B. Thibadeau v. City of Cupertino, et al.		CASE NO. 112CV234911
DATE: 16 January 2015	TIME: 9:00	LINE NUMBER: 5

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15 January 2015.  Please specify the issue to be contested when calling the Court and counsel.

On 16 January 2015, the following motions were argued and submitted:

1. The motion of Defendant City of Cupertino (“the City”) to compel Defendant State of California (“the State”) to designate and produce for deposition the State’s Person Most Knowledgeable (“PMK”) [1] and produce documents requested in the 29 October 2014 notice of deposition,
2. the City’s motion to compel the deposition of Nader Eshghipour (“Eshghipour”) and Bob Salazar (“Salazar”) and produce documents requested in the notice of deposition; and,
3. the City’s motion for monetary sanctions.

Defendant State of California (“State”) filed formal opposition to the motion.[2]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

1. Statement of Facts.

The action arises out of a 22 November 2011 trip and accident that took place on North Wolfe Road at the southwest juncture of sidewalk and the I-280 overcrossing in Cupertino. The accident location is owned by the State of California (“the State”) and is located within California Department of Transportation’s (“CDOT”) District 4. Plaintiff Bob Thibadeau (“Plaintiff”) alleges he was running when he tripped and fell on a pavement offset at a juncture of the approach sidewalk and the bridge. Plaintiff claims the offset was obscured by fallen leaves and morning shadows. Plaintiff sustained a shoulder injury, has had two surgeries, and is claiming ongoing shoulder and arm impairment. Plaintiff named both the City of Cupertino and the State of California as Defendants in his suit for dangerous condition of public property filed 25 October 2012.

Plaintiff’s case against Defendants hinges on the issue of Defendants’ actual or constructive notice of the subject sidewalk offset. The City asserts that it had no actual or constructive notice. The State admitted that it owns the property where the accident took place but alleges it has no liability because of the Freeway Maintenance Agreements (“FMAs”) signed and approved by the City which purportedly requires the City maintain the subject sidewalk area. The dispute rests on the State and City’s varying interpretation of the FMAs specifically as to the parties’ respective duties to inspect. The State asserts that the City’s duty to maintain includes a duty to inspect while the City contends that the State has a duty to inspect and notify the City of any defects it wants the City to repair.

1. Discovery Dispute.

On 15 July 2014 Plaintiff’s attorney deposed State employee Paul Wilson (“Wilson”), the bridge maintenance supervisor. (Declaration of Thomas Trachuk (“Decl. Trachuk”) p. 3:7-8.) Wilson produced a 20 page Caltrans intranet document entitled “Maintenance Agreements – Curb and Sidewalk Inspections and Repairs.” (Decl. Trachuk p. 3:8-10.) The State’s Intranet Form states that the State inspects sidewalks annually, noting hazardous conditions on the “Curb and Sidewalk Repair Report Form” and then sending a “Sidewalk Notification form” to the local agency responsible for maintenance to request the local agency to make repairs. (Decl. p.3:13-15). The State Intranet Form directs questions to Alierza Rezaee. (Decl. Trachuk p. 3:15-16.) Wilson admitted that he did not know the State’s sidewalk inspection policies and that he had never completed either a Sidewalk Repair form nor a Sidewalk Notification Form. (Decl. Trachuk p. 3:16-17, 19-20.)

The City then noticed the depositions of State employee Rezaee and the State’s Person Most Knowledgeable (“PMK”) regarding the State’s notifications of local public entities regarding requests for sidewalk repairs. (Decl. Trachuk p. 4: 4-5;10-11.) The State’s attorney produced Paul Wilson as the State’s PMK at the 29 October 2014 depositions despite Wilson’s previous testimony that he lacked knowledge regarding this specific issue. (Decl. Trachuk p. 4:12-14.)  Each deposition notice included a request for the production of five separate categories of documents (“RPD”) relating to the State’s sidewalk inspections and State’s notice to public entities generally, and to the City specifically requesting sidewalk repairs. (Decl. Trachuk p. 5:1-3.) The only documents produced in response to the RPD at the 29 October 2014 depositions of Rezaee and Wilson were the two current exemplar Repair Report and Notification Forms. (Decl. Trachuk p. 5:3-5.)

Rezaee, at the 29 October 2014 deposition, testified that CDOT’s Deputy Director of Maintenance in District 4 where the accident took place is Nader Eshghipour (“Eshghipour”) and that Eshghipour has overall responsibility to ensure the District’s policies and practices for inspecting sidewalks annually is done. (Decl. Trachuk p.6:1-3.) Eashghipour’s name is printed on the top signature line of the Sidewalk Notification Form. (Decl. Trachuk p. 6:3-4.) Rezaee further testified that Bob Salazar (“Salazar”) currently is, and was, at the time of the accident, the regional manager and is the one whose signature appears on the Sidewalk Notification Form letters requesting sidewalk repairs that are sent to local public entities. (Decl. Trachuk p.7:12-16.)

