Marilyn Osgood et al vs Smart & Final Stores, LLC et al

Though information appearing in the present record as further discussed herein suggests that on January 16, 2026, Defendants served Plaintiffs with an answer or answers to the complaint, the court has no record showing that Defendants have filed a response to the complaint with the court. On December 8, 2025, the court entered an order appointing Jan Martinez as guardian ad litem of J Osgood. On February 13, 2026, Plaintiffs filed a motion for an order granting preference in trial setting pursuant to Code of Civil Procedure section 36, subdivision (a), (the First Preference Motion), and M Osgood separately filed four discovery motions: (1) a motion for an order deeming facts admitted as against Smart & Final (the SF RFA Motion); (2) a motion for an order deeming facts admitted as against Chedraui (the Chedraui RFA Motion); (3) a motion for an order compelling Smart & Final's responses to set one requests for production of documents, and form and special interrogatories (the SF Motion to Compel); and (4) a motion for an order compelling Chedraui's responses to set one requests for production of documents, and form and special interrogatories (the Chedraui Motion to Compel).

The First Preference Motion was calendared for hearing on April 24, 2026. The SF RFA Motion, the Chedraui RFA Motion, the SF Motion to Compel, and the Chedraui Motion to Compel (collectively, the M Osgood Discovery Motions) were each calendared for hearing on June 5, 2026. Defendants separately filed oppositions to the First Preference Motion and each of the M Osgood Discovery Motions. On April 24, 2026, after a hearing, the court entered a minute order (the Preference Order) adopting its tentative

ruling denying the First Preference Motion without prejudice, as follows: ""At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference." (Code Civ. Proc., Sec. 36, subd. (c)(2).) "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: "(1) The party has a substantial interest in the action as a whole. "(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (Code Civ.

Proc., Sec. 36, subd. (a)(1), (2).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (Code Civ. Proc., Sec. 36, subd. (d).) "Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record." (Code Civ.

Proc., Sec. 36, subd. (f).) "Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved." (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 (Fox).) "Mere inconvenience to the court or to other litigants is irrelevant. [Citation.] Failure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36.

The trial court has no power to balance the differing interests of opposing litigants in applying the provision." (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) As a preliminary matter, in support of their opposition to the motion, defendants have filed objections to material contained in the declaration of attorney Posey. A declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a), "may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party." (Code Civ.

Proc., Sec. 36.5; see also Fox, supra, 21 Cal.App.5th at p. 534 [physician's declaration not required for a motion for mandatory trial preference].) Moreover, to determine the motion, the court considers only that evidence which is admissible and relevant to the issues presented. The declaration of attorney Posey is sufficient to show that Plaintiffs are each over 70 years of age, and suffer from various health or medical conditions as further detailed above. Defendants also do not present any reasoned argument disputing that Plaintiffs each have a substantial interest in these proceedings.

Notwithstanding that Plaintiffs are over 70 years of age and have a substantial interest in these proceedings, the motion fails to show that the health of Plaintiffs justifies a calendar preference to prevent any prejudice to Plaintiffs' interests in this litigation. For example, the motion does not raise any substantial medical doubt that either M Osgood or J Osgood will not survive beyond six months, suffer from a terminal illness, or why Plaintiffs may not survive any delay. (See Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199 [general discussion].)

It is also unclear if or when M Osgood began suffering from the brain tumor described by attorney Posey in relation to this litigation, or whether or to what extent the brain tumor has impaired M Osgood or caused the health of M Osgood to worsen. To the extent the available evidence and information shows that Plaintiffs' respective health or medical conditions are permanent, the motion does not show that those conditions are expected to further deteriorate in a manner that will prevent Plaintiffs from participating in these proceedings. (Fox, supra, 21 Cal.App.5th at p. 535 [noting that though party could participate in trial, party had "good reason for concern that will not be the case for much longer...."].)

Furthermore, court records reflect that J Osgood is represented in this action by Jan Martinez, who was appointed guardian ad litem for J Osgood pursuant to court order signed and entered on December 8, 2025. "The guardian ad litem's purpose is to protect the rights of the incompetent person. [Citation.] He or she has the

right to control the litigation on behalf of the incompetent person. [Citation.] 'Among his powers are the right to compromise or settle the action [citation], to control the procedural steps incident to the conduct of the litigation [citation], and, with the approval of the court, to make stipulations or concessions that are binding on the [incompetent], provided they are not prejudicial to the latter's interests [citation].' [Citation.]" (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453-1454.)

