This case was last updated from Los Angeles County Superior Courts on 01/12/2022 at 11:46:54 (UTC).

GRACE ALBA, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, SYLVIA ALBA VS SPARKLETTS, INC., A CORPORATION, ET AL.

Case Summary

On 03/15/2019 GRACE ALBA, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, SYLVIA ALBA filed a Personal Injury - Other Product Liability lawsuit against SPARKLETTS, INC , A CORPORATION. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH, PETER A. HERNANDEZ, SAMANTHA JESSNER, GLORIA WHITE-BROWN and DAVID J. COWAN. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9102

  • Filing Date:

    03/15/2019

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Product Liability

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

PETER A. HERNANDEZ

SAMANTHA JESSNER

GLORIA WHITE-BROWN

DAVID J. COWAN

 

Party Details

Plaintiff

ALBA A MINOR BY AND THROUGH HER GUARDIAN AD LITEM SYLVIA ALBA GRACE

Defendants and Cross Plaintiffs

SPARKLETTS INC. A CORPORATION

CRYSTAL MOUNTAIN A CORPORATION

DS SERVICES OF AMERICA INC. A CORPORATION

COSTCO INC. A CORPORATION

CRYSTAL MOUNTAIN PRODUCTS LIMITED

Cross Defendant

CRYSTAL MOUNTAIN INTERNATIONAL LIMITED

Attorney/Law Firm Details

Plaintiff Attorney

GLASSMAN ROBERT

Defendant Attorneys

GROSS JAMIE L.

JOFFE STEVEN

Cross Defendant Attorney

KUHNE JAMES

 

Court Documents

Proof of Service (not Summons and Complaint)

7/13/2020: Proof of Service (not Summons and Complaint)

Reply - REPLY ISO MOTION

7/13/2020: Reply - REPLY ISO MOTION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

7/16/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

7/16/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Ruling

7/20/2020: Notice of Ruling

Declaration - DECLARATION SUPPLEMENTAL DECLARATION

9/11/2020: Declaration - DECLARATION SUPPLEMENTAL DECLARATION

Opposition - OPPOSITION PLAINTIFF'S SUPPLEMENTAL OMNIBUS OPPOSITION TO DEFENDANT DS SERVICES OF AMERICA, INC.'S MOTIONS FOR PROTECTIVE ORDER AND SEALING OF RECORDS

10/1/2020: Opposition - OPPOSITION PLAINTIFF'S SUPPLEMENTAL OMNIBUS OPPOSITION TO DEFENDANT DS SERVICES OF AMERICA, INC.'S MOTIONS FOR PROTECTIVE ORDER AND SEALING OF RECORDS

Supplemental Declaration - SUPPLEMENTAL DECLARATION SECOND SUPPLEMENTAL DECLARATION OF ASHLEY R. MORRIS

10/7/2020: Supplemental Declaration - SUPPLEMENTAL DECLARATION SECOND SUPPLEMENTAL DECLARATION OF ASHLEY R. MORRIS

Reply - REPLY SUPPLEMENTAL REPLY IN SUPPORT OF MOTION

10/7/2020: Reply - REPLY SUPPLEMENTAL REPLY IN SUPPORT OF MOTION

Proof of Service (not Summons and Complaint)

10/7/2020: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

10/15/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...) OF 10/15/2020

10/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...) OF 10/15/2020

Order - ORDER TENTATIVE RULING

11/6/2020: Order - ORDER TENTATIVE RULING

Notice of Lodging - NOTICE OF LODGING DS SERVICES NOTICE OF LODGING RECORDS CONDITIONALLY UNDER SEAL PURSUANT TO COURT ORDER ON OCTOBER 15, 2020

11/6/2020: Notice of Lodging - NOTICE OF LODGING DS SERVICES NOTICE OF LODGING RECORDS CONDITIONALLY UNDER SEAL PURSUANT TO COURT ORDER ON OCTOBER 15, 2020

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

11/6/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR PROTECTIVE ORDER; HEARING ON MOTION TO ...)

Notice of Ruling

11/6/2020: Notice of Ruling

Notice of Ruling

12/4/2020: Notice of Ruling

Order - ORDER TENTATIVE RULING

12/4/2020: Order - ORDER TENTATIVE RULING

149 More Documents Available

 

Docket Entries

  • 04/05/2021
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Vacated by Court

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  • 02/23/2021
  • DocketRequest for Dismissal; Filed by Costco Wholesale Corporation Erroneously Sued As Costco, Inc., a corporation (Cross-Complainant); DS Services of America, Inc., a corporation (Cross-Complainant)

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  • 02/23/2021
  • DocketRequest for Dismissal; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 02/18/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 02/10/2021
  • DocketNotice of Ruling; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 02/08/2021
  • Docketat 09:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Ex Parte Application (.) - Held - Motion Granted

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  • 02/08/2021
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 02/08/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement); Hearing on Ex...)); Filed by Clerk

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  • 02/08/2021
  • DocketOrder for Withdrawal of Funds From Blocked Account; Filed by Robert Glassman (Attorney)

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  • 02/01/2021
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Continued - Court's Motion

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204 More Docket Entries
  • 05/07/2019
  • DocketProof of Personal Service; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 05/06/2019
  • DocketProof of Personal Service; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 05/06/2019
  • DocketProof of Personal Service; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 04/26/2019
  • DocketSummons (on Complaint); Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 03/25/2019
  • DocketCertificate of Mailing for ([PI General Order] and Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 03/25/2019
  • DocketPI General Order; Filed by Clerk

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  • 03/15/2019
  • DocketComplaint; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 03/15/2019
  • DocketCivil Case Cover Sheet; Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 03/15/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (re: Grace); Filed by Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (Plaintiff)

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  • 03/15/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******9102    Hearing Date: November 01, 2019    Dept: J

HEARING DATE: Friday, November 1, 2019

NOTICE: Unclear[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba’s MOTION FOR AN ORDER GRANTING PREFERENTIAL TRIAL DATE

Responding Party: None (unopposed, as of 10/22/19, 2:21 p.m.; due 10/21/19)

Tentative Ruling

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba’s unopposed Motion for an Order Granting Preferential Trial Date is GRANTED, contingent upon counsel for Plaintiff’s production of a valid proof of service reflecting CCP ; 1005(b) notice of the continued hearing date at or before the time of the hearing.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

A Status Conference is set for November 1, 2019.

Legal Standard

“A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. . .” (CCP ;36(b).)

If a motion is granted under CCP ; 36, the court must set a trial date not more than 120 days from the date that the motion is granted. (CCP ; 36(f).) Finally, CCP ; 36(c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.

Discussion

Plaintiff moves the court, per CCP ; 36(b), for an order granting trial preference in this action.

At the outset, it is unclear to the court whether or not Plaintiff gave notice of the rescheduled November 1, 2019 hearing date. The following ruling, then, is contingent upon counsel for Plaintiff’s production of a valid proof of service reflecting CCP ; 1005(b) notice of the continued hearing date at or before the time of the hearing.

Plaintiff was born on July 18, 2017. (Glassman Decl., ¶3.) The court finds that Plaintiff has a substantial interest in the action because she is the only named Plaintiff in the case. Plaintiff’s counsel represents that all essential parties have been served or have appeared in this action. (Id., ¶2.)

The court determines that Plaintiff has satisfied the requirements under CCP ; 36(b); accordingly, the motion is GRANTED. The Trial and Final Status Conference dates will be set at the time of the hearing.


[1] The motion was filed September 9, 2019 and originally set for hearing on October 4, 2019. On October 1, 2019, a “Stipulation and [Proposed] Scheduling Order for Preferential Trial Setting” was filed. The stipulation/order, however, was never entered. On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department; the October 3, 2019 minute order from the personal injury hub (Department 5) reflects that the hearing on the motion was taken off calendar and would be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court. The motion was subsequently rescheduled for hearing in this department for November 1, 2019. There is no indication on ecourt, however, that moving party provided notice of the rescheduled November 1, 2019 hearing date.


Case Number: *******9102    Hearing Date: December 12, 2019    Dept: J

HEARING DATE: Thursday, December 12, 2019

NOTICE: Motions #1 & #2: OK

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant Crystal Mountain Products, Inc.’s MOTION FOR APPEARANCE OF

JAMES J. NALLY AS COUNSEL PRO HAC VICE

Responding Party: None (unopposed, as of 11/27/19, 10:31 a.m.; due 11/27/19)

2. Defendant Crystal Mountain Products, Inc.’s MOTION FOR APPEARANCE OF

JOSEPH T. RIVERA, JR. AS COUNSEL PRO HAC VICE

Responding Party: None (unopposed, as of 11/27/19, 10:31 a.m.; due 11/27/19)

Tentative Ruling

1. Defendant Crystal Mountain Products, Inc.’s Motion for Appearance of James J. Nally as Counsel Pro Hac Vice is GRANTED, contingent upon the filing of a supplemental declaration on or before the date and time of the hearing (see below).

2. Defendant Crystal Mountain Products, Inc.’s Motion for Appearance of Joseph T. Rivera, Jr. as Counsel Pro Hac Vice is GRANTED.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

1. Motion for Pro Hac Vice Re: James J. Nally

Legal Standard

“A person who is not a licensee of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record. No person is eligible to appear as counsel pro hac vice under this rule if the person is: (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California.” (California Rules of Court (“CRC”) Rule 9.40(a).)

“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.” (CRC Rule 9.40(c)(1).)

“The application must state: (1) The applicant's residence and office address; (2) The courts to

which the applicant has been admitted to practice and the dates of admission; (3) That the

applicant is a licensee in good standing in those courts; (4) That the applicant is not currently

suspended or disbarred in any court; (5) The title of each court and cause in which the applicant

has filed an application to appear as counsel pro hac vice in this state in the preceding two years,

the date of each application, and whether or not it was granted; and (6) The name, address,

and telephone number of the active licensee of the State Bar of California who is attorney

of record.” (CRC Rule 9.40(d).)

“An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar. . .” (CRC Rule 9.40(e).)

Discussion

Crystal Mountain moves, pursuant to CRC Rule 9.40, for an order allowing the pro hac vice admission of attorney James J. Nally (“Nally”).

Nally is instructed to file a supplemental declaration on or before the date and time of the hearing, advising as to the dates of his admission to the following courts: United States District Court, Eastern District of New York; United States District Court, Southern District of New York and United States District Court, Eastern District of Wisconsin. The motion otherwise complies with the requirements of CRC Rule 9.40 and will be GRANTED, contingent upon receipt of this information.

2. Motion for Pro Hac Vice Re: Joseph T. Rivera, Jr.

Legal Standard

See above.

Discussion

Crystal Mountain moves, pursuant to CRC Rule 9.40, for an order allowing the pro hac vice admission of attorney Joseph T. Rivera, Jr.

The motion complies with the requirements of CRC Rule 9.40; accordingly, the motion is GRANTED.


Case Number: *******9102    Hearing Date: January 06, 2020    Dept: J

HEARING DATE: Monday, January 6, 2020

NOTICE: Motions #1 & #2: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant Crystal Mountain Products, Inc.’s MOTION FOR APPEARANCE OF

JAMES J. NALLY AS COUNSEL PRO HAC VICE

Responding Party: None (unopposed)[2]

2. Defendant Crystal Mountain Products, Inc.’s MOTION FOR APPEARANCE OF

JOSEPH T. RIVERA, JR. AS COUNSEL PRO HAC VICE

Responding Party: None (unopposed)

Tentative Ruling

1. Defendant Crystal Mountain Products, Inc.’s Motion for Appearance of James J. Nally as Counsel Pro Hac Vice is GRANTED, contingent upon the filing of a supplemental declaration on or before the date and time of the hearing (see below).

2. Defendant Crystal Mountain Products, Inc.’s Motion for Appearance of Joseph T. Rivera, Jr. as Counsel Pro Hac Vice is GRANTED.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

1. Motion for Pro Hac Vice Re: James J. Nally

Legal Standard

“A person who is not a licensee of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record. No person is eligible to appear as counsel pro hac vice under this rule if the person is: (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California.” (California Rules of Court (“CRC”) Rule 9.40(a).)

“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period.” (CRC Rule 9.40(c)(1).)