The City served the State with a notice of deposition with request for production of documents[4] of both Eshghipour and Salazar to take place 3 December 2014 with each notice. (Decl. Trachuk p7:8-9; 17-19.) On 19 November 2014 counsel for the State sent a letter stating he would be unable to appear at those depositions and had no one to cover them. (Decl. Trachuk p.8:2-3.)

Counsel for the City requested the State re-designate a PMK in lieu of Paul Wilson, to produce the RPDs requested in the PMK deposition notice/ Rezaee’s deposition notice, and to provide a date for the depositions of Eshghipour and Salazar which had been noticed for 3 December 2014.

A meet and confer letter was sent by City’s Counsel to counsel for State on 21 November 2014. On 26 November 2014 the State’s Objections to Deposition Notices and Requests for Production of Documents was received by the City. (Decl. Trachuk p.9:3-4.) On 1 December 2014 counsel for State, via telephone, conveyed that despite the State’s written objections he would still be producing witnesses for deposition and requested an extension of time for deposition dates. (Decl. Trachuk p.9:8-12.) On 2 December 2014 counsel for State sent an email advising that the State would not produce either Eshghipour or Salazar for deposition. (Decl. Trachuk p. 9:15-16.)

On 4 December 2014 counsel for City and State discussed withdrawing the deposition notice of Eshghipour if Salazar’s testimony established that Salazar had knowledge of the State’s policies and procedures relating to sidewalk inspections and repairs and the State’s communications with local public entities regarding repairs. (Decl. Trachuk p.10:11-14.) Counsel agreed the depositions would take place 11 December 2014 following further confirmation. On 9 December 2014 Smith faxed a letter advising that all depositions were off calendar until 15 December 2014 due to storm conditions. (Decl. Trachuk p. 11:15-16.)

On 23 December 2014, the City filed the instant motion. On 5 January 2015 the State filed a declaration of Belvin Smith in opposition to the motion. On 12 January 2015 the State filed a reply to the City’s motion to compel. On 13 January 2015 the City filed a memorandum of points and authorities in reply to the State’s opposition to the motion and objections to the evidence submitted by the State in opposition.

III.     Discussion

At issue in this discovery is the parties’ duty to inspect. The State contends that the FMA establishes the City’s duty to maintain the area at issue and that duty to maintain includes a duty to inspect. The City asserts that the State has a duty to inspect and notify the city of any defects it wants the City to repair.

1. City’s Motion to Compel the State to Produce a PMK  for Deposition and  Produce Requested Documents

The City seeks an order to compel the State to produce the State’s Person Most Knowledgeable (“PMK”) [5] for deposition and provide documents responsive to RPD Nos.1-5[6] in the notice of deposition for the State’s PMK and State employee Rezaee.

1. Compel Deposition of PMK Regarding Sidewalk Repair Form and Production of Documents
   1. Legal Standard

If, after service of a deposition notice, a party to the action or…a person designated by an organization that is a party under Section 2025.230 [governing notices for PMK depositions], without having served a valid objection under Section 2024.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document…described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document…described in the deposition notice. (Code Civ. Proc. §2025.450, subd. (a).)

A party moving under section 2025.450 must set forth facts showing good cause justifying the production for inspection of any document described in the deposition notice. (Code Civ. Proc. §2025.450, subd. (b)(1).) “Good cause” has been construed liberally in the past. Justification for discovery is found where specific facts show the documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Dist. Co., Inc. v. Sup. Ct. (1967) 65 C2d 583, 587.) The motion shall also be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. §2025.450, subd. (b)(2).)

As noted above, under Code of Civil Procedure section 2025.450, subdivision (a), a party may only move for an order compelling compliance with a deposition notice if the party or deponent failing to appear for the deposition has not served a valid objection under section 2025.410. Section 2025.410 provides that a deponent or party may assert a valid written objection based upon defect in the deposition notice. If a party or deponent asserts objections based on grounds other than defects in the notice, the party or deponent must nevertheless appear for the deposition as noticed, unless the party or deponent files a motion to stay the taking of the deposition and quashing the deposition notice (Code Civ. Proc. §2025.410, subd. (c)) or a motion for a protective order (Code Civ. Proc. § 2025.420. (See CCP §2025.280, subd.(a) [“The service of a deposition notice…is effective to require any deponent who is a party to the action…to attend and testify”].)

1. Analysis

The City argues that the State designated an employee who lacked the requisite knowledge to competently testify about the specific area requested in the deposition notice[7] when it designated Wilson as the PMK at the 29 October 2014 deposition. Further, the City seeks documents responsive to RPD Nos. 1-5 from the newly designated PMK. The City supports its request for production of documents in the City’s Separate Statement of Requests and Responses[8].