Considering the appointment of a guardian ad litem of J Osgood, and that the exercise of the guardian ad litem may exercise their powers in a manner that may not prejudice the interests of J Osgood, the motion fails to show why a preference is necessary to prevent prejudice to those interests. Under the totality of the circumstances present here, and considering that J Osgood's rights and interests in these proceedings are protected by the appointment of a guardian ad litem, the motion fails to show why a preference is necessary to prevent prejudicing Plaintiffs' interests in this litigation.

For these and all further reasons discussed above, the court will, at this stage of the proceedings, deny the motion for preference. The court's denial of the motion is without prejudice to any appropriate motion for a preference that may be filed by Plaintiffs in the future, should the circumstances of Plaintiffs' health or medical condition change or give rise to an impending loss of ability to participate in the litigation. The court is also inclined to consider the age and health of Plaintiffs in setting a trial date."

On May 5, Plaintiffs filed a document labeled as a "renewed" motion for an order granting preference in trial setting pursuant to Code of Civil Procedure section 36, subdivisions (a) and (d) (the Second Preference Motion), which was calendared for hearing on June 5, 2026. Defendants have filed an opposition to the Second Preference Motion. On June 5, the court entered an order continuing the M Osgood Discovery Motions and the Second Preference Motion to July 31, 2026. Analysis: (1) The M Osgood Discovery Motions The M Osgood Discovery Motions are each supported by separately filed declarations of M Osgood's counsel, Andrea G.

Posey (attorney Posey). Those declarations contain identical or nearly identical information as set forth below. In support of the SF RFA Motion, attorney Posey states that on January 2, 2026, M Osgood personally served Smart & Final's agent for service of process with an initial set of requests for admission (the SF RFA), special and form interrogatories (individually and respectively, the SF SI and SF FI, and collectively, the SF Interrogatories), and requests for production of documents (the SF RFP) (collectively, the SF Discovery Requests). (Posey Dec., P. 5 & exhibit A [SF RFA].)

Attorney Posey asserts that the deadline for Smart & Final to respond to the SF Discovery Requests was February 2, 2026. (Posey Dec., P. 6.) On January 16, having received no responsive pleading from Smart & Final, attorney Posey reached out to the adjuster assigned to the claim to let them know that this case was filed and that initial discovery had been propounded. (Posey Dec., P. 7 & exhibit C.) On that same day, Smart & Final submitted its answer to the complaint. (Posey Dec., P. 8.) On February 3, having received no discovery responses from Smart & Final, attorney Posey contacted counsel for Smart & Final to inform them that the deadline for providing responses to the SF Discovery Requests had passed, and that Smart & Final was required to provide responses without objections. (Posey Dec., P. 9 & exhibit D.)

After reviewing the proof of service of the SF Discovery Requests, counsel for Smart & Final responded that service of those requests on the agent for service of process was improper, and that those requests must be served on counsel for Smart & Final. (Posey Dec., P.P. 11, 13, 16 & exhibit D.) Attorney Posey contends that service of the SF Discovery Requests was proper, and that they offered to grant Smart & Final additional time to prepare responses. (Posey Dec., P.P. 12, 14-15, 17 & exhibit D.)

Attorney Posey asserts that, "[t]o date, Defendants have refused to provide responses to Plaintiff's properly served discovery without objections...." (Posey Dec., P. 19.) In support of the Chedraui RFA Motion, attorney Posey states that on January 2, 2026, M Osgood also personally served Chedraui's agent for service of process with an initial set of requests for admission (the

Chedraui RFA); form and special interrogatories (individually and respectively, the Chedraui FI and Chedraui SI, and collectively, the Chedraui Interrogatories), and requests for production of documents (the Chedraui RFP) (collectively, the Chedraui Discovery Requests); that the deadline for Chedraui to provide responses to the Chedraui Discovery Requests was February 2; that Chedraui submitted an answer to the complaint on January 16, 2026; that Chedraui's counsel asserts that service of the Chedraui Discovery Requests on the agent for service of process was improper; that attorney Posey asserts that service is proper; and that "[t]o date, Defendants have refused to provide responses to Plaintiff's properly served discovery without objections...." (Posey Dec. [Chedraui RFA Motion], P.P. 5-17 & 19 & exhibits A, C, D.)

Noted above, the separate declarations of attorney Posey submitted in support of the SF Motion to Compel and the Chedraui Motion to Compel include identical information in regard to the date and manner of service of the SF Interrogatories, the Chedraui Interrogatories, the SF RFP, and the Chedraui RFP; the purported deadline for Defendants to serve responses to those sets of discovery; the date Defendants purportedly submitted an answer to Plaintiffs' complaint; the parties' dispute regarding whether service of discovery on an agent for service of process was appropriate; and the purported refusal of Defendants to provide responses. (Posey Decs. [SF Motion to Compel & Chedraui Motion to Compel], P.P. 5-17 & 19; exhibits A, C, & D.)

The opposition of Smart & Final to the SF RFA Motion is supported by a declaration of Smart & Final's counsel, Mark Derflinger (attorney Derflinger), who states that on March 13, 2026, Smart & Final served "objection only" responses to the SF RFA; and that on April 30, Smart & Final served verified responses to those requests. (Derflinger Dec., P.P. 7-8, exhibits 3-4.) Attorney Derflinger states that Smart & Final disputes the validity of service of the SF RFA on Smart & Final's agent for service of process instead of its counsel. (Derflinger Dec., P. 5 & exhibit 2.)

The opposition of Chedraui to the Chedraui RFA Motion is also supported by an identical or nearly identical declaration of attorney Derflinger in regard to the dates that Chedraui served "objection only" and verified responses to the Chedraui RFA; and whether Chedraui disputes the validity of service of the Chedraui RFA on its agent for service of process. (Derflinger Dec. [Opp. Chedraui RFA Motion], P.P. 5, 7-8 & exhibits 2-4.) The identical or nearly identical declarations of attorney Derflinger separately filed in support of the respective oppositions of Defendants to the SF Motion to Compel and the Chedraui Motion to Compel also show that on March 16, 2026, Defendants each served their respective "objection only" responses to the SF Interrogatories, the SF RFP, the Chedraui Interrogatories, and the Chedraui RFP; and that on April 30, Defendants each served their respective verified responses to those requests. (Derflinger Decs. [Opps.

SF Motion to Compel and Chedraui Motion to Compel], P.P. 7-8 & exhibits 3-4.) Defendants also dispute the validity of service of the SF Interrogatories, the SF RFP, the Chedraui Interrogatories, and the Chedraui RFP on their agent for service of process. (Id. at P. 5 & exhibit 2.) Though the separately filed replies of M Osgood to the oppositions of Smart & Final and Chedraui present no information or evidence to dispute or effectively dispute the information contained in attorney Derflinger's declarations and described above with respect to the dates of service of "objection only" and verified responses to the SF RFA, the Chedraui RFA, the SF Interrogatories, the Chedraui Interrogatories, the SF RFP, or the Chedraui RFP, M Osgood contends in those replies that the issue of monetary sanctions is not mooted by the service of those responses.

In addition, as to the SF RFA Motion and the SF RFA, M Osgood asserts that she "does not press for an order deeming the matters admitted[]." (Reply [SF RFA Motion] at p. 3, l. 7.) As to the Chedraui RFA Motion, M Osgood contends that, because the responses of Chedraui to the Chedraui RFA fail to substantially comply with code requirements, the court should deem the Chedraui RFA admitted notwithstanding the service of responses to those requests. (a) Procedural issues In their respective oppositions to the M Osgood Discovery Motions, Defendants contend that those motions are procedurally defective because they improperly combine multiple discovery devices into a single filing.

The Civil Discovery Act (the Act), codified as Code of Civil Procedure section 2016.010 et seq., "sets out six methods by which litigants can obtain pretrial disclosure of relevant information: (a) depositions; (b) interrogatories; (c) inspections of documents, things, and places; (d) physical and mental examinations; (e)

requests for admissions; and (f) exchanges of expert trial witness information. [Citation.] The procedures relevant to discovery under each of these six methods are outlined in different chapters of the Act." (City of Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, 61 (PricewaterhouseCoopers).) Relevant here, Chapter 13 of the Act, which includes Code of Civil Procedure sections 2030.010 through 2030.410, governs interrogatories, and Chapter 14, which includes Code of Civil Procedure sections 2031.010 through 2031.060, governs inspection demands. (See Ibid.)

Though the SF Motion to Compel and the Chedraui Motion to Compel are each authorized under the Act, the orders requested in those motions are keyed to a purported failure of Defendants to respond to separate and specific methods or sets of discovery. (See, e.g., Code Civ. Proc., Sec. 2030.290, subds. (a) & (b) [interrogatories]; Sec.Sec. 2031.300 & 2031.310, subds. (a) & (b) [inspection demands].) For example, the discovery that is the subject of the SF Motion to Compel includes the SF SI, the SF FI, and the SF RFP; and the discovery that is the subject of the Chedraui Motion to Compel includes the Chedraui FI, the Chedraui SI, and the Chedraui RFP. (Notice of SF Motion to Compel at p. 2; Notice of Chedraui Motion to Compel at p. 2.)

Because motions to compel further responses to particular methods or sets of discovery are separately authorized under distinct provisions of the Act, the SF Motion to Compel and the Chedraui Motion to Compel each combine three motions under the Act with respect to the three methods or sets of discovery described above. (See Code Civ. Proc., Sec. 1003 ["[e]very direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion"].)

The fee to file a motion applies to "[d]iscovery motions under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure." (Gov. Code, Sec. 70617, subd. (a)(4).) "Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed." (Gov. Code, Sec. 70617, subd. (f).) Because each request for an order compelling a party to provide further responses to a specific set of discovery is a separately authorized motion as further discussed above, a separate filing fee is required for each motion whether or not they are presented in a single notice with combined supporting papers or presented with separate notices and supporting papers.

Though Defendants do not present, and the court is unaware of, any legal authority prohibiting a party from combining papers supporting some types of motions such as M Osgood has done here in regard to the SF Motion to Compel and the Chedraui Motion to Compel, there exists a procedural problem in regard to the payment of filing fees for those motions. Though the declarations of attorney Posey state that M Osgood incurred $120 in filing fees to file the Chedraui Motion to Compel, and $120 in filing fees to file the SF Motion to Compel (Posey Decs., P. 21), court records reflect that on February 13, 2026, M Osgood paid only one filing fee for each of those motions notwithstanding that each combines and presents three separately authorized applications. "Officers of the state, or of a county or judicial district, shall not perform any official services unless upon the payment of the fees prescribed by law for the performance of the services, except as provided in this chapter." (Gov.

Code, Sec. 6100.) "An unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed." (Duran v. St. Luke's Hospital (2003) 114 Cal.App.4th 457, 459.) For all reasons discussed above, M Osgood has not paid all required fees before filing the SF Motion to Compel and the Chedraui Motion to Compel. (b) Service of the SF Discovery Requests and the Chedraui Discovery Requests Defendants also contend that, because the SF Discovery Requests and the Chedraui Discovery Requests were improperly served on Defendants' registered agent prior to the appearance of defense counsel, the procedurally correct deadline to respond to those requests was March 16, 2026, after the date M Osgood filed the M Osgood Discovery Motions. (Derflinger Decs., P.P. 5, 7.)

For these reasons, Defendants contend, their responses to the SF Discovery Requests and Chedraui Discovery Requests were timely served. On December 30, 2025, Plaintiffs separately filed in this case a proofs of service showing that the summonses to Smart & Final and Chedraui were each personally delivered to CT Corporation System on December 16, 2025. (Dec. 30, 2025, Proofs of Service, P.P. 3(a), (b) & 5(a).) The parties do not dispute that the SF Discovery Requests and the Chedraui Discovery Requests were also served on CT Corporation System. (Posey Decs. [Chedraui RFA Motion & SF RFA Motion], exhibits B.)

Defendants do not present any information or evidence to

dispute whether CT Corporation System is the "person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable)." (Code Civ. Proc., Sec. 416.10, subd. (a).) The available evidence and information, including documents appearing in the court's own records, also does not show that, at the time of service of the SF Discovery Requests or the Chedraui Discovery Requests, Defendants "ha[d] an attorney in the action or proceeding," such that "the service of papers, when required, must be upon the attorney instead of the party...." (Code Civ.

Proc., Sec. 1015.) For example, the first document filed in this case which identifies counsel of record for Defendants is a "Notice of Change of Address" filed by Defendants on February 17, 2026, after the date the SF Discovery Requests and the Chedraui Discovery Requests were served. (See, e.g., Code Civ. Proc., Sec. 1014.) Also relevant here, Code of Civil Procedure provides that "Sections 1011 and 1013 apply to any method of discovery or service of a motion provided for in this title." (Code Civ.

Proc., Sec. 2016.050.) Service upon a party such as Defendants here "shall be made in the manner specifically provided in particular cases...." (Code Civ. Proc., Sec. 1011.) Defendants fail to explain why service of those requests on CT Corporation Systems violates those code provisions. The Act also provides: "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., Sec. 2017.010.) The approved methods for obtaining discovery are set forth in Code of Civil Procedure section 2019.010. " Every section of the Discovery Act pertaining to any method of discovery ... requires that at least one defendant has been served with the summons and complaint, and is subject to a holding period after service on a defendant, or requires that the party to whom the discovery is propounded has been served with the summons and complaint. (California Shellfish Inc. v.

United Shellfish Co. (1997) 56 Cal.App.4th 16, 22, original italics.) As to a party, a plaintiff may propound interrogatories, or make an inspection demand or requests for admission "without leave of court at any time that is 10 days after the service of the summons on, or appearance by, that party, whichever occurs first." (Code Civ. Proc., Sec. 2030.020, subd. (a) [interrogatories]; Code Civ. Proc., Sec. 2031.020, subd. (b) [inspection demands]; Sec. 2033.020, subd. (b) [admission requests].)

As the available information and evidence shows, without dispute, that the SF Discovery Requests and the Chedraui Discovery Requests were served by M Osgood on January 2, 2026, and absent any dispute as to whether CT Corporation System is Defendants' designated agent for service of process or whether Defendants were represented by counsel of record as of that date, Defendants have failed to show why service of those requests fails to comply with the Act. (c) The purported refusal of M Osgood to meet and confer Defendants further contend that M Osgood failed to engage in any meaningful or good faith effort to meet and confer prior to filing the M Osgood Discovery Motions, including after Defendants served their respective responses to the discovery at issue.

Because the available information and evidence reflects, without dispute, that Defendants served "objection only" responses to the SF Discovery Requests and the Chedraui Discovery Requests on March 16, 2026, and verified responses to those requests on April 30, 2026, the present record shows that no responses had been served as of the filing of the M Osgood Discovery Motions on February 13, 2026. As to the SF RFA and the Chedraui RFA, "there are three types of motions that a party propounding RFAs may initiate: (1) motions to deem RFAs admitted based upon the responding party's failure to serve any responses at all in a timely fashion [citation]; (2) motions to compel further responses to RFAs where the responses are claimed to be inadequate or the objections improper [citation]; and (3) motions to deem responses admitted

and/or for sanctions based upon the responding party's disobedience of an order compelling further responses [citation]." (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777 (St. Mary).) For the reasons discussed above, the SF RFA Motion and the Chedraui RFA Motion are "of the first-described type pursuant to [Code of Civil Procedure] section 2033.280, subdivision (b)." (Ibid.) Under those circumstances, "there is no meet and confer obligation at all...." (Ibid.; see also Code Civ. Proc., Sec. 2033.280 [setting for the rules that apply where a party fails to serve a response to requests for admission].)

In addition, where a party to whom interrogatories or inspection demands are directed fails to serve a response, the moving party is not required to meet and confer, or file a meet and confer declaration. (See, e.g., Code Civ. Proc., Sec. 2030.290 & Sec. 2031.300; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906 [efforts to meet and confer not required where no objections or responses were made]; accord, Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 (Sinaiko).)

For all reasons discussed above, Defendants have failed to show why M Osgood was required or failed to engage in any effort to meet and confer prior to filing the M Osgood Discovery Motions. (d) The SF RFA Motion, the SF Motion to Compel, and the Chedraui Motion to Compel Where a responding party provides discovery requested in a motion to compel and "the propounding party proceeds with the motion, ... the trial court has the discretion to rule on the motion." (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

The court may "compel responses without objection if it finds no legally valid responses have been provided", may "deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions[]", may take the motion off calendar, or narrow the scope of the motion to the issue of sanctions. (Ibid.; see also Cal. Rules of Court, rule 3.1348(a) [sanctions may be imposed "even though ... the requested discovery was provided ... after the motion was filed"].) Under the circumstances present here, which show that M Osgood does not seek an order deeming the SF RFA admitted and has elected to proceed with the SF RFA Motion, the SF Motion to Compel, and the Chedraui Motion to Compel in the absence of an appropriate separate statement, and for all reasons discussed above, the court will narrow the scope of those motions to the issue of sanctions. "The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories [or inspection demands], 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." (Code Civ.

Proc., Sec. 2030.290, subd. (c); Sec. 2031.300, subd. (c).) The record of the parties' correspondence shows that on February 5, 2026, attorney Derflinger sent an email to attorney Posey stating that they were not in possession of copies of the SF Discovery Requests or the Chedraui Discovery Requests, and that Defendants "have no issue with responding to the discovery once it is served." (Posey Dec. [SF RFA Motion], exhibit D.) In response, attorney Posey stated "[w]e are not required to re-serve this discovery and start the clock over simply because your office joined the case as Defense Counsel a couple weeks ago.

In the event your clients have not yet provided you with the discovery they received, I am attaching courtesy copies hereto...." (Ibid.) Attorney Posey also stated that M Osgood would be "filing motions to compel responses and for sanctions to defray the costs associated with bringing the motions." (Ibid.) Under the totality of the circumstances present here, including the matters reflected in the parties' record of correspondence as further discussed above which shows that counsel for Defendants did not indicate any refusal or failure by Defendants to provide responses and instead, informed attorney Posey that they were not in possession of copies of the discovery at issue notwithstanding whether service of that discovery was proper, the court finds that the imposition of sanctions would be unjust.

For these and all further reasons discussed above, the court will deny the SF Motion to Compel and the Chedraui Motion to Compel. As to the monetary sanctions requested in the SF RFA Motion, "[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion." (Code Civ. Proc., Sec. 2033.280, subd. (c).) For these and all further reasons further discussed above, and absent a dispute as to whether the responses of Smart & Final to the SF RFA substantially comply with code requirements, the court will grant the SF RFA Motion, in part, as to M Osgood's request for an award of monetary sanctions only. (

Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32.) Under the "principle of reasonableness" that governs discovery sanctions, a court has "the authority and the duty ... to determine for itself the reasonable amount of attorney fees resulting from the misuses of discovery to impose as monetary sanctions." (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 777.) "The principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award." (Id. at p. 791.)

The court finds that the amount of attorney fees requested in the SF RFA Motion is excessive under the circumstances here. The amount of the sanctions needs to reflect the reasonable expenses incurred as a result of the misuse of the discovery process. While the court agrees that the failure of Smart & Final to serve a timely response to the SF RFA necessitated some expenditure of counsel's time to prepare the SF RFA Motion, the papers submitted in support of that motion show that attorney Posey expended 1 hour to bring that motion, and that "[i]n those same efforts", attorney Posey's colleague, Corey Jollie, expended 2 hours. (Posey Dec. [SF RFA Motion], P. 21.)

Attorney Posey provides no other documentation or explanation of the hours expended. "[T]rial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Because the SF RFA Motion does not present novel or difficult issues of law or fact, there exists some question as to whether the hours expended by attorney Posey and Corey Jollie reflect duplicative or inefficient efforts, and are subject to compensation.

Noted above, court records also reflect that M Osgood paid $60 in fees to file the SF RFA Motion. For all reasons discussed above, including the court's own experience in addressing attorney fee issues, the court finds that 1 hour of attorney Posey's time at the reasonable hourly rate of $500 constitutes the reasonable amount of attorney fees incurred as a result of the SF RFA Motion, and for which monetary sanctions are appropriately awardable. The court will also award M Osgood filing fees in the amount of $60. (e) The Chedraui RFA Motion "If a party to whom requests for admission are directed fails to serve a timely response, ... [P.] [P.] [P.] [t]he "requesting party may move for an order that ... the truth of any matters specified in the requests be deemed admitted...." (Code Civ.

Proc., Sec. 2033.280, subds, (a), (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." (Code Civ. Proc., Sec. 2033.280, subd. (c).) "Subdivision (c) of section 2033.280 requires the court to evaluate whether the [response] 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)." (St. Mary, supra, 223 Cal.App.4th at pp. 779-780.) Instead, the responses are assessed "as a collective whole...." (Katayama v. Continental Investment Group (2024) 105 Cal.App.5th 898, 908.) Each response to requests for admission must "answer the substance of the requested admission, or set forth an objection to the particular request." (Code Civ.

Proc., Sec. 2033.210, subd. (b).) The responses of Chedraui to each of the Chedraui RFA include an objection only, on the grounds that Chedraui is not the proper business entity to be named in this lawsuit. (Derflinger Dec., exhibit 4 at pdf pp. 165-176.) M Osgood fails to explain why Chedraui may not set forth an objection to the Chedraui RFA; why the objections of Chedraui are without merit; or why there exist no grounds for relief from any waiver of those objections based on the service of a response that is in substantial compliance with section 2033.210, subdivision (b), or any mistake, inadvertence, or excusable neglect. (Code Civ.

Proc., P. 2033.280, subd. (a)(1), (2).) Furthermore, M Osgood may move for an order compelling a further response if M Osgood determines that "[a]n objection to a particular request is without merit or too general." (Code Civ. Proc., Sec. 2033.290, subd. (a)(2).) For these and all further reasons discussed above, the court will deny the Chedraui RFA Motion as to the request for an order that the truth of the matters specified in the Chedraui RFA are deemed admitted. (St. Mary, supra, 223 Cal.App.4th at p. 780.)

In support of the request for monetary sanctions, attorney Posey states that they expended 1 hour at the hourly rate of $500 to bring the Chedraui RFA Motion; that in those same efforts, Corey Jollie expended 2 hours at the hourly rate of $300; and that M Osgood incurred $120 in filing fees. (Posey Dec. [Chedraui RFA Motion], P. 21.) The same reasoning and analysis apply. For the same reasons further discussed above, the court will grant the Chedraui RFA Motion as to the request for monetary sanctions, and will award monetary sanctions in favor of M Osgood and against Chedraui in the amount of $500.

The court will also award M Osgood filing fees in the amount of $60. (2) The Second Motion for Preference "At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference." (Code Civ. Proc., Sec. 36, subd. (c)(2).) "A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: "(1) The party has a substantial interest in the action as a whole. "(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation." (Code Civ.

Proc., Sec. 36, subd. (a)(1), (2).) "In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference." (Code Civ. Proc., Sec. 36, subd. (d).) In support of the Second Motion for Preference, attorney Posey states that M Osgood is 87 years of age and that J Osgood is 89 years of age. (Posey Dec., P.P. 4, 7, & exhibit A [M Osgood & J Osgood driver licenses].)

M Osgood is the primary plaintiff who suffered severe injuries when the shelving unit fell on her at defendants' store on September 2, 2025, which include fractures to her pelvis and foot with knee pain and other soft tissue injuries. (Posey Dec., P.P. 5-6.) Following that incident, M Osgood was diagnosed with an unrelated brain tumor and, based on discussions regarding her condition, attorney Posey is informed that M Osgood's overall health has deteriorated. (Posey Dec., P. 6.) J Osgood also suffered harm resulting from the injury to his wife and primary caregiver, M Osgood, and was deprived of the love, assistance, comfort, care, protection and support M Osgood was more fully able to provide before the injuries she sustained as a result of this incident. (Posey Dec., P. 8.)

Attorney Posey is informed by family members of J Osgood, including his daughter and guardian ad litem Jan Martinez, that J Osgood suffers from dementia and other serious chronic conditions, and that his physical and cognitive condition is deteriorating. (Posey Dec., P.P. 8-9.) Attached to attorney Posey's declaration is a letter dated April 28, 2026, that attorney Posey received from J Osgood's primary care physician, Paul S. Aijian, M.D., describing J Osgood's condition. (Posey Dec., P. 10 & exhibit B.)

Dr. Aijian's letter states that J Osgood has been diagnosed with unspecified dementia, chronic kidney disease (Stage III), hypothyroidism, anemia, and seizure disorder, among other chronic conditions. (Posey Dec., exhibit B.) Dr. Aijian further states: "Given the progressive and cumulative nature of Mr. Osgood's conditions, particularly his dementia and comorbid chronic illness burden, combined with his advanced age, I have serious concerns regarding his overall prognosis. In my medical judgment, there is significant uncertainty as to whether Mr.

Osgood will survive beyond the next six (6) months." (Posey Dec., exhibit B.) Attorney Posey asserts that, given Plaintiffs' advanced ages of 87 and 89 years and their current medical conditions, there is a substantial risk that significant delay in bringing this case to trial could result in their being unable to testify competently, participate meaningfully in the case, or benefit from any recovery. (Posey Dec., P. 11.) The declaration of attorney Posey is sufficient to show that Plaintiffs are each over 70 years of age, and suffer from the health or medical conditions as further detailed above.

The available evidence and information also shows, without dispute, that Plaintiffs each have a substantial interest in these proceedings. The Second Preference Motion presents the same or substantially similar information and evidence presented in

the First Preference Motion, including as described in the Preference Order set forth above, to show why a preference is necessary to prevent prejudicing M Osgood's interest in this litigation. As the Second Preference Motion presents no new facts, circumstances, or legal authorities to show why a preference is necessary as to M Osgood, the same reasoning and analysis set forth in the Preference Order apply here. As to J Osgood, though the April 28, 2026, letter from Dr. Aijian described above concludes that there exists significant uncertainty as to whether J Osgood will survive beyond the next six months, that letter is not accompanied or supported by clear and convincing medical documentation.

Furthermore, though Dr. Aijian expresses uncertainty as to whether J Osgood will survive beyond the next six months, they do not state why there exists a substantial medical doubt that J Osgood will not survive beyond that period, or why. In addition, the conclusory assertion that J Osgood will not benefit from any recovery if he dies before the case is resolved is insufficient to show why a preference is necessary to prevent prejudicing J Osgood's interest in this litigation. For example, Plaintiffs do not dispute that J Osgood cannot testify at deposition or trial due to his dementia, and that his guardian ad litem will manage the litigation on his behalf. (Memorandum at p. 6.)

For the reasons further discussed in the Preference Order set forth above, because J Osgood is represented in this action by a guardian ad litem who is charged with protecting the rights and interests of J Osgood and who may control this litigation on J Osgood's behalf, the Second Preference Motion also fails to show why a preference is necessary to prevent prejudice to those rights or interests. The Second Preference Motion also fails to explain why a cause of action for loss of consortium, such as the cause of action asserted by J Osgood in the complaint, does not survive the death of the person entitled to commence that action, or why the damages recoverable in such an action or proceeding by a personal representative or successor in interest are otherwise limited. (See Code Civ.

Proc., Sec. 377.30 & Sec. 377.34, subd. (a).) The same or similar reasoning and analysis apply. For all reasons discussed above including in the Preference Order, the Second Preference Motion fails to show why a preference is necessary to prevent prejudicing Plaintiffs' interests in this litigation. Therefore, the court will deny the Second Preference Motion.. The court will, however, consider the age and health of Plaintiffs in setting a trial date. With their opposition to the Second Preference Motion, Defendants submit written objections to material appearing in the Posey declaration filed in support of that motion.

The court considers only that evidence which is admissible and relevant to the issues presented. In addition, as further discussed in the Preference Order, a declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a), "may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party." (Code Civ. Proc., Sec. 36.5; see also Fox, supra, 21 Cal.App.5th at p. 534.)

Tentative Ruling: Shirley A Walski et al vs Covenant Living West Tentative Ruling: Shirley A Walski et al vs Covenant Living West