“The application must state: (1) The applicant's residence and office address; (2) The courts to

which the applicant has been admitted to practice and the dates of admission; (3) That the

applicant is a licensee in good standing in those courts; (4) That the applicant is not currently

suspended or disbarred in any court; (5) The title of each court and cause in which the applicant

has filed an application to appear as counsel pro hac vice in this state in the preceding two years,

the date of each application, and whether or not it was granted; and (6) The name, address,

and telephone number of the active licensee of the State Bar of California who is attorney

of record.” (CRC Rule 9.40(d).)

“An applicant for permission to appear as counsel pro hac vice under this rule must pay a reasonable fee not exceeding $50 to the State Bar of California with the copy of the application and the notice of hearing that is served on the State Bar. . .” (CRC Rule 9.40(e).)

Discussion

Crystal Mountain moves, pursuant to CRC Rule 9.40, for an order allowing the pro hac vice admission of attorney James J. Nally (“Nally”).

Nally is instructed to file a supplemental declaration on or before the date and time of the hearing, advising as to the dates of his admission to the following courts: United States District Court, Eastern District of New York; United States District Court, Southern District of New York and United States District Court, Eastern District of Wisconsin. The motion otherwise complies with the requirements of CRC Rule 9.40 and will be GRANTED, contingent upon receipt of this information.

2. Motion for Pro Hac Vice Re: Joseph T. Rivera, Jr.

Legal Standard

See above.

Discussion

Crystal Mountain moves, pursuant to CRC Rule 9.40, for an order allowing the pro hac vice admission of attorney Joseph T. Rivera, Jr.

The motion complies with the requirements of CRC Rule 9.40; accordingly, the motion is GRANTED.


[1] The applications were filed on November 18, 2019 and originally set for hearing on December 12, 2019. On December 6, 2019, the hearing was rescheduled to January 6, 2020, on the court’s own motion. On December 10, 2019, moving party filed (mail-served December 9, 2019) “Notice[s] of Continued Hearing. . .,” advising therein of the January 6, 2020 hearing date.

[2] OppositionS were due November 27, 2019, per the originally scheduled hearing date.


Case Number: *******9102    Hearing Date: January 27, 2020    Dept: J

HEARING DATE: Monday, January 27, 2020

NOTICE: Motion #1: OK

Motion #2: NOT OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s MOTION TO COMPEL DEFENDANT CRYSTAL MOUNTAIN PRODUCTS, INC.’S RESPONSES TO UNANSWERED DISCOVERY

Responding Party: Defendant, Crystal Mountain Products, Inc.

2. Defendant Crystal Mountain Products, Inc.’s MOTION TO BE RELIEVED FROM WAIVER OF OBJECTIONS

Responding Party: None (unopposed, as of 1/21/20, 3:05 p.m.)

Tentative Ruling

1. See below.

2. See below.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

1. Motion to Compel

Legal Standard

A response to interrogatories is due 30 days after service. (CCP ; 2030.260(a).) If a party to

whom the interrogatories are directed fails to serve a timely response to it, the party propounding

the interrogatories may move for an order compelling response to the interrogatories. (CCP ;

2030.290(b).) The court shall impose a monetary sanction against any party, person, or attorney

who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one

subject to the sanction acted with substantial justification or that other circumstances make the

imposition of the sanction unjust.” (CCP ; 2030.290(c).)

Discussion

Plaintiff moves the court for an order compelling Crystal Mountain to provide responses to

Plaintiff’s Special Interrogatories, Set One.

On The court is inclined to briefly CONTINUE the hearing on the motion to ____________________. Counsel are instructed to meet and confer in the interim specifically regarding the issues of waiver of objections and as to Nos. 43-48 and to file a Joint Status Report no later than 5 court days before the continued hearing date, advising as to any outstanding issues.

2. Motion Re: Relief from Waiver

Legal Standard

If a party to whom interrogatories are directed fails to serve a timely response, the party to whom the interrogatories are directed waives any CCP ; 2030.230 right to exercise the option to produce writings, as well as any objection to the interrogatories, including on based on privilege or work product. (CCP ; 2030.290.) The court, on motion, may relieve that party from the aforesaid waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.23, and 2030.240 and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Id.)

Discussion

At the outset, the court notes that the instant motion was filed and overnight mail-served on January 13, 2020 and set for hearing on January 27, 2020, which reflects insufficient CCP ; 1005(b) notice. The court further notes that there is no indication on ecourt that moving party ever obtained a Court Reservation System Number for the instant motion or paid a motion filing fee. The motion is not accompanied by a Court Reservation Receipt. The court is inclined to briefly CONTINUE the hearing on the motion to ____________________, to be heard concurrently with the above motion. Counsel are instructed to meet and confer in the interim specifically regarding the issues of waiver of objections and as to Nos. 43-48 and to file a Joint Status Report no later than 5 court days before the continued hearing date, advising as to any outstanding issues.


[1] Motion #2 was filed and overnight mail-served on January 13, 2020 and set for hearing on January 27, 2020, which reflects CCP ; 1005(b) insufficient notice (i.e., “all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . . if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. . .)


Case Number: *******9102    Hearing Date: February 10, 2020    Dept: J

HEARING DATE: Monday, February 10, 2020

NOTICE: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s MOTION TO COMPEL DEFENDANT CRYSTAL MOUNTAIN PRODUCTS, INC.’S RESPONSES TO UNANSWERED DISCOVERY

Responding Party: Defendant, Crystal Mountain Products, Inc.

2. Defendant Crystal Mountain Products, Inc.’s MOTION TO BE RELIEVED FROM WAIVER OF OBJECTIONS

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian Ad

Litem, Sylvia Alba[2]

Tentative Ruling

1. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s Motion to Compel Defendant Crystal Mountain Products, Inc.’s Responses to Unanswered Discovery is DENIED as MOOT. Sanctions are declined.

2. Defendant Crystal Mountain Products, Inc.’s Motion to be Relieved from Waiver of Objections is GRANTED, provided Rivera files a supplemental declaration which corroborates 9:7-12 of the motion on or before the date and time of the hearing.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

1. Motion to Compel

Legal Standard

A response to interrogatories is due 30 days after service. (CCP ; 2030.260(a).) If a party to

whom the interrogatories are directed fails to serve a timely response to it, the party propounding

the interrogatories may move for an order compelling response to the interrogatories. (CCP ;

2030.290(b).) The court shall impose a monetary sanction against any party, person, or attorney

who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one

subject to the sanction acted with substantial justification or that other circumstances make the

imposition of the sanction unjust.” (CCP ; 2030.290(c).)

Discussion

Plaintiff moves the court for an order compelling Crystal Mountain to provide responses to

Plaintiff’s Special Interrogatories, Set One.

The motion is DENIED as MOOT, based upon the ruling made on the motion below. To the extent Plaintiff contends that any of Crystal Mountain’s responses are inadequate, Plaintiff must file a motion to compel further responses. The court shall extend the 45-day limit to file any such motion to February 18, 2020, pursuant to the court’s inherent power. Plaintiff’s request for sanctions is declined.

2. Motion Re: Relief from Waiver

Legal Standard

If a party to whom interrogatories are directed fails to serve a timely response, the party to whom the interrogatories are directed waives any CCP ; 2030.230 right to exercise the option to produce writings, as well as any objection to the interrogatories, including on based on privilege or work product. (CCP ; 2030.290.) The court, on motion, may relieve that party from the aforesaid waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.23, and 2030.240 and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Id.)

Discussion

Crystal Mountain moves the court for relief of waiver of objections to Plaintiff’s Special Interrogatories, Set One.

Motion Filing Fee/Reservation

At the outset, the court notes that there is no indication on ecourt that moving party ever obtained a Court Reservation System Number for the instant motion or paid a motion filing fee. The motion is not accompanied by a Court Reservation Receipt. The court admonishes counsel in this regard and orders counsel to pay a $60.00 filing fee for the instant motion at or before the date and time of the hearing. All future motions are to be properly reserved and accompanied by a Court Reservation Receipt.

Merits

 

On October 30, 20219, Plaintiff served Plaintiff’s Special Interrogatories, Set One. (Rivera Decl., ¶2.) Crystal Mountain’s counsel Joseph T. Rivera, Jr. (“Rivera”) took off from work on November 15, 2019 to transport his father to and from the hospital for a hip replacement surgery and assisted him in his recovery for a couple of days following his November 16, 2019 discharge. (Id., ¶3.) Rivera also took off from work on November 29, 2019 to transport his aunt to and from the hospital for bariatric surgery and assisted her in her recovery for a couple of days following her November 30, 2019 discharge. (Id., ¶4.) Crystal Mountain’s deadline to respond was December 4, 2019. (Id., ¶5.) Crystal Mountain represents that, in the midst of these surgeries and the holidays, counsel neglected to calendar the December 4, 2019 due date for responding to the subject discovery and only realized this mistake upon Plaintiff’s counsel’s December 16, 2019 email. Nonetheless, counsel was in the process of drafting the responsive discovery and only delayed responding through inadvertence and failure to properly calculate deadlines. (Motion, 9:7-12.) This representation is omitted from Rivera’s declaration. The court instructs Rivera to file a supplemental declaration addressing 9:7-12 of the motion on or before the date and time of the hearing.

On December 16, 2019, Plaintiff’s counsel Robert Glassman (“Glassman”) emailed Rivera and requested responses on or before December 19, 2019. (Id., ¶6.) On December 17, 2019, Rivera advised Glassman that he was working on the responses and would provide them as soon as possible. (Id., ¶7.) After close of business on Friday, December 20, 2019, Rivera received a signed verification from Crystal Mountain. (Id., ¶8.) Crystal Mountain’s responses were served on December 24, 2019, due to the holidays and short staffing. (Id., ¶9.)

The court determines that, provided Rivera files a supplemental declaration which corroborates 9:7-12 of the motion on or before the date and time of the hearing, Rivera has adequately shown mistake, inadvertence or excusable neglect for the purpose of CCP ; 2030.290.

The court further determines that Crystal Mountain’s responses served December 24, 2019 reflect substantial compliance with Sections 2030.210, 2030.220, 2030.23, and 2030.240. Although Plaintiff argues that Crystal Mountain’s responses are not Code-compliant, Plaintiff concedes that the only responses it asserts are deficient are Nos. 43-48.

Accordingly, the motion is GRANTED, contingent on the above.


[1] Motion #1 was filed and personally served on December 27, 2019 and set for hearing on January 27, 2020. Motion #2 was filed and overnight mail-served on January 13, 2020 and set for hearing on January 27, 2020 (i.e., reflecting insufficient CCP ; 1005(b) notice). The court’s tentative ruling for January 27, 2020 advised the parties of the court’s inclination to continue the hearing on Motions #1 and #2 to February 10, 2020. The court instructed the parties to meet and confer in the interim regarding the issues of waiver of objections and as to Nos. 43-48 and to file a Joint Status Report no later than 5 court days before the continued hearing date, advising as to any outstanding issues. The court’s January 27, 2020 minute order adopted the tentative ruling and continued the hearing to February 10, 2020; notice was waived. On February 3, 2020, a Joint Status Report was filed.

[2] Addressed via reply to Motion #1.


Case Number: *******9102    Hearing Date: March 03, 2020    Dept: J

HEARING DATE: Tuesday, March 3, 2020

NOTICE: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s MOTION FOR AN ORDER THAT TRUTH OF MATTERS BE DEEMED ADMITTED PURSUANT TO CODE OF CIVIL PROCEDURE ; 2033.280(b)

Responding Party: Defendants, DS Services of America, Inc. and Costco Wholesale

Corporation

Tentative Ruling

Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

Motion for an Order that Truth of Matters be Deemed Admitted Pursuant to Code of Civil

Procedure ; 2033.280(b) is DENIED as MOOT.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc., DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

Legal Standard

A response to requests for admission is due 30 days after service. (CCP ; 2033.250(a).) If a

party to whom the requests for admission are directed fails to serve a timely response, the

requesting party may move for an order that the genuineness of any documents and the truth of

any matters specified in the requests be deemed admitted. (CCP ; 2033.280(b).) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (CCP ; 2033.280(c).) It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (CCP ; 2033.280(c).)