The State asserts that the two depositions of Wilson were not fruitful because the City continues to search for a PMK relating to “state maintenance-curb and sidewalk inspections and repairs” and the State does not inspect sidewalks or make repairs when there is a binding maintenance agreement with the City legally binding the City to maintain he area. (State Reply p. 2:12-15.) The State further alleges that, as it is in this case, the State has no duty to inspect, notify, or repair because of the FMA and that the FMA is self-executing.

Here, the information and documents the City seeks via its notice of deposition are relevant to the dispute between the State and City and within the scope of discovery.  The court in Maldonado v. Superior Court[9] found that a deposed party’s duty is limited to “producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available.” (Maldonado v. Superior Court (2002) 94 Cal.App.4^th 1390, 1398). Here, the State sent Wilson as the PMK at the 29 October 2014 deposition despite Wilson’s admission at the 15 July 2014 deposition that he did not have knowledge of requests for sidewalk repairs and could not produce the requested documents.

The State has presented objections based on grounds other than defects in the notice and at no time prior to the 29 October 2014 depositions did the State serve objections to the City’s Notices of deposition with requests for production of documents. Thus, the State must produce a PMK[1] for deposition. Further, the City has provided good cause and a meet and confer declaration justifying the production for inspection RPD Nos 1-5 as described in the deposition notice. (See Code Civ. Proc. §2025.450, subd. (b)(1).).

The Court takes note of the State’s allegation that the letters written by Thomas Trachuk are “self-serving declarations” “disguised as meet and confer letters.”

1. Compel Production of Documents Responsive to RPD Nos. 1-5[10] for Rezaee.
   1. Legal Standard

In the City’s Notice of Motion it states that the motion is made pursuant to Code Civ. Proc. Sections 2025.450 and 2025.480 but then fails to cite Code Civ. Proc. §2025.480 in its Memorandum of Points and Authorities .The applicable law to compelling the production of documents responsive to RPD 1-5 by Rezaee would be Code Civ. Proc. section 2025.480 since Rezaee appeared for deposition but then failed to produce the requested documents. Since the State did not object on these grounds the Court shall assume §2025.480 applies.

Section 2025.480 contemplates a deponent’s appearance at the deposition, followed by either a refusal to answer a question or a failure to produce a requested document. (See Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4^th 123, 133 [analogizing motion to compel pursuant to section 2025.480 to motion to compel further responses to requests for production of documents].) Section 2025.450 applies only when a deponent completely fails to appear and, consequently, does not produce the documents described in the deposition notice. (See Code Civ. Proc. §2025.450, subd., (a) [“the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”].)

Section 2025.480 is silent as to which party carries the burden of persuasion. As a general rule, the party objecting to discovery bears the burden of defending its objections. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4^th 245, 255.) Generally, “[a] motion to compel production of documents described in a deposition notice must be accompanied by a showing of ‘good cause’ – i.e., declarations containing specific facts justifying inspection of the documents described in the notice.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801,2; see also Code Civ. Proc. §2025.450(b)(1).)

1. Analysis

The City asserts that it has good cause to obtain the documents requested at the deposition of Rezaee because it has established that the requested documents are relevant to the subject matter and material to the issues in this action. The City also alleges that the State has failed to make any valid objections to the document requests and has refused to search for the documents. The State, in the Declaration of Belvin Smith in Opposition to the motion, notes that the State’s counsel informed City’s counsel that certain documents could not be produced in such a short time frame due to the holiday season and understaffed State claims department.

Here, again, the City has provided adequate good cause[11] and a meet and confer declaration justifying the production for inspection RPD Nos 1-5 as described in Rezaee’s  deposition notice. (See Code Civ. Proc. §2025.450, subd. (b)(1).)

In light of the foregoing, the City’s motion to compel the State to designate and produce for deposition the State’s Person Most Knowledgeable (“PMK”) [12] and produce documents requested in the 29 October 2014 notice of deposition for the State’s PMK and Rezaee is GRANTED.

2. The City’s motion to compel the Depositions of Eshghipour and Salazar and compel production of documents responsive to RPD Nos. 1-19

The City seeks an order compelling the State to produce Eshghipour and Salazar for deposition and production of documents requested in the 3 December 2014 Notice of Deposition[13].

1. Legal Standard

Code Civ. Proc. § 2025.450(a) provides that where a party fails to appear at a properly noticed deposition, without having served a valid objection, the party giving the notice may move for an order compelling the deponent’s attendance and testimony. To compel attendance at a deposition, after a party failed to appear, the moving party must show that the deponent was properly served with a deposition notice. (Code Civ. Proc. §2025.280(a).) The moving party must then show that the deponent did not appear for the deposition. (Code Civ. Proc. