonny Wilfredo Ochoaortiz, ¶¶ 3, 8.) Ochoaortiz states that he never wore any type of clothing or material that would associate him with Home Depot. (Id., ¶ 10.) He also states that Home Depot never provided him with a place to solicit work. (Id., ¶ 11.) Finally, he states that Home Depot repeatedly told him to move off its property to the edge of the street. (Id., ¶ 12.) This evidence is sufficient to meet Defendant’s burden to demonstrate that Ochoaortiz was not its agent and it is not vicariously liable for his negligence.

In opposition, Plaintiff relies on Ochoaortiz’s deposition testimony. Ochoaortiz testified that Defendant’s employees would “look the other way on” the practice of its customers hiring day laborers. (Declaration of Thomas J. Conroy, Exhibit A, pp. 42-43.) Specifically, Ochoaortz testified as follows:

Q: . . . Home Depot knew that you would pick up jobs from their customers after they left the store, correct?

A: They get angru [sic] when -- angry when we ask their clients for jobs.

Q: But they knew that their clients were hiring you for jobs?

A: No. Nobody notices when you’re being hired.

Q: Well, but you’re there every day --

A: Yes.

Q: 12 hours a day, five days a week for ten years. So they knew you were there.

A: Yes. I can answer the workers of Home Depot, they are focused on their sales. They focus on us when they want us to remove the trucks from the parking lot.

Q: And when they’re not asking you to remove the trucks from the parking lot, do they look the other way on you being hired from their customers?

A: Yes.

Q: And from your perspective, your opinion, is it fair to say that Home Depot customers know they can get supplies at Home Depot and also workers from the parking lot?

A: From my point of view, yes. Because they look for -- they look to save a bit of money for themselves.

Q: And they know they can go to Home Depot to get the supplies and the workers; right?

A: Yes.

Q: And Home Depot maybe looks the other way because they knew it’s good for their business; right?

A: Yes.

Q: And in the ten years you were at Home Depot every day, they never kicked you off the property; correct? Did they?

A: Yes. They kicked me out -- I mean, I had to remove my truck.

Q: Right. But you, yourself, you were allowed to remain every day; correct?

A: Yes.

Q: Did they…

A: But I was never thrown out.

(Ibid.) As an initial matter, the Court sustains Defendant’s objection to this testimony. Ochoaortiz does not have foundation to testify about Defendant’s employees’ state of mind with respect to their alleged decision to “look the other way.” At best, Ochoaortiz can testify only that sometimes Defendants’ employees did not ask him to leave. However, Ochoaortiz’s testimony still does not give rise to a triable issue because it is too vague to support an argument that this was a knowing and conscious decision by Defendants’ employees. Moreover, evidence of Defendant’s knowledge that Ochoaortiz was on its premises is not evidence that Ochoaortiz was Defendant’s actual or ostensible agent such that Defendant is vicariously liable for Ochoaortiz’s negligence.

Plaintiff also attacks Ochoaortiz’s declaration, arguing that it is not authentic because his deposition occurred with a Spanish language interpreter and the declaration does not have a translation certificate. The mere fact that a non-native English speaker prefers an interpreter for a deposition is not dispositive evidence that the declaration is not authentic. Many non-native English speakers are comfortable reading English in a controlled environment but not answering unscripted questions in English under pressure by opposing counsel. Plaintiff also attacks the declaration because it was prepared by Defendant’s counsel and lists Defendant’s counsel’s name and address at the top. This is not extraordinary. It is not uncommon for attorneys to prepare declarations following witness interviews based upon the information provided to them by the prospective declarant.

Plaintiff proffers the deposition testimony of Eddie Ridgway (“Ridgway”), Defendant’s person most qualified to testify on certain issues. Ridgway testified that he has not had any complaints from customers about day laborers and has not had any reports from security regarding day laborers. (Declaration of Thomas J. Conroy, Exhibit C, p. 33.) Again, this is not evidence that Ochoaortiz was Defendant’s actual or ostensible agent and that Defendant is therefore vicariously liable for Ochoaortiz’s negligence.

Plaintiff argues that “[a]t the Woodland Hills store, Home Depot even teamed up with a hiring agency, Labor Ready, to run a day-laborer hiring center in the Home Depot parking lot.” (Plaintiff’s Separate Statement of Undisputed Material Facts, ¶ 15.) The Court sustains Defendant’s objections to this evidence for several reasons. First, this evidence lacks foundation because it is based exclusively on Plaintiff’s request for judicial notice, which the Court rejects. Second, this evidence is not relevant. The Court previously held as follows in ruling on the parties’ discovery motions:

At the hearing, Defendant’s counsel argued that the only relevant inquiry is whether there was a relationship between Defendant and Ochoaortiz. While that is the dispositive legal issue, evidence of a relationship between Defendant and the day laborers in general may be relevant to proving a relationship between Defendant and Ochoaortiz specifically. Nevertheless, Defendant’s counsel is correct in that the broader the discovery on this issue, the less relevant it becomes on the issue whether there was a relationship between Defendant and Ochoaortiz. How Defendant manages its relationships with day laborers at a different store does not establish a relationship between Defendant and a day laborer who was present at a different store. Therefore, the Court limits the deposition of Defendant’s person (or persons) most qualified to issues concerning the specific store at issue in this case.

(Court’s Order, dated October 31, 2019.) In other words, whether Defendant had a different relationship with day laborers at the Woodland Hills store is not relevant to whether day laborers at the Sunset Boulevard store were Defendant’s agents. Finally, even if the Court considered this evidence, the mere fact that Defendant hired a temp agency to provide day laborers does not mean that Defendant, as opposed to the temp agency, is liable for the day laborers conduct. Indeed, the quote upon which Plaintiff relies is from the vice president of the temp agency, not Defendant.

Plaintiff relies on Los Angeles Municipal Code section 12.24, which “recognizes the relationship of day laborers and big-box home improvement stores (i.e., Home Depot), and requires those stores to enact protocols related to day laborers.” (Plaintiff’s Memorandum of Points and Authorities, p. 5.) This does not give rise to a triable issue because Defendant demonstrates that it is not liable per City of Los Angeles Ordinance No. 180174, which amended Section 12.24, subdivision (U)(14) of the Los Angeles Municipal Code. City of Los Angeles Ordinance No. 180174 provides that the City Planning Commission may require a developer to submit written operating standards for day laborers to Department of City Planning as a condition for approval of the development of a home improvement store. (L.A. Ord. No. 180174, amending § 12.24, subd. (U)(14) to L.A. Mun. Code.) Defendant has proffered evidence that it obtained its certificate of occupancy on April 15, 1997, and has not applied for any building permits since the passage of the ordinance on October 5, 2008. (See Request for Judicial Notice, Exhibits A, C.) Plaintiff proffers no evidence to suggest that the City of Los Angeles imposed any such requirements with respect to the Home Depot store at issue. Plaintiff argues that the regulations apply to Home Depot generally, and not just this particular store. Nevertheless, there is no evidence of any specific written operating standards for day laborers that applied to the Home Depot store at issue.

Plaintiff argues that Defendant objected to Plaintiff’s discovery regarding the presence of day laborers on Defendant’s premises. (See Declaration of Thomas J. Conroy, Exhibits B, D.) Plaintiff has not, however, shown that he sought to compel Defendant to respond notwithstanding its objections. Further, in its order of October 31, 2019, the Court granted Plaintiff’s motion to compel Defendant to produce a person most qualified to testify regarding various topics, including Defendant’s policies and practices with respect to day laborers on its premises. (See October 31, 2019 Minute Order.) Accordingly, Plaintiff has had sufficient opportunity to conduct discovery on Defendant’s policies and practices with respect to day laborers. Plaintiff did not move to compel Defendant’s person most qualified to further respond to any deposition questions. Nor did Plaintiff move to compel Defendant to designate a different person most qualified. Because Plaintiff failed to avail himself of available remedies, he is responsible for this issue. Plaintiff argues that Defendant still was required to provide this information if it seeks summary judgment. Plaintiff is incorrect. If Plaintiff does not compel discovery and submits to Defendant’s objections, he cannot complain that he did not receive necessary information.

Finally, Plaintiff argues that Defendant and Ochoaortiz were engaged in a joint enterprise. “[W]hen used to describe a business or commercial undertaking . . . ,” the term joint enterprise is “used interchangeably with the term ‘joint venture’ and courts have not drawn any significant legal distinction between the two.” (County of Riverside v. Loma Linda University (1981) 118 Cal.App.3d 300, 313, fn. 4.) “[I]n order to create a joint venture there must be an agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control.” (Holtz v. United Plumbing & Heating Co. (1957) 49 Cal.2d 501, 506-507.) Plaintiff has not proffered any evidence to suggest that Defendant and Ochoaortiz had any control over each other’s business operations or that there was an agreement to share in each other’s profits and losses. Accordingly, Plaintiff has not advanced evidence to show that Defendant and Ochoaortiz were engaged in a joint venture.

PLAINTIFF’S COUNSEL’S ACCUSATION AGAINST DEFENDANT’S COUNSEL

Plaintiff’s counsel argues that Ochoaortiz’s declaration, proffered in support of Defendant’s motion for summary judgment, is an “attorney-fabricated declaration.” (Plaintiff’s Memorandum of Points and Authorities, p. 6.) Plaintiff’s counsel’s relies on his assertion that it is “inconsistent with the evidence garnered in this case.” (Ibid.) Plaintiff’s counsel relies upon the fact that the declaration was prepared by Defendant’s counsel and lists Defendant’s counsel’s name and address at the top of the pleading paper. Finally, Plaintiff’s counsel relies upon the fact that Ochoaortiz used an interpreter for his deposition but signed a declaration written in English.

This is a serious accusation. To accuse another member of the bar of fabricating a declaration and suborning perjury is akin to pulling a fire alarm in a crowded movie theater: There had better be a fire. In this case, there is not even smoke. The mere fact that the declaration was prepared by counsel and has counsel’s name and address at the top of the pleading paper is not extraordinary, as discussed. Nor is there anything necessarily suspicious about Ochoaortiz’s use of an interpreter for a deposition but his willingness to sign a declaration written in English, as discussed. Finally, while the Court does not know the record as well as the attorneys, it appears to the Court that Ochoaortiz’s declaration is largely consistent with the other evidence in the case. It also appears to the Court that any inconsistencies may be explained as those germane to every case or the product of Plaintiff’s counsel’s poor and/or aggressive deposition questions, the answers to several of which were objectionable.

The California Code of Judicial Ethics Canon 3(D)(2) requires judges to take corrective action whenever the judge has personal knowledge or concludes in a judicial decision that an attorney has committed misconduct or violated the Rules of Professional conduct. The Court admonishes Plaintiff’s counsel not to make unfounded accusations of such a serious nature. Should Plaintiff’s counsel persist in doing so, the Court will be forced to take more firm action in the future.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.

DATED: February 24, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC642976    Hearing Date: January 14, 2020    Dept: 5

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 5

raphael barat ,

Plaintiff,

v.

jhonny wilfredo ochoaortiz, et al.,

Defendants.

Case No.: BC642976

Hearing Date: January 14, 2020

[TENTATIVE] order RE:

defendant’s MOTION FOR SUMMARY JUDGMENT

Plaintiff Raphael Barat (“Plaintiff”) filed this action against Defendant Home Depot U.S.A., Inc. (“Defendant”) following a motor vehicle collision. Plaintiff alleges that Defendant Johnny Wilfredo Ochoaortiz (“Ochoaortiz”) collided with Plaintiff when Ochoaortiz made an unsafe left turn at the intersection adjacent to Defendant’s store. It is undisputed that at the time of the accident, Ochoaortiz was a day laborer who had congregated with other laborers in the parking lot of Defendant’s store. Plaintiff alleges that Defendant created an unsafe condition, which caused the accident, by allowing the laborers to congregate in the parking lot.

Defendant moves for summary judgment on Plaintiff’s complaint. Plaintiff objects because Defendant did not serve the declaration of Brenda Geilim in support of the motion until November 21, 2019. Given that Defendant served the Declaration of Brenda Geilim by mail, the earliest date on which the Court could consider a motion for summary judgment based on the Declaration of Brenda Geilim is February 10, 2020. (Code Civ. Proc., § 437c, subd. (a)(2).) Therefore, the Court cannot consider the motion as noticed.

CONCLUSION AND ORDER

The Court continues the hearing on Defendant’s motion for summary judgment to February 24, 2020, at 1:30 p.m. The Court grants leave to Plaintiff to file a supplemental opposition, and to Defendant to file a supplemental reply brief, within statutory time periods. Defendant shall provide notice and file proof of such with the Court.

DATED: January 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC642976    Hearing Date: October 31, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

raphael barat,

Plaintiff,

v.

johnny wilfredo ochoaortiz, et al.,

Defendants.

Case No.: BC642976

Hearing Date: October 31, 2019

[TENTATIVE] order RE:

Plaintiff’s motion to compel deposition

Defendant’s motion for protective order

BACKGROUND

Plaintiff Raphael Barat (“Plaintiff”) filed this action against Defendant Home Depot U.S.A., Inc. (“Defendant”) following a motor vehicle collision. Plaintiff alleges that Defendant Johnny Wilfredo Ochoaortiz (“Ochoaortiz”) collided with Plaintiff when Ochoaortiz made an unsafe left turn at the intersection adjacent to Defendant’s store. It is undisputed that at the time of the accident, Ochoaortiz was a day laborer who congregated with other laborers in the parking lot of Defendant’s store. Plaintiff moves to compel the deposition of Defendant’s persons most qualified to testify on specified topics. Defendant moves for a protective order to preclude Plaintiff from taking the deposition of its person most qualified to testify. The Court grants Plaintiff’s motion to compel and denies Defendant’s motion for a protective order.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).) However, Code of Civil Procedure section 2025.420 provides, “The court, for good cause shown, may make any order that justice requires to protect any . . . deponent . . . from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . . .”  (Code Civ. Proc., § 2025.420.)

DISCUSSION

Plaintiff has the right to take Defendant’s deposition and is entitled to do so without leave of court at any time after Plaintiff served Defendant, or after Defendant appeared in the action. (See Code Civ. Proc., § 2025.210, subd. (a).) Defendant argues that it should not have to designate persons most qualified to testify because “Plaintiffs Deposition notices seek information and testimony concerning topics that are clearly unrelated to the issue of whether or not Defendant Ochoaortiz, an independent day laborer, was an agent or employee of Home Depot at the time of the subject incident. The incident at issue did not occur on Home Depot Property nor did it involve any Home Depot agent or employee.” (Robert A. Fisher, ¶ 6.) The Court disagrees. Plaintiff’s theory of the case is that Defendant permits day laborers to congregate in their parking lots, which increases traffic and causes accidents on the adjacent streets. Plaintiff is entitled to take discovery to determine whether Defendant did, in fact, permit day laborers to congregate in the parking lot on the date of the incident, thereby creating a dangerous condition. Plaintiff also is entitled to take discovery to determine whether Defendant took any steps—or no steps at all—to protect customers from the risk of accidents from increased traffic leaving Defendant’s parking lot.

Similarly, Plaintiff’s theory of the case is that there is a special relationship between Defendant and the day laborers. If such a relationship exists, Defendant may be liable for any negligence by Ochoaortiz because a principal is liable for the actions of its agents. (See Civ. Code, § 2330.) A principal may establish an agency relationship be conferring authority to an agent to act on its behalf, or by creating the appearance of ostensible authority. (See Civ. Code, §§ 2334, 2316.) Therefore, Plaintiff is entitled to explore whether there is an agency relationship between Defendant and the day laborers. Defendant cannot prevail simply by asserting that no such relationship exists.

Defendant argues that it has no liability in this case and opines that the Court will grant summary judgment. Defendant misses the point. Even if Defendant is correct, Plaintiff still is entitled to conduct discovery in order to oppose Defendant’s motion for summary judgment. Even if the Court grants summary judgment, Defendant’s depositions may be relevant to Plaintiff’s case against Ochoaortiz. Therefore, Plaintiff’s motion to compel is granted and Defendant’s motion for a protective order is denied.

The Court declines to award sanctions. The Court finds that this was a good-faith dispute, and the record suggests that both parties bear responsibility for the discovery dispute. For this reason, the Court concludes that an award of sanctions to either side would be unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) The Court orders the parties to meet and confer regarding the scheduling of the deposition (or depositions) of Defendant’s person (or persons) most qualified to testify.

CONCLUSION AND ORDER

Plaintiff’s motion to compel Defendant to produce a person (or persons) most qualified to testify at deposition is granted. The deposition (or depositions) shall occur within twenty (20) days of notice unless the parties stipulate to a different date (and, if necessary, a continuance of the hearing on the motion for summary judgment and trial). Defendant’s motion for a protective order is denied. The Court declines to award sanctions.

The Court continues the hearing on the motion for summary judgment from December 18, 2019, at 1:30 p.m. to January 14, 2020, at 1:30 p.m. The Court’s clerk shall provide notice.

DATED: October 31, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court