Again, if tardy responses are served before the hearing on the motion, “[s]ubdivision (c) of section 2033.280 requires the court to evaluate whether the ‘proposed response to the requests for admission’ substantially complies with section 2033.220. This suggests that the court evaluate qualitatively the proposed response to RFAs in toto to determine whether it substantially complies with the code. It does not permit the court to segregate each individual RFA response for the purpose of finding that portions of the document are code-compliant (and will therefore be accepted), while concluding that other portions are noncompliant (and will thus be rejected). Furthermore. . . there is an effective statutory vehicle by which a propounding party may seek a court order compelling a responding party to cure individual RFA responses deemed not to be in compliance with section 2033.220--namely, a motion to compel further responses under section 2033.290. . .” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779-780.)

Discussion

Plaintiff moves the court for an order that the truth of matters requested in Plaintiff’s Requests

for Admissions, Set One, served on Costco and DS Services (hereinafter collectively,

“Defendants”) be deemed admitted.

On December 16, 2019, Plaintiff served Requests for Admissions, Set One, and Form Interrogatories, Set Two. (Glassman Decl., ¶¶2 and 6, Exh. 2.) Responses thereto were due on January 20, 2020. (Id., ¶3.) Plaintiff’s counsel granted Defendants’ counsel’s request for extensions of time, such that responses were due February 3, 2020. (Id.) Defendant did not provide any responses by the deadline. (Id.) On February 10, 2020, Plaintiff’s counsel emailed Defendants’ counsel, asking about the whereabouts of the responses and advising that a motion would be filed if verified responses without objections were not provided by 5:00 p.m. on February 12, 2020. (Id., ¶¶4-5, Exh. 1.) Defendants’ counsel advised that on February 7, 2020, 4 days after the responses were due, their law firm had a cyber incident and therefore could not provide responses. (Id., ¶4.) No responses have been served as of this filing. (Id.)

The motion is DENIED as MOOT. The court determines that the verified discovery responses attached to Defendants’ opposition reflect substantial compliance with CCP ; 2033.220.


[1] On February 13, 2020, Plaintiff filed an “Ex Parte Application to Advance and Specially Set Plaintiff’s Motion for an Order that Truth of Matters be Deemed Admitted Pursuant to Code of Civil Procedure ; 2033.280(b).” On February 18, 2020, the court granted the ex parte application and set the matter for hearing on March 3, 2020; counsel for Plaintiff was ordered to give notice. On February 21, 2020, Plaintiff filed and mail-served a “Notice of Ruling Regarding Plaintiff’s Ex Parte Application to Advance and Specially Set Plaintiff’s Motion for an Order that Truth of Matters be Deemed Admitted Pursuant to Code of Civil Procedure ; 2033.280(b)


Case Number: *******9102    Hearing Date: March 13, 2020    Dept: J

HEARING DATE: Friday, March 13, 2020

NOTICE: Motions #1 and #2: OK[1]

Motions #3 and #4: OK[2]

Motion #5: OK

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s MOTION TO COMPEL DEFENDANT CRYSTAL MOUNTAIN PRODUCTS, INC.’S RESPONSES TO UNANSWERED DISCOVERY

Responding Party: Defendant, Crystal Mountain Products, Inc.

2. Defendant Crystal Mountain Products, Inc.’s MOTION TO BE RELIEVED FROM WAIVER OF OBJECTIONS

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian Ad

Litem, Sylvia Alba[3]

3. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

MOTION TO COMPEL DEFENDANT DS SERVICES, INC.’s FURTHER RESPONSES

TO PLAINTIFF’S FIRST SET OF SPECIAL INTERROGATORIES NOS. 43-48

Responding Party: Defendant, DS Services, Inc.[4]

4. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

MOTION TO COMPEL DEFENDANT COSTCO, INC.’s FURTHER RESPONSES

TO PLAINTIFF’S FIRST SET OF SPECIAL INTERROGATORIES NOS. 43-48

Responding Party: Defendant Costco, Inc.[5]

5. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

MOTION TO COMPEL DEFENDANT CRYSTAL MOUNTAIN’S FURTHER

RESPONSES TO PLAINTIFF’S FIRST SET OF SPECIAL INTERROGATORIES NOS.

43-48

Responding Party: Defendant, Crystal Mountain.[6]

Tentative Ruling

1. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s Motion to Compel Defendant Crystal Mountain Products, Inc.’s Responses to Unanswered Discovery is DENIED as MOOT. Sanctions are declined.

2. Defendant Crystal Mountain Products, Inc.’s Motion to be Relieved from Waiver of Objections is GRANTED.

3. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

Motion to Compel Defendant DS Services, Inc.’s Further Responses to Plaintiff’s First Set

of Special Interrogatories Nos. 43-48 is GRANTED. DS Services is ordered to provide

supplemental responses, consistent with DS Services’ position as to the scope of the

discovery, within 20 days of the date of the hearing.

4. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

Motion to Compel Defendant Costco, Inc.’s Further Responses to Plaintiff’s First Set

of Special Interrogatories Nos. 43-48 is GRANTED. Costco is ordered to provide

supplemental responses, consistent with Costco’s position as to the scope of the discovery,

within 20 days of the date of the hearing.

 

5. Plaintiff Grace Alba, a minor, by and through her Guardian Ad Litem, Sylvia Alba’s

Motion to Compel Defendant Crystal Mountain’s Further Responses to Plaintiff’s First Set

of Special Interrogatories Nos. 43-48 is GRANTED. Crystal Mountain is ordered to

provide supplemental responses, consistent with Crystal Mountain’s scope of the discovery,

within 20 days of the date of the hearing.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc. (“Sparkletts”), DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) (“Crystal Mountain”) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department.

The Final Status Conference is set for April 3, 2010. Trial is set for April 27, 2020 (preference).

1. Motion to Compel

Legal Standard

A response to interrogatories is due 30 days after service. (CCP ; 2030.260(a).) If a party to

whom the interrogatories are directed fails to serve a timely response to it, the party propounding

the interrogatories may move for an order compelling response to the interrogatories. (CCP ;

2030.290(b).) The court shall impose a monetary sanction against any party, person, or attorney

who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one

subject to the sanction acted with substantial justification or that other circumstances make the

imposition of the sanction unjust.” (CCP ; 2030.290(c).)

Discussion

Plaintiff moves the court for an order compelling Crystal Mountain to provide responses to

Plaintiff’s Special Interrogatories, Set One.

The motion is DENIED as MOOT, based upon the ruling made on the motion below. To the extent Plaintiff contends that any of Crystal Mountain’s responses are inadequate, Plaintiff must file a motion to compel further responses. The court shall extend the 45-day limit to file any such motion to February 18, 2020, pursuant to the court’s inherent power. Plaintiff’s request for sanctions is declined.

2. Motion Re: Relief from Waiver

Legal Standard

If a party to whom interrogatories are directed fails to serve a timely response, the party to whom the interrogatories are directed waives any CCP ; 2030.230 right to exercise the option to produce writings, as well as any objection to the interrogatories, including on based on privilege or work product. (CCP ; 2030.290.) The court, on motion, may relieve that party from the aforesaid waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.23, and 2030.240 and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Id.)

Discussion

Crystal Mountain moves the court for relief of waiver of objections to Plaintiff’s Special Interrogatories, Set One.

Motion Filing Fee/Reservation

At the outset, the court notes that there is no indication on ecourt that moving party ever obtained a Court Reservation System Number for the instant motion or paid a motion filing fee. The motion is not accompanied by a Court Reservation Receipt. The court admonishes counsel in this regard and orders counsel to pay a $60.00 filing fee for the instant motion at or before the date and time of the hearing, if not previously paid. All future motions are to be properly reserved and accompanied by a Court Reservation Receipt.

Merits

 

On October 30, 20219, Plaintiff served Plaintiff’s Special Interrogatories, Set One. (Rivera Decl., ¶2.) Crystal Mountain’s counsel Joseph T. Rivera, Jr. (“Rivera”) took off from work on November 15, 2019 to transport his father to and from the hospital for a hip replacement surgery and assisted him in his recovery for a couple of days following his November 16, 2019 discharge. (Id., ¶3.) Rivera also took off from work on November 29, 2019 to transport his aunt to and from the hospital for bariatric surgery and assisted her in her recovery for a couple of days following her November 30, 2019 discharge. (Id., ¶4.) Crystal Mountain’s deadline to respond was December 4, 2019. (Id., ¶5.) Crystal Mountain represents that, in the midst of these surgeries and the holidays, counsel neglected to calendar the December 4, 2019 due date for responding to the subject discovery and only realized this mistake upon Plaintiff’s counsel’s December 16, 2019 email. Nonetheless, counsel was in the process of drafting the responsive discovery and only delayed responding through inadvertence and failure to properly calculate deadlines. (Motion, 9:7-12.) This representation was omitted from Rivera’s original declaration.

On December 16, 2019, Plaintiff’s counsel Robert Glassman (“Glassman”) emailed Rivera and requested responses on or before December 19, 2019. (Id., ¶6.) On December 17, 2019, Rivera advised Glassman that he was working on the responses and would provide them as soon as possible. (Id., ¶7.) After close of business on Friday, December 20, 2019, Rivera received a signed verification from Crystal Mountain. (Id., ¶8.) Crystal Mountain’s responses were served on December 24, 2019, due to the holidays and short staffing. (Id., ¶9.)

The court, in its tentative ruling for the February 10, 2020 hearing, instructed Rivera to file a supplemental declaration addressing 9:7-12 of the motion on or before the date and time of the hearing. The February 10, 2020 hearing was continued to March 13, 2020.

On February 24, 2020, a supplemental declaration from Rivera was filed. Rivera confirms that the subject discovery was due on December 4, 2019, but states that “[i]n the midst of the aforementioned surgeries and holidays, [he] neglected to calendar the due date for responding to Plaintiff’s special interrogatories, first set, and only realized this mistake when Plaintiff contracted [him] on December 16, 2019.” (Supp. Rivera Decl., ¶¶5 and 11.) Rivera adds that “[w]hen counsel contacted [him] on December 16, 2019, [he] was in the process of drafting the responsive discovery and only delayed responding through inadvertence and [his] failure to properly calculate and calendar the discovery deadlines.” (Id., ¶12.) Rivera notes that he just returned to the office on February 24, 2020 after having been quarantined by his firm due to recent international travel and the global health concerns stemming from the coronavirus. (Id., ¶13.)

The court determines that Rivera has adequately shown mistake, inadvertence or excusable neglect for the purpose of CCP ; 2030.290.

The court further determines that Crystal Mountain’s responses served December 24, 2019 reflect substantial compliance with Sections 2030.210, 2030.220, 2030.23, and 2030.240. Although Plaintiff argues that Crystal Mountain’s responses are not Code-compliant, Plaintiff concedes that the only responses it asserts are deficient are Nos. 43-48.

Accordingly, the motion is GRANTED.

3. Motion to Compel Further Special Interrogatories Re: DS Services

Legal Standard

A party may move to compel further responses to interrogatories if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP ; 2030.300(a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP ;; 2016.040, 2030.300(b)(1).) In lieu of a separate statement required under the California Rules of Court (“CRC”), the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (CCP ; 2030.300(b)(2).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP ; 2030.300(c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (CCP ; 2030.300(d).)

Discussion

Plaintiff moves the court for an order to compel further responses by DS Services to Plaintiff’s Special Interrogatories, Set No. One, Nos. 43-48.

 

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil (“General Order”), litigants are required to provide printed courtesy copies of, inter alia, pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more, pleadings and motions that include points and authorities and Motions to Compel Further Discovery. Counsel is instructed to comply with the court’s General Order in future filings.

Merits

On October 30, 2019, Plaintiff propounded the subject discovery. (Glassman Decl., ¶3, Exh. 1.) On December 5, 2019, DS Services served its unverified responses thereto. (Id., ¶4, Exh. 2.) On January 7, 2020, Plaintiff’s counsel Glassman sent a meet and confer email to DS Services’ counsel Ashley Morris (“Morris”), requesting further responses as to Nos. 43-48 by January 10, 2020 and offering to limit the time frame to the last 20 years for same. (Id., ¶7, Exh. 3.) DS Services has failed to supplement its responses. (Id., ¶8.)

The interrogatories in issue are as follows:

Special Interrogatory No. 43:

Do you keep any data about injuries associated with YOUR[7] water dispenser?

Special Interrogatory No. 44:

If you keep data about injuries associated with YOUR water dispensers, please identify all persons who have knowledge about such data.

Special Interrogatory No. 45:

If you keep data about injuries associated with YOUR water dispensers, please identify all documents relating to such data.

Special Interrogatory No. 46:

Please identify other lawsuits brought against YOU for product liability claims associated with YOUR water dispensers.

Special Interrogatory No. 47:

Please identify other claims brought against YOU for product liability claims associated with YOUR water dispensers.

Special Interrogatory No. 48:

 

If YOU keep data about injuries associated with YOUR water dispensers, please identify all databases relating to such data.

On March 6, 2020, DS Services filed an untimely opposition[8]. DS Services represents that DS Services intends to provide supplemental discovery responses and that these are in draft form and have been submitted to the client for verification. DS Services further represents that the supplemental responses were only prepared on March 6, 2020 after regaining access to documents related to this case.

DS Services argues that (1) the requests, as phrased, are overbroad, as is Plaintiff’s proposal to limit the term to 20 years, and (2) that Plaintiff’s use of the word “your” is vague, ambiguous and overbroad because DS Services purchases water dispensers from various manufacturers, only one of which is Crystal Mountain and—of those dispensers purchased—only 1 model is at issue in this litigation. The court agrees. Plaintiff alleges that the subject water dispenser was delivered to Plaintiff’s home by Sparkletts and DS Services, was manufactured by Crystal Mountain, and was leased to Plaintiff’s family by Costco. (Complaint, ¶2.) Plaintiff further alleges that on December 29, 2018, Plaintiff sustained third degree burns “when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach.” (Id., ¶1.)

DS Services further complains that Plaintiff refuses to limit the discovery to the water dispenser (make and model) at issue in this case. The court agrees this limitation is appropriate.

DS Services represents that it has no data of injuries related to the Storm bottom-loading water cooler which is at issue in this litigation because there are no such similar claims and that it had not been sued for product liability related to the subject water dispenser. (Opposition, 2:24-27.)

The motion is granted. DS Services is ordered to provide supplemental discovery responses,

consistent with DS Services’ position as to the scope of the discovery, within 20 days of the date

of the hearing.

 

4. Motion to Compel Further Special Interrogatories Re: Costco

Legal Standard

See Motion #3.

 

Discussion

Plaintiff moves the court for an order to compel further responses by Costco to Plaintiff’s Special Interrogatories, Set No. One, Nos. 43-48.

See Motion #3.

 

The motion is granted. Costco is ordered to provide supplemental discovery responses consistent

with Costco’s position as to the scope of the discovery, within 20 days of the date of the hearing.

 

5. Motion to Compel Further Special Interrogatories Re: Crystal Mountain

Legal Standard

See Motion #3.

 

Discussion

Plaintiff moves the court for an order to compel further responses by Crystal Mountain to Plaintiff’s Special Interrogatories, Set No. One, Nos. 43-48.

 

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil (“General Order”), litigants are required to provide printed courtesy copies of, inter alia, pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more, pleadings and motions that include points and authorities and Motions to Compel Further Discovery. Counsel is instructed to comply with the court’s General Order in future filings.

Merits

On October 30, 2019, Plaintiff propounded the subject discovery. (Glassman Decl., ¶3, Exh. 1.) On December 24, 2019, Crystal Mountain served its responses thereto. (Id., ¶4, Exh. 2.) On January 13, 2020, Plaintiff’s counsel Glassman sent a meet and confer email to Crystal Mountain’s counsel Rivera, requesting further responses as to Nos. 43-48 and offering to limit the time frame to the last 20 years for same. (Id., ¶6, Exh. 3.) Crystal Mountain has failed to supplement its responses. (Id., ¶7.) Crystal Mountain’s opposition reflects that counsel additionally met and conferred on further unsuccessfully met and conferred on January 24, 26, 27 and 29, 2020 and on February 10, 2020.

The interrogatories in issue are set forth above.

Crystal Mountain argues that the interrogatories should be limited to the hot water drain tank of the Subject Water Dispenser as defined in Plaintiff’s Special Interrogatories. The court determines that this limitation is appropriate.

The motion is granted. Crystal Mountain is ordered to provide supplemental discovery responses,

consistent with Crystal Mountain’s position as to the scope of the discovery, within 20 days of

the date of the hearing.


[1] Motion #1 was filed and personally served on December 27, 2019 and set for hearing on January 27, 2020. Motion #2 was filed and overnight mail-served on January 13, 2020 and set for hearing on January 27, 2020 (i.e., reflecting insufficient CCP ; 1005(b) notice). The court’s tentative ruling for January 27, 2020 advised the parties of the court’s inclination to continue the hearing on Motions #1 and #2 to February 10, 2020. The court instructed the parties to meet and confer in the interim regarding the issues of waiver of objections and as to Nos. 43-48 and to file a Joint Status Report no later than 5 court days before the continued hearing date, advising as to any outstanding issues. The court’s January 27, 2020 minute order adopted the tentative ruling and continued the hearing to February 10, 2020; notice was waived. On February 3, 2020, a Joint Status Report was filed.

On February 10, 2020, the court continued the hearing, on its own motion, to March 13, 2020 and ordered Plaintiff’s counsel to give notice.

[2] Motions #3 and #4 were filed January 24, 2020 and originally set for hearing on May 21, 2020 and May 22, 2020, respectively. On February 7, 2020, the court granted Plaintiff’s ex parte application to advance and specially set the hearing dates for Motions #3 and #4; on that date, the hearings were rescheduled to March 13, 2020. Counsel for Plaintiff was ordered to give notice. On February 11, 2020, Plaintiff filed and mail-served a Notice of Ruling, advising therein of the rescheduled March 13, 2020 hearing date.

[3] Addressed via reply to Motion #1.

[4] Opposition was due on March 2, 2020, but was not filed (and overnight mail-served) until March 6, 2020.

[5] See footnote 4.

[6] Opposition was due on March 2, 2020, but was not filed (and mail and email-served) until March 3, 2020.

[7] The “Definitions” section of the subject discovery reads, in relevant part, as follows: “’DEFENDANT,’ ‘YOU’ and ‘YOUR’ shall mean Defendant DS SERVICES OF AMERICA, INC., and all of its employees and agents, including attorneys, or other PERSONS acting on its behalf.”

[8] DS Services represents that its counsel was unable to submit documents to the court due to a cyber incident that restricted access to documents until Thursday, March 5, 2020 (for handling counsel). (Opposition, ¶2.)


Case Number: *******9102    Hearing Date: April 30, 2020    Dept: 1

Alba v. Sparkletts, et al (*******9102)

Nature of Proceedings: Hearing on Petitioner Silvia Alba's Ex Parte Application to Approve Minor's Compromise with an Impending Deadline.

The court has read and considered Petitioner Silvia Alba’s ex parte application to approve minor’s compromises for Plaintiff Grace Alba and non-party Anthony Alba.

The ex parte applications are accompanied by the declaration of Robert Glassman who states the annuity funding deadline for both minors is May 8, 2020. (Glassman Decl. ¶ 2.) The court finds a sufficient basis to address the merits of the petition on an ex parte basis. (See Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337 n.2 (noting it appears the relevant statutes permit review of a petition for approval of compromise on an ex parte basis).)

Anthony Alba

The Petition to Approve Minor’s Compromise related to Anthony Alba is DENIED without prejudice. Anthony Alba is not a party to this action and no appearance fees have been paid in connection with relief sought by Anthony Alba. Section 4(b) of the petition incorrectly states Anthony Alba’s claims are the subject of this pending action. While Anthony Alba’s claim may arguably be resolved in this proceeding under Probate Code ; 2505(a), Anthony Alba cannot participate in this action without an appointed guardian ad litem. (CCP ; 372.) Alternatively, Anthony Alba may file a separate petition for approval to be decided by the Probate department. (LASC Local Rule 4.115(a)(1).)

Grace Alba

The Petition to Approve Minor’s Compromise related to Grace Alba is DENIED without prejudice. Given the substantial amount in attorney’s fees Mr. Glasman is seeking, it is imperative that each and every factor enumerated in CRC 7.955 be discussed in detail. Glasman’s declaration fails to do so. The declaration expressly only addresses “certain factors” enumerated in CRC 7.955. (Grossman Decl. ¶ 7.) “A petition requesting court approval and allowance of an attorney’s fee under (a) must include a declaration from the attorney that addresses the factors listed in (b) that are applicable to the matter before the court.” (CRC 7.955(c).) The Glassman declaration only expressly identifies CRC 7.955(b)(7) related to the firm’s experience. (Glassman Decl. ¶ 14.)

The declaration fails to adequately address “[t]he amount of the fee in proportion to the value of the services performed,” (CRC 7.955(b)(2)), “[t]he novelty and difficulty of the questions involved and the skill required to perform the legal services properly,” (CRC 7.955(b)(3)), “[t]he time and labor required,” (CRC 7.955(b)(8)), “[t]he relative sophistication of the attorney and the representative of the minor or person with a disability,” (CRC 7.955(b)(10)), and “[t]he likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney’s acceptance of the particular employment would preclude other employment,” (CRC 7.955(b)(11).)

“The rule permits, but does not require, the court to allow attorney's fees in an amount specified in a contingency fee agreement. The amount of attorney's fees allowed by the court must meet the reasonableness standard of [Probate Code] section 3601 no matter how [it is] determined.” (Gonzalez v. Chen (2011) 197 Cal.App.4th 881, 887. See CRC 7.955).

Plaintiff’s counsel seeks to recover attorney’s fees of $10 million, or 33 1/3 percent, from minor Grace Alba’s settlement. Counsel also stands to obtain $356,250.00 in fees from non-party Sylvia Alba and seeks approval $50,000.00 in fees from non-party minor Anthony Alba, bringing the total fee sought to $10,406,250.00.

The minor’s parents signed a retainer agreement for a 25% contingency fee on February 5, 2019 and an addendum on February 29, 2020 increasing the fee to a 33 1/3 percent contingency fee. No explanation is given for the increase and counsel “agreed to lower our fee for Anthony and Silvia's Albas' claims to 25% as a courtesy to the family and because the majority of the time and resources were spent on prosecuting Grace's claim.” (Glassman Decl. at 5 n.2.)

Plaintiff filed the complaint on March 15, 2019. Plaintiff’s counsel incorrectly states the complaint was filed on April 26, 2019. (Glassman Decl. ¶ 5.).) DS Services and Costco filed their answer and cross-complaint against Crystal Mountain on June 19, 2019. The case settled several days after the parties’ March 25, 2020 mediation. (Glassman Decl. ¶ 5.) Three attorneys at Plaintiff’s counsel’s firm worked on the case as well as “co-counsel Michael Sacchetto and his staff.” (Glassman Decl. ¶ 7.)

Counsel states “[t]he parties also engaged in numerous law and motion matters, including motions to compel and motions for trial preference, protective orders and to amend the pleadings.” (Glassman Decl. ¶ 5.) There appear to have been only five discovery motions in this case, three of which were for the same six special interrogatories to the three defendants. (See March 13, 2020 Min. Order.) Plaintiff filed the motion for trial preference and Defendants stipulated to the preference on October 23, 2019. The court’s record only includes a stipulated protective order filed on February 19, 2020 without a motion. Finally, Plaintiff filed the motion for leave to amend on March 17, 2020 and the case settled shortly thereafter.

In demonstrating the amount of work done to justify the fee sought, Plaintiff’s counsel summarily states, in relevant part:

“The case was thoroughly litigated over the next year with the parties taking numerous depositions including out-of-state and international depositions taking place in Washington, Ohio and Edmonton, Canada . . . My firm alone retained the services of 13 expert witnesses due to the complex issues involved in this case. In preparation for the mediation, our team prepared a comprehensive video discussing the key liability and damages evidence in the case involving interviews of family members and expert witnesses that was circulated to each of the parties and the mediator.” (Glassman Decl. ¶ 5.)

“Defendants heavily disputed liability throughout the litigation, contested the nature and extent of the Albas' damages and, overall, raised many factual and legal challenges throughout the entirety of the case. I and the team at Panish Shea & Boyle along with Michael Sacchetto spent a considerable amount of time and resources working on this case. From the outset, after discussing this case with my litigation team, I reviewed the facts in this case, reviewed incident photographs and medical records, analyzed the details of the injury, causation, discussed experts we would need on this case, and mapped out a discovery plan. . . . We conducted extensive discovery and investigation into the facts and circumstances of this case, including engaging in extensive liability and damages discovery.” (Glassman Decl. ¶ 8.)

Glassman states counsel indicates Plaintiff’s family “retained the legal services of Michael Sacchetto of Hanning & Sacchetto, LLP shortly after the incident” and Glassman’s firm became associated into the case on February 5, 2019. (Glassman Decl. ¶ 5.)

Counsel’s declaration is insufficient to justify the award sought, even considering the contingency agreement signed by Plaintiff’s parents.  The court will provide counsel with an opportunity to address the issues raised in the court's tentative and recalendar the matter before May 8, 2020. 

Moving party is ordered to give notice.


Case Number: *******9102    Hearing Date: July 16, 2020    Dept: J

HEARING DATE: Thursday, July 16, 2020

NOTICE: NOT OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant DS Services of America, Inc.’s MOTION FOR PROTECTIVE ORDER OR TO MODIFY THE PROTECTIVE ORDER ENTERED FEBRUARY 19, 2020 OR, ALTERNATIVELY, FOR RELIEF FROM WAIVER

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba[2]

2. Defendant DS Services of America, Inc.’s MOTION TO SEAL RECORDS LODGED CONDITIONALLY UNDER SEAL

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

Tentative Ruling

1. Defendant DS Services of America, Inc.’s Motion for Protective Order or to Modify the Protective Order Entered February 19, 2020 or, Alternatively, for Relief from Waiver is DENIED without prejudice for insufficient CCP ; 1005(b) notice; alternatively, see below.

2. Defendant DS Services of America, Inc.’s Motion to Seal Records Lodged Conditionally

Under Seal is DENIED without prejudice for insufficient CCP ; 1005(b) notice;

alternatively, see below.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc. (“Sparkletts”), DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department. On January 6, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Crystal Mountain Products Limited was named in lieu of Doe 1.

On April 21, 2020, a conditional “Notice of Settlement of Entire Case” was filed. An Order to Show Cause Re: Dismissal is set for November 6, 2020.

1. Motion for Protective Order

Legal Standard

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP ; 2025.420(a) [emphasis added].) “The 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. This protective order may include . . . one or more of the following directions: . . . (13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way . . . (15) That the deposition be sealed and thereafter opened only on order of the court.” (CCP ; 2025.420(b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

DS Services moves the court for a protective order that the deposition of DS Services’ person most qualified (“PMQ”), Laura Coombs (“Coombs”) (i.e., including the deposition transcript and all exhibits thereto), either be sealed and thereafter opened only on order of the court, or otherwise be protected against disclosure; in the alterative, DS Services seeks an order declaring the Coombs Deposition to be “CONFIDENTIAL” material protected by the February 19 Protective Order.

Insufficient Notice

At the outset, the court notes that the motion was filed and served via email on June 25, 2020, with a “TBD” hearing date. On June 26, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” (“Notice of Continuance”) was filed, in which the motions were scheduled for hearing on July 16, 2020 at 8:30 a.m.; notice was given to all counsel.

The July 16, 2020 hearing date reflects insufficient CCP ; 1005(b) notice (i.e., “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . .”). Also, where email service is authorized, the 16 court days’ notice is extended by 2 court (not calendar) days. (CCP ; 1010.6(a)(4).) The court is inclined to deny the motion without prejudice on this basis.

With that said, the court acknowledges that the motion appears to involve a dispute as between DS Services and Plaintiffs only, and that Plaintiffs have filed a substantive opposition. The court will consider the merits of the motion, contingent upon counsel for DS Services providing the court at or before the time of the hearing with a stipulation from all parties waiving any notice deficiency.

Analysis

On February 19, 2020, a “Stipulation and Protective Order” was filed in this case; by its terms, the February 19 Protective Order was to “govern the production, use and disclosure of certain confidential business information and documents produced during the course of this litigation,” including information furnished in a deposition or in other responses to discovery. (Morris Decl. ¶3, Exh. A.) The February 19 Protective Order provides, in relevant part, as follows:

“2. A party may designate as ‘CONFIDENTIAL’ those materials that contain commercially-sensitive information or private information that is regularly maintained in confidence by the designating party, and which, if released to another person, the designating party reasonably and in good faith believes would harm its commercial or personal interests . . .

7. Counsel for the Party designating documents or information as confidential pursuant to this Order (hereinafter the ‘Designating Party’) shall identify any such documents and/or information as confidential. Confidential Documents and/or information shall be designated by the Designating Party in a conspicuous place with the words ‘CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER’ or ‘HIGHLY CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER.’ If a party fails to designate documents at the time of production, the party may do so later if the Designating Party failed to make such designation through inadvertence or error . . .

8. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to material that qualifies under the appropriate standards . . .

10. Any deposition testimony of Party or non-Party witnesses, including, inter alia, current or former employees of any Party, referencing Confidential Documents may also be designated as ‘CONFIDENTIAL,’ and if designated as such, will be governed by this Order if any Party so informs the reporter during the deposition or by sending a letter to all attorneys of record and to the deposition reporter designating by page and line any portions of transcript to be so restricted within thirty (30) calendar days after receiving the final deposition transcript . . .

13. The Protective Order is intended to permit without dispute the production of Confidential Documents, but is without prejudice to the right of any Party to apply to the Court for any further order that it deems appropriate or to object on any appropriate grounds to the discovery requests . . .

15. A Party shall not be obligated to challenge the propriety of a confidentiality designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The designation or failure to designate material as CONFIDENTIAL shall not be determinative of that material’s status as information suitable for protection from disclosure. All challenges to the propriety of a confidentiality designation of a document, page, or transcript, or a portion of a document, page or transcript shall be first made in writing by a letter or email from the Challenging Party to the Designating Party, identifying the specific material challenged. Within three (3) calendar days after such a challenge has been made, the Designating Party shall substantiate the basis for such designation in writing to the other Party. The Parties shall first attempt to resolve such challenge in good faith on an informal basis. If the dispute cannot be resolved, the Designating Party must seek appropriate relief from the Court no later than five (5) calendar days from the date that one of the Parties advises the other in writing that despite good faith efforts they are unable to resolve the dispute, unless that deadline is further extended by agreement by the Parties. The Designating Party shall enjoy the protection of such designation until the issue relating to the propriety of the designation has been resolved by the Court, unless waived by the Designating Party.”

On March 3, 2020, Plaintiff deposed Coombs, whom DS Services had produced as the PMQ to testify on its behalf regarding the 17 subject matter categories set forth in Plaintiff’s “Amended Notice of Videotaped Deposition of Defendant DS Services of America, Inc.’s Person(s) Most Knowledgeable and Demand for Production of Documents.” (Id., ¶4, Exh. B.) On March 10, 2020, DS Services received an electronic copy of Coombs’ deposition transcript, which included the transcript’s 23 exhibits as well as the reporter’s transcript signed March 9, 2020. (Id., ¶7, Exh. C.)

On April 28, 2020, DS Services’ Ashley Morris (“Morris”) advised counsel in writing that DS Services deemed Coombs deposition transcript, in its entirety, and all exhibits attached and/or referenced within, “CONFIDENTIAL” pursuant to the February 19 protective order. (Id., ¶12, Exh. D.) On May 15, 2020, Plaintiffs’ counsel Robert Glassman (“Glassman”) advised Morris that DS Services’ April 28, 2020 designation was “improper, deficient and ha[d] no effect,” on the basis that (1) Morris had not informed the reporter or counsel during Coombs’ deposition that Morris intended to deem it confidential nor did Morris sent a letter to the reporter or counsel within 30 days of the final deposition transcript signed and certified by the court reporter on March 9, 2020 designating by page and line any portions of the transcript Morris was attempting to designate as confidential per ¶ 10 of the February 19 Protective Order, (2) Morris took no care “to limit any such designation to material that qualifies under the appropriate standards” per ¶ 8 of the February 19 Protective Order and that (3) Morris failed to comply with ¶ 7 of the February 19 Protective Order by showing inadvertence or error in failing to designate documents at the time of production. (Id., ¶13, Exh. E.) That same day, Morris sent an email deeming the documents to have not been labeled “CONFIDENTIAL” as “being done so inadvertently and by a staff member that was unaware of the Protective Order.” (Id., ¶ 14, Exh. F.)

The court is inclined to CONTINUE the hearing, on the basis that an inadequate meet and confer was conducted by moving party. The court instructs moving party to meet and confer in good faith regarding the specific portions of Coombs deposition sought to be restricted, by page and line number, and the specific exhibits thereto sought to be restricted. While the proposed orders submitted by DS Services in connection with the motion herein and the motion to seal below seek to seal the entirety of Coombs’ deposition transcript and all exhibits thereto, the “Notice of Lodging Records Conditionally Under Seal Pursuant to California Rules of Court, Rule 2.551” is comprised of excerpts of Coombs deposition testimony and Exhibits 10-18 and 22 thereto, as well as the unredacted motion. The issuance of a protective order as to the entirety of Coombs’ deposition transcript and accompanying exhibits is improper.

The court instructs counsel to file a joint statement, no later than 5 court days prior to the date of the continued hearing, advising the court as to the outcome of their meet and confer efforts and any outstanding issues.

2. Motion to Seal

Legal Standard

California Rules of Court (“CRC”) Rules 2.550 and 2.551 govern records sealed or proposed to be sealed by court order. “Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550(c).)

A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. (CRC Rule 2.551(b)(1).) The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Ibid.) “A request to seal a document. . . must be supported by a factual declaration or affidavit explaining the particular needs of the case.” (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416.)

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (CRC Rule 2.550(d).)

“An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (CRC Rule 2.550(e)(1).)

Discussion

DS Services moves the court for an order sealing the unredacted versions of the following documents, which were lodged conditionally under seal on June 25, 2020 in connection with Motion #1 above: (1) excerpts of the Coombs Deposition (attached as Exhibit C to the Declaration of Ashley R. Morris) and (2) the following portions of the memorandum of points and authorities: p. 8, ll. 8-23, 27-28; p. 9, ll. 1-11; p. 13, ll. 16-28 and p. 14, ll. 1-4, 9-17.

The above notice deficiency applies equally here. The court is inclined to issue the same ruling as above.


[1] The motions were filed and served via email on June 25, 2020, with a “TBD” hearing date. On June 26, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” (“Notice of Continuance”) was filed, in which the motions were scheduled for hearing on July 16, 2020 at 8:30 a.m.; notice was given to all counsel. The July 16, 2020 hearing date reflects insufficient CCP ; 1005(b) notice (i.e., “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . .”). The motion should have been filed no later than June 23, 2020. Also, where email service is authorized, the 16 court days’ notice is extended by 2 court (not calendar) days. (CCP ; 1010.6(a)(4).)

[2] Plaintiff’s opposition was filed and served via email on July 9, 2020; it was due on July 2, 2020. Plaintiff, in footnote one of its opposition, states that “Plaintiff was not given notice of the hearing date of Defendant’s Motions. When Defendant served its papers on Plaintiff’s counsel by email on June 25, 2020, the Motions indicated that the hearing date was ‘to be decided by the Court.’ After that, Plaintiff was not notified by Defendant that the hearing was then scheduled by the Court. Plaintiff is filing this opposition as soon as she learned (on her own) that the hearing has been scheduled for July 16.” Again, however, the Certificate of Mailing accompanying the court’s June 26, 2020 Notice of Continuance reflects that notice was, in fact, provided to Plaintiff’s counsel. Nevertheless, in the event the motion is considered on the merits, the court has considered the opposition as well.


Case Number: *******9102    Hearing Date: October 15, 2020    Dept: J

HEARING DATE: Thursday, October 15, 2020

NOTICE: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant DS Services of America, Inc.’s MOTION FOR PROTECTIVE ORDER OR TO MODIFY THE PROTECTIVE ORDER ENTERED FEBRUARY 19, 2020 OR, ALTERNATIVELY, FOR RELIEF FROM WAIVER

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

2. Defendant DS Services of America, Inc.’s MOTION TO SEAL RECORDS LODGED CONDITIONALLY UNDER SEAL

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

Tentative Ruling

See below.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc. (“Sparkletts”), DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department. On January 6, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Crystal Mountain Products Limited was named in lieu of Doe 1.

On April 21, 2020, a conditional “Notice of Settlement of Entire Case” was filed. An Order to Show Cause Re: Dismissal is set for November 6, 2020.

1. Motion for Protective Order

Legal Standard

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP ; 2025.420(a) [emphasis added].) “The 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. This protective order may include . . . one or more of the following directions: . . . (13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way . . . (15) That the deposition be sealed and thereafter opened only on order of the court.” (CCP ; 2025.420(b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

DS Services moves the court for a protective order that the deposition of DS Services’ person most qualified (“PMQ”), Laura Coombs (“Coombs”) (i.e., including the deposition transcript and all exhibits thereto), either be sealed and thereafter opened only on order of the court, or otherwise be protected against disclosure; in the alterative, DS Services seeks an order declaring the Coombs Deposition to be “CONFIDENTIAL” material protected by the February 19 Protective Order.

Analysis

On February 19, 2020, a “Stipulation and Protective Order” was filed in this case; by its terms, the February 19 Protective Order was to “govern the production, use and disclosure of certain confidential business information and documents produced during the course of this litigation,” including information furnished in a deposition or in other responses to discovery. (Morris Decl. ¶3, Exh. A.) The February 19 Protective Order provides, in relevant part, as follows:

“2. A party may designate as ‘CONFIDENTIAL’ those materials that contain commercially-sensitive information or private information that is regularly maintained in confidence by the designating party, and which, if released to another person, the designating party reasonably and in good faith believes would harm its commercial or personal interests . . .

7. Counsel for the Party designating documents or information as confidential pursuant to this Order (hereinafter the ‘Designating Party’) shall identify any such documents and/or information as confidential. Confidential Documents and/or information shall be designated by the Designating Party in a conspicuous place with the words ‘CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER’ or ‘HIGHLY CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER.’ If a party fails to designate documents at the time of production, the party may do so later if the Designating Party failed to make such designation through inadvertence or error . . .

8. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to material that qualifies under the appropriate standards . . .

10. Any deposition testimony of Party or non-Party witnesses, including, inter alia, current or former employees of any Party, referencing Confidential Documents may also be designated as ‘CONFIDENTIAL,’ and if designated as such, will be governed by this Order if any Party so informs the reporter during the deposition or by sending a letter to all attorneys of record and to the deposition reporter designating by page and line any portions of transcript to be so restricted within thirty (30) calendar days after receiving the final deposition transcript . . .

13. The Protective Order is intended to permit without dispute the production of Confidential Documents, but is without prejudice to the right of any Party to apply to the Court for any further order that it deems appropriate or to object on any appropriate grounds to the discovery requests . . .

14. . . . The Parties reserve all rights to apply to the Court for an order modifying this Order or seeking further protection or relief from the protection herein . . .

15. A Party shall not be obligated to challenge the propriety of a confidentiality designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The designation or failure to designate material as CONFIDENTIAL shall not be determinative of that material’s status as information suitable for protection from disclosure. All challenges to the propriety of a confidentiality designation of a document, page, or transcript, or a portion of a document, page or transcript shall be first made in writing by a letter or email from the Challenging Party to the Designating Party, identifying the specific material challenged. Within three (3) calendar days after such a challenge has been made, the Designating Party shall substantiate the basis for such designation in writing to the other Party. The Parties shall first attempt to resolve such challenge in good faith on an informal basis. If the dispute cannot be resolved, the Designating Party must seek appropriate relief from the Court no later than five (5) calendar days from the date that one of the Parties advises the other in writing that despite good faith efforts they are unable to resolve the dispute, unless that deadline is further extended by agreement by the Parties. The Designating Party shall enjoy the protection of such designation until the issue relating to the propriety of the designation has been resolved by the Court, unless waived by the Designating Party.”

On March 3, 2020, Plaintiff deposed Coombs, whom DS Services had produced as the PMQ to testify on its behalf regarding the 17 subject matter categories set forth in Plaintiff’s “Amended Notice of Videotaped Deposition of Defendant DS Services of America, Inc.’s Person(s) Most Knowledgeable and Demand for Production of Documents.” (Id., ¶4, Exh. B.) On March 10, 2020, DS Services received an electronic copy of Coombs’ deposition transcript, which included the transcript’s 23 exhibits as well as the reporter’s transcript signed March 9, 2020. (Id., ¶7, Exh. C.)

On April 28, 2020, DS Services’ Ashley Morris (“Morris”) advised counsel in writing that DS Services deemed Coombs deposition transcript, in its entirety, and all exhibits attached and/or referenced within, “CONFIDENTIAL” pursuant to the February 19 protective order. (Id., ¶12, Exh. D.) On May 15, 2020, Plaintiffs’ counsel Robert Glassman (“Glassman”) advised Morris that DS Services’ April 28, 2020 designation was “improper, deficient and ha[d] no effect,” on the basis that (1) Morris had not informed the reporter or counsel during Coombs’ deposition that Morris intended to deem it confidential nor did Morris sent a letter to the reporter or counsel within 30 days of the final deposition transcript signed and certified by the court reporter on March 9, 2020 designating by page and line any portions of the transcript Morris was attempting to designate as confidential per ¶ 10 of the February 19 Protective Order, (2) Morris took no care “to limit any such designation to material that qualifies under the appropriate standards” per ¶ 8 of the February 19 Protective Order and that (3) Morris failed to comply with ¶ 7 of the February 19 Protective Order by showing inadvertence or error in failing to designate documents at the time of production. (Id., ¶13, Exh. E.) That same day, Morris sent an email deeming the documents to have not been labeled “CONFIDENTIAL” as “being done so inadvertently and by a staff member that was unaware of the Protective Order.” (Id., ¶ 14, Exh. F.)

The matter was originally heard on July 16, 2020; on that date, as reflected in the DS Services’ July 20, 2020 “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” the court ordered the parties to meet and confer regarding specific page and line numbers DS Services requests be deemed confidential and, in the event the parties could not agree, for DS Services to file a declaration with a new Proposed Order detailing the specific page and line numbers DS Services requests the court to rule on with sufficient time for Plaintiff to respond.

On September 11, 2020, Morris filed a supplemental declaration, advising therein that she prepared a list of page and line numbers, including exhibits to the Coombs Declaration, that DS Services is requesting be kept confidential and provided same to opposing counsel, but that counsel were unable to agree on everything. (Supp. Morris Decl., ¶4, Exh. A.)

On October 1, 2020, Plaintiff filed its “Supplemental Omnibus Opposition.” Plaintiff contends that Exhibits 8 (i.e., the product’s service manual), 16 (i.e., a diagram of a component part of the product), 17 (i.e., a diagram of another component part of the product), 19 (i.e., the product’s owner’s manual) and 20 (i.e., a diagram showing the labels on the product) are materials and information found on DS Services’ own website, as well as on Crystal Mountain’s website. Plaintiff also complains that DS Services proposes restricting and sealing roughly 155 pages of Coombs’s 254 page deposition, and that “the large majority of the portions DSS has designated are not confidential.” (Supp. Opp., 2:12-16.)

On October 7, 2020, DS Services filed its “Supplemental Omnibus Reply,” advising therein that it was withdrawing its request for a protective order as to Exhibits 8 and 19.

Based on the above, then, counsel have stipulated that the following is confidential: 14:13-24; 16:5-8; 37:19-23; 154:5-155:19; 235:19-237:21; and Exhibits 10, 11, 15, 18 and 22. DS Services has withdrawn its request as to Exhibits 8 and 19.

The excerpts and exhibits remaining in dispute are as follows: 34:1-35:19; 37:9-18; 37:24-39:6; 41:16-44:4; 45:21-71:3; 83:2-91:25; 93:8-135:10; 138:8-143:2; 143:12-145:24; 153:7-20; 167:2-187:12; 193:6-205:19; 216:23-225:24; 226:24-227:15; 243:9-257:6 and Exhibits 16, 17 and 20.

The court is inclined to continue the matter to __________________________. The court does not appear to be in receipt of the following portions of Coombs’ deposition transcript: 34:1-35:19, 37:9-18, 37:24-39:6, 41:16-44:4, 45:21-71:3, 83:2-84:25, 87:1-91:25; 93:8-93:25; 98:1-25; 103:1-135:10, 138:143:2, 143:12-145:24, 153:7-20; 171:1-183:25, 186:1-187:12, 193:6-194:25, 196:1-205:19, 216:23-225:24, 226:24-227:15, 248:1-253:25, 256:1-257:6 and Exhibit 20; accordingly, the court cannot issue a ruling regarding same. Counsel for DS Services is instructed to lodge the above excerpts forthwith.

2. Motion to Seal

Legal Standard

California Rules of Court (“CRC”) Rules 2.550 and 2.551 govern records sealed or proposed to be sealed by court order. “Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550(c).)

A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. (CRC Rule 2.551(b)(1).) The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Ibid.) “A request to seal a document. . . must be supported by a factual declaration or affidavit explaining the particular needs of the case.” (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416.)

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (CRC Rule 2.550(d).)

“An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (CRC Rule 2.550(e)(1).)

Discussion

DS Services moves the court for an order sealing the unredacted versions of the following documents, which were lodged conditionally under seal on June 25, 2020 in connection with Motion #1 above: (1) excerpts of the Coombs Deposition (attached as Exhibit C to the Declaration of Ashley R. Morris) and (2) the following portions of the memorandum of points and authorities: p. 8, ll. 8-23, 27-28; p. 9, ll. 1-11; p. 13, ll. 16-28 and p. 14, ll. 1-4, 9-17.

The court is inclined to continue the hearing to the date above.


[1] The motions were filed and served via email on June 25, 2020, with a “TBD” hearing date. On June 26, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” (“Notice of Continuance”) was filed, in which the motions were scheduled for hearing on July 16, 2020 at 8:30 a.m.; notice was given to all counsel. On July 16, 2020, the court continued the hearing on the motions to October 15, 2020 and ordered the parties to meet and confer to resolve issues; moving party’s counsel was ordered to give notice. On July 20, 2020, moving party filed (and served via email) its “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” advising therein of the October 15, 2020, 10:00 a.m. hearing date/time.


Case Number: *******9102    Hearing Date: November 06, 2020    Dept: J

HEARING DATE: Friday, November 6, 2020

NOTICE: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant DS Services of America, Inc.’s MOTION FOR PROTECTIVE ORDER OR TO MODIFY THE PROTECTIVE ORDER ENTERED FEBRUARY 19, 2020 OR, ALTERNATIVELY, FOR RELIEF FROM WAIVER

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

2. Defendant DS Services of America, Inc.’s MOTION TO SEAL RECORDS LODGED CONDITIONALLY UNDER SEAL

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

Tentative Ruling

See below.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc. (“Sparkletts”), DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department. On January 6, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Crystal Mountain Products Limited was named in lieu of Doe 1.

On April 21, 2020, a conditional “Notice of Settlement of Entire Case” was filed. An Order to Show Cause Re: Dismissal is set for November 6, 2020.

1. Motion for Protective Order

Legal Standard

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP ; 2025.420(a) [emphasis added].) “The 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. This protective order may include . . . one or more of the following directions: . . . (13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way . . . (15) That the deposition be sealed and thereafter opened only on order of the court.” (CCP ; 2025.420(b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

DS Services moves the court for a protective order that the deposition of DS Services’ person most qualified (“PMQ”), Laura Coombs (“Coombs”) (i.e., including the deposition transcript and all exhibits thereto), either be sealed and thereafter opened only on order of the court, or otherwise be protected against disclosure; in the alterative, DS Services seeks an order declaring the Coombs Deposition to be “CONFIDENTIAL” material protected by the February 19 Protective Order.

Analysis

On February 19, 2020, a “Stipulation and Protective Order” was filed in this case; by its terms, the February 19 Protective Order was to “govern the production, use and disclosure of certain confidential business information and documents produced during the course of this litigation,” including information furnished in a deposition or in other responses to discovery. (Morris Decl. ¶3, Exh. A.) The February 19 Protective Order provides, in relevant part, as follows:

“2. A party may designate as ‘CONFIDENTIAL’ those materials that contain commercially-sensitive information or private information that is regularly maintained in confidence by the designating party, and which, if released to another person, the designating party reasonably and in good faith believes would harm its commercial or personal interests . . .

7. Counsel for the Party designating documents or information as confidential pursuant to this Order (hereinafter the ‘Designating Party’) shall identify any such documents and/or information as confidential. Confidential Documents and/or information shall be designated by the Designating Party in a conspicuous place with the words ‘CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER’ or ‘HIGHLY CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER.’ If a party fails to designate documents at the time of production, the party may do so later if the Designating Party failed to make such designation through inadvertence or error . . .

8. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to material that qualifies under the appropriate standards . . .

10. Any deposition testimony of Party or non-Party witnesses, including, inter alia, current or former employees of any Party, referencing Confidential Documents may also be designated as ‘CONFIDENTIAL,’ and if designated as such, will be governed by this Order if any Party so informs the reporter during the deposition or by sending a letter to all attorneys of record and to the deposition reporter designating by page and line any portions of transcript to be so restricted within thirty (30) calendar days after receiving the final deposition transcript . . .

13. The Protective Order is intended to permit without dispute the production of Confidential Documents, but is without prejudice to the right of any Party to apply to the Court for any further order that it deems appropriate or to object on any appropriate grounds to the discovery requests . . .

14. . . . The Parties reserve all rights to apply to the Court for an order modifying this Order or seeking further protection or relief from the protection herein . . .

15. A Party shall not be obligated to challenge the propriety of a confidentiality designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The designation or failure to designate material as CONFIDENTIAL shall not be determinative of that material’s status as information suitable for protection from disclosure. All challenges to the propriety of a confidentiality designation of a document, page, or transcript, or a portion of a document, page or transcript shall be first made in writing by a letter or email from the Challenging Party to the Designating Party, identifying the specific material challenged. Within three (3) calendar days after such a challenge has been made, the Designating Party shall substantiate the basis for such designation in writing to the other Party. The Parties shall first attempt to resolve such challenge in good faith on an informal basis. If the dispute cannot be resolved, the Designating Party must seek appropriate relief from the Court no later than five (5) calendar days from the date that one of the Parties advises the other in writing that despite good faith efforts they are unable to resolve the dispute, unless that deadline is further extended by agreement by the Parties. The Designating Party shall enjoy the protection of such designation until the issue relating to the propriety of the designation has been resolved by the Court, unless waived by the Designating Party.”

On March 3, 2020, Plaintiff deposed Coombs, whom DS Services had produced as the PMQ to testify on its behalf regarding the 17 subject matter categories set forth in Plaintiff’s “Amended Notice of Videotaped Deposition of Defendant DS Services of America, Inc.’s Person(s) Most Knowledgeable and Demand for Production of Documents.” (Id., ¶4, Exh. B.) On March 10, 2020, DS Services received an electronic copy of Coombs’ deposition transcript, which included the transcript’s 23 exhibits as well as the reporter’s transcript signed March 9, 2020. (Id., ¶7, Exh. C.)

On April 28, 2020, DS Services’ Ashley Morris (“Morris”) advised counsel in writing that DS Services deemed Coombs deposition transcript, in its entirety, and all exhibits attached and/or referenced within, “CONFIDENTIAL” pursuant to the February 19 protective order. (Id., ¶12, Exh. D.) On May 15, 2020, Plaintiffs’ counsel Robert Glassman (“Glassman”) advised Morris that DS Services’ April 28, 2020 designation was “improper, deficient and ha[d] no effect,” on the basis that (1) Morris had not informed the reporter or counsel during Coombs’ deposition that Morris intended to deem it confidential nor did Morris sent a letter to the reporter or counsel within 30 days of the final deposition transcript signed and certified by the court reporter on March 9, 2020 designating by page and line any portions of the transcript Morris was attempting to designate as confidential per ¶ 10 of the February 19 Protective Order, (2) Morris took no care “to limit any such designation to material that qualifies under the appropriate standards” per ¶ 8 of the February 19 Protective Order and that (3) Morris failed to comply with ¶ 7 of the February 19 Protective Order by showing inadvertence or error in failing to designate documents at the time of production. (Id., ¶13, Exh. E.) That same day, Morris sent an email deeming the documents to have not been labeled “CONFIDENTIAL” as “being done so inadvertently and by a staff member that was unaware of the Protective Order.” (Id., ¶ 14, Exh. F.)

The matter was originally heard on July 16, 2020; on that date, as reflected in the DS Services’ July 20, 2020 “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” the court ordered the parties to meet and confer regarding specific page and line numbers DS Services requests be deemed confidential and, in the event the parties could not agree, for DS Services to file a declaration with a new Proposed Order detailing the specific page and line numbers DS Services requests the court to rule on with sufficient time for Plaintiff to respond.

On September 11, 2020, Morris filed a supplemental declaration, advising therein that she prepared a list of page and line numbers, including exhibits to the Coombs Declaration, that DS Services is requesting be kept confidential and provided same to opposing counsel, but that counsel were unable to agree on everything. (Supp. Morris Decl., ¶4, Exh. A.)

On October 1, 2020, Plaintiff filed its “Supplemental Omnibus Opposition.” Plaintiff contends that Exhibits 8 (i.e., the product’s service manual), 16 (i.e., a diagram of a component part of the product), 17 (i.e., a diagram of another component part of the product), 19 (i.e., the product’s owner’s manual) and 20 (i.e., a diagram showing the labels on the product) are materials and information found on DS Services’ own website, as well as on Crystal Mountain’s website. Plaintiff also complains that DS Services proposes restricting and sealing roughly 155 pages of Coombs’s 254 page deposition, and that “the large majority of the portions DSS has designated are not confidential.” (Supp. Opp., 2:12-16.)

On October 7, 2020, DS Services filed its “Supplemental Omnibus Reply,” advising therein that it was withdrawing its request for a protective order as to Exhibits 8 and 19.

Based on the above, then, counsel have stipulated that the following is confidential: 14:13-24; 16:5-8; 37:19-23; 154:5-155:19; 235:19-237:21; and Exhibits 10, 11, 15, 18 and 22. DS Services has withdrawn its request as to Exhibits 8 and 19.

The excerpts and exhibits remaining in dispute are as follows: 34:1-35:19; 37:9-18; 37:24-39:6; 41:16-44:4; 45:21-71:3; 83:2-91:25; 93:8-135:10; 138:8-143:2; 143:12-145:24; 153:7-20; 167:2-187:12; 193:6-205:19; 216:23-225:24; 226:24-227:15; 243:9-257:6 and Exhibits 16, 17 and 20.

On October 15, 2020 the court, on its own motion, continued the hearing to November 6, 2020. The court is inclined to continue the matter again, to December 4, 2020 at 10:00 a.m. The court does not appear to be in receipt of the following portions of Coombs’ deposition transcript: 34:1-35:19, 37:9-18, 37:24-39:6, 41:16-44:4, 45:21-71:3, 83:2-84:25, 87:1-91:25; 93:8-93:25; 98:1-25; 103:1-135:10, 138:143:2, 143:12-145:24, 153:7-20; 171:1-183:25, 186:1-187:12, 193:6-194:25, 196:1-205:19, 216:23-225:24, 226:24-227:15, 248:1-253:25, 256:1-257:6 and Exhibit 20 (as of November 3, 2020, 4:18 p.m.); accordingly, the court cannot issue a ruling regarding same. Counsel for DS Services is instructed to lodge the above excerpts within 5 court days from the date of this hearing.

2. Motion to Seal

Legal Standard

California Rules of Court (“CRC”) Rules 2.550 and 2.551 govern records sealed or proposed to be sealed by court order. “Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550(c).)

A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. (CRC Rule 2.551(b)(1).) The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Ibid.) “A request to seal a document. . . must be supported by a factual declaration or affidavit explaining the particular needs of the case.” (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416.)

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (CRC Rule 2.550(d).)

“An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (CRC Rule 2.550(e)(1).)

Discussion

DS Services moves the court for an order sealing the unredacted versions of the following documents, which were lodged conditionally under seal on June 25, 2020 in connection with Motion #1 above: (1) excerpts of the Coombs Deposition (attached as Exhibit C to the Declaration of Ashley R. Morris) and (2) the following portions of the memorandum of points and authorities: p. 8, ll. 8-23, 27-28; p. 9, ll. 1-11; p. 13, ll. 16-28 and p. 14, ll. 1-4, 9-17.

The court is inclined to continue the hearing to the date above.


[1] The motions were filed and served via email on June 25, 2020, with a “TBD” hearing date. On June 26, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” (“Notice of Continuance”) was filed, in which the motions were scheduled for hearing on July 16, 2020 at 8:30 a.m.; notice was given to all counsel. On July 16, 2020, the court continued the hearing on the motions to October 15, 2020 and ordered the parties to meet and confer to resolve issues; moving party’s counsel was ordered to give notice. On July 20, 2020, moving party filed (and served via email) its “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” advising therein of the October 15, 2020, 10:00 a.m. hearing date/time. On October 15, 2020, the court, on its own motion, continued the hearing to November 6, 2020 at 10:00 a.m.; notice was given to all counsel.


Case Number: *******9102    Hearing Date: December 04, 2020    Dept: J

HEARING DATE: Friday, December 4, 2020

NOTICE: OK[1]

RE: Alba v. Sparkletts, Inc., et al. (*******9102)

______________________________________________________________________________

1. Defendant DS Services of America, Inc.’s MOTION FOR PROTECTIVE ORDER OR TO MODIFY THE PROTECTIVE ORDER ENTERED FEBRUARY 19, 2020 OR, ALTERNATIVELY, FOR RELIEF FROM WAIVER

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

2. Defendant DS Services of America, Inc.’s MOTION TO SEAL RECORDS LODGED CONDITIONALLY UNDER SEAL

Responding Party: Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem,

Sylvia Alba

Tentative Ruling

1. Defendant DS Services of America, Inc.’s Motion for Protective Order is DENIED as MOOT in part (i.e., as to 14:13-24; 16:5-8; 37:19-23; 154:5-155:19; 235:19-237:21; and Exhibits 8, 10, 11, 15, 18, 19 and 22) and otherwise DENIED.

 

2. Defendant DS Services of America, Inc.’s Motion to Seal Records Lodged Conditionally

Under Seal is DENIED.

 

Background

Plaintiff Grace Alba, a minor, by and through her Guardian ad Litem, Sylvia Alba (“Plaintiff”) alleges that on December 29, 2018, Plaintiff sustained third degree burns to large parts of her body when a defective and dangerously designed water dispenser shot scalding water at her face, chest and stomach. On March 15, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Sparkletts, Inc. (“Sparkletts”), DS Services of America, Inc. (“DS Services”), Costco Wholesale Corporation (erroneously sued and served as Costco, Inc.) (“Costco”), Crystal Mountain Products, Inc. (erroneously sued as Crystal Mountain) and Does 1-50 for:

  1. Negligence

  2. Negligence—Products Liability

  3. Strict Products Liability

On June 19, 2019, DS Services and Costco filed a cross-complaint, asserting causes of action against Cross-Defendants Crystal Mountain International Limited and Roes 1-10 for:

  1. Implied Indemnity

  2. Contribution

  3. Express Indemnity

  4. Breach of Contract

  5. Declaratory Relief

On October 3, 2019, this action was transferred from the personal injury hub (Department 5) to this department. On January 6, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Crystal Mountain Products Limited was named in lieu of Doe 1.

On April 21, 2020, a conditional “Notice of Settlement of Entire Case” was filed. An Order to Show Cause Re: Dismissal is set for November 6, 2020.

1. Motion for Protective Order

Legal Standard

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., ; 2025.420, subd. (a).) “The 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. This protective order may include . . . one or more of the following directions: . . . (13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way . . . (15) That the deposition be sealed and thereafter opened only on order of the court.” (Code Civ. Proc., ; 2025.420, subd. (b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

DS Services moves the court for a protective order that the deposition of DS Services’ person most qualified (“PMQ”), Laura Coombs (“Coombs”) (i.e., including the deposition transcript and all exhibits thereto), either be sealed and thereafter opened only on order of the court, or otherwise be protected against disclosure; in the alternative, DS Services seeks an order declaring the Coombs Deposition to be “CONFIDENTIAL” material protected by the February 19 Protective Order.

Analysis

On February 19, 2020, a “Stipulation and Protective Order” was filed in this case; by its terms, the February 19 Protective Order was to “govern the production, use and disclosure of certain confidential business information and documents produced during the course of this litigation,” including information furnished in a deposition or in other responses to discovery. (Morris Decl. ¶3, Exh. A.) The February 19 Protective Order provides, in relevant part, as follows:

“2. A party may designate as ‘CONFIDENTIAL’ those materials that contain commercially-sensitive information or private information that is regularly maintained in confidence by the designating party, and which, if released to another person, the designating party reasonably and in good faith believes would harm its commercial or personal interests . . .

7. Counsel for the Party designating documents or information as confidential pursuant to this Order (hereinafter the ‘Designating Party’) shall identify any such documents and/or information as confidential. Confidential Documents and/or information shall be designated by the Designating Party in a conspicuous place with the words ‘CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER’ or ‘HIGHLY CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER.’ If a party fails to designate documents at the time of production, the party may do so later if the Designating Party failed to make such designation through inadvertence or error . . .

8. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to material that qualifies under the appropriate standards . . .

10. Any deposition testimony of Party or non-Party witnesses, including, inter alia, current or former employees of any Party, referencing Confidential Documents may also be designated as ‘CONFIDENTIAL,’ and if designated as such, will be governed by this Order if any Party so informs the reporter during the deposition or by sending a letter to all attorneys of record and to the deposition reporter designating by page and line any portions of transcript to be so restricted within thirty (30) calendar days after receiving the final deposition transcript . . .

13. The Protective Order is intended to permit without dispute the production of Confidential Documents, but is without prejudice to the right of any Party to apply to the Court for any further order that it deems appropriate or to object on any appropriate grounds to the discovery

requests . . .

14. . . . The Parties reserve all rights to apply to the Court for an order modifying this Order or seeking further protection or relief from the protection herein . . .

15. A Party shall not be obligated to challenge the propriety of a confidentiality designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The designation or failure to designate material as CONFIDENTIAL shall not be determinative of that material’s status as information suitable for protection from disclosure. All challenges to the propriety of a confidentiality designation of a document, page, or transcript, or a portion of a document, page or transcript shall be first made in writing by a letter or email from the Challenging Party to the Designating Party, identifying the specific material challenged. Within three (3) calendar days after such a challenge has been made, the Designating Party shall substantiate the basis for such designation in writing to the other Party. The Parties shall first attempt to resolve such challenge in good faith on an informal basis. If the dispute cannot be resolved, the Designating Party must seek appropriate relief from the Court no later than five (5) calendar days from the date that one of the Parties advises the other in writing that despite good faith efforts they are unable to resolve the dispute, unless that deadline is further extended by agreement by the Parties. The Designating Party shall enjoy the protection of such designation until the issue relating to the propriety of the designation has been resolved by the Court, unless waived by the Designating Party.”

On March 3, 2020, Plaintiff deposed Coombs, whom DS Services had produced as the PMQ to testify on its behalf regarding the 17 subject matter categories set forth in Plaintiff’s “Amended Notice of Videotaped Deposition of Defendant DS Services of America, Inc.’s Person(s) Most Knowledgeable and Demand for Production of Documents.” (Id., ¶4, Exh. B.) On March 10, 2020, DS Services received an electronic copy of Coombs’ deposition transcript, which included the transcript’s 23 exhibits as well as the reporter’s transcript signed March 9, 2020. (Id., ¶7, Exh. C.)

On April 28, 2020, DS Services’ Ashley Morris (“Morris”) advised counsel in writing that DS Services deemed Coombs deposition transcript, in its entirety, and all exhibits attached and/or referenced within, “CONFIDENTIAL” pursuant to the February 19 protective order. (Id., ¶12, Exh. D.) On May 15, 2020, Plaintiffs’ counsel Robert Glassman (“Glassman”) advised Morris that DS Services’ April 28, 2020 designation was “improper, deficient and ha[d] no effect,” on the basis that (1) Morris had not informed the reporter or counsel during Coombs’ deposition that Morris intended to deem it confidential nor did Morris sent a letter to the reporter or counsel within 30 days of the final deposition transcript signed and certified by the court reporter on March 9, 2020 designating by page and line any portions of the transcript Morris was attempting to designate as confidential per ¶ 10 of the February 19 Protective Order, (2) Morris took no care “to limit any such designation to material that qualifies under the appropriate standards” per ¶ 8 of the February 19 Protective Order and that (3) Morris failed to comply with ¶ 7 of the February 19 Protective Order by showing inadvertence or error in failing to designate documents at the time of production. (Id., ¶13, Exh. E.) That same day, Morris sent an email deeming the documents to have not been labeled “CONFIDENTIAL” as “being done so inadvertently and by a staff member that was unaware of the Protective Order.” (Id., ¶ 14, Exh. F.)

Morris declares that her firm’s “omission was the produce of a misunderstanding regarding the February 19 Protective Order’s designation requirements, which misunderstanding arose between [her] and [her] office staff as a consequence of the COVID-19 pandemic.” (Morris Decl., ¶10.)

The matter was originally heard on July 16, 2020; on that date, as reflected in the DS Services’ July 20, 2020 “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” the court ordered the parties to meet and confer regarding specific page and line numbers DS Services requests be deemed confidential and, in the event the parties could not agree, for DS Services to file a declaration with a new Proposed Order detailing the specific page and line numbers DS Services requests the court to rule on with sufficient time for Plaintiff to respond.

On September 11, 2020, Morris filed a supplemental declaration, advising therein that she prepared a list of page and line numbers, including exhibits to the Coombs Declaration, that DS Services is requesting be kept confidential and provided same to opposing counsel, but that counsel were unable to agree on everything. (Supp. Morris Decl., ¶4, Exh. A.)

On October 1, 2020, Plaintiff filed its “Supplemental Omnibus Opposition.” Plaintiff contends that Exhibits 8 (i.e., the product’s service manual), 16 (i.e., a diagram of a component part of the product), 17 (i.e., a diagram of another component part of the product), 19 (i.e., the product’s owner’s manual) and 20 (i.e., a diagram showing the labels on the product) are materials and information found on DS Services’ own website, as well as on Crystal Mountain’s website. Plaintiff also complains that DS Services proposes restricting and sealing roughly 155 pages of Coombs’s 254 page deposition, and that “the large majority of the portions DSS has designated are not confidential.” (Supp. Opp., 2:12-16.)

On October 7, 2020, DS Services filed its “Supplemental Omnibus Reply,” advising therein that it was withdrawing its request for a protective order as to Exhibits 8 and 19.

Based on the above, then, counsel have stipulated that the following is confidential: 14:13-24; 16:5-8; 37:19-23; 154:5-155:19; 235:19-237:21; and Exhibits 10, 11, 15, 18 and 22. DS Services has withdrawn its request as to Exhibits 8 and 19.

The excerpts and exhibits remaining in dispute are as follows: 34:1-35:19; 37:9-18; 37:24-39:6; 41:16-44:4; 45:21-71:3; 83:2-91:25; 93:8-135:10; 138:8-143:2; 143:12-145:24; 153:7-20; 167:2-187:12; 193:6-205:19; 216:23-225:24; 226:24-227:15; 243:9-257:6 and Exhibits 16, 17 and 20.

On October 15, 2020 the court, on its own motion, continued the hearing to November 6, 2020. On November 6, 2020, the court continued the matter again, to December 4, 2020, on the basis that the court was not in receipt of the following portions of Coombs’ deposition transcript: 34:1-35:19, 37:9-18, 37:24-39:6, 41:16-44:4, 45:21-71:3, 83:2-84:25, 87:1-91:25; 93:8-93:25; 98:1-25; 103:1-135:10, 138:143:2, 143:12-145:24, 153:7-20; 171:1-183:25, 186:1-187:12, 193:6-194:25, 196:1-205:19, 216:23-225:24, 226:24-227:15, 248:1-253:25, 256:1-257:6 and Exhibit 20. DS Services has since lodged the aforesaid excerpts.

DS Services’ request for a protective order that Coombs’ deposition be sealed and thereafter opened only on order of the court, or otherwise be protected against disclosure is denied. DS Services has not met its burden of showing good cause for the relief sought. The court has reviewed the above excerpts and determines that the following portions do not constitute trade secret and/or confidential information: 34:1-35:19; 37:9-18; 37:24-39:6; 41:16-44:4; 45:21-71:3; 83:2-91:25; 93:8-135:10; 138:8-143:2; 143:12-145:24; 153:7-20; 167:2-187:12; 193:6-205:19; 216:23-225:24; 226:24-227:15; 243:9-257:6 and Exhibits 16, 17 and 20.

Moreover, DS Services’ alternative request for an order declaring the Coombs Deposition to be “CONFIDENTIAL” material protected by the February 19 Protective Order is denied. The parties’ briefing reflects that DS Services did not timely comply with ¶10 therein. Also, no care “to limit any such designation to material that qualifies under the appropriate standards” was taken here, as per ¶8. DS Services’ counsel has not made a sufficient showing of inadvertence or error, as per ¶7.

2. Motion to Seal

Legal Standard

California Rules of Court (“CRC”) Rules 2.550 and 2.551 govern records sealed or proposed to be sealed by court order. “Unless confidentiality is required by law, court records are presumed to be open.” (CRC Rule 2.550, subd. (c).)

A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. (CRC Rule 2.551, subd. (b)(1).) The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Ibid.) “A request to seal a document. . . must be supported by a factual declaration or affidavit explaining the particular needs of the case.” (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416.)

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (CRC Rule 2.550, subd. (d).)

“An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” (CRC Rule 2.550, subd. (e)(1).)

Discussion

DS Services moves the court for an order sealing the unredacted versions of the following documents, which were lodged conditionally under seal on June 25, 2020 in connection with Motion #1 above: (1) excerpts of the Coombs Deposition (attached as Exhibit C to the Declaration of Ashley R. Morris) and (2) the following portions of the memorandum of points and authorities: p. 8, ll. 8-23, 27-28; p. 9, ll. 1-11; p. 13, ll. 16-28 and p. 14, ll. 1-4, 9-17.

DS Services’ motion is denied. Morris represents only that “[t]he Coombs Deposition is replete with commercially-sensitive and/or private information that DS Services regularly maintains in confidence, and which, if publicly disclosed or disseminated, would harm DS Services’ ability to compete in the marketplace, as well as its business relationship with Crystal Mountain.” (Morris Decl., ¶4.) Morris adds that “[t]here is a substantial probability that the overriding interest in keeping confidential said commercially-sensitive and/or private information will be prejudiced if the Records are not sealed, in that if the Records and, by extension, the commercially-sensitive, private, and/or proprietary information they contain is released to the public, then DS Services’ ability to compete in the marketplace, as well as its business relationship with Crystal Mountain, will be harmed.” (Id., ¶5.) This generic, conclusory language provides an insufficient basis for the court to make the findings required by CRC Rule 2.550, subdivision (d).


[1] The motions were filed and served via email on June 25, 2020, with a “TBD” hearing date. On June 26, 2020, a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” (“Notice of Continuance”) was filed, in which the motions were scheduled for hearing on July 16, 2020; notice was given to all counsel. On July 16, 2020, the court continued the hearing on the motions to October 15, 2020 and ordered the parties to meet and confer to resolve issues; moving party’s counsel was ordered to give notice. On July 20, 2020, moving party filed (and served via email) its “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” advising therein of the October 15, 2020 hearing date. On October 15, 2020, the court, on its own motion, continued the hearing to November 6, 2020; notice was given to all counsel. On November 6, 2020, the court, on its own motion, continued the hearing to December 4, 2020; that day, moving party filed (and served via email) a “Notice of Ruling on Defendant DS Services and Costco’s Motion for Protective Order and Motion to Seal,” advising therein of the new December 4, 2020 hearing date.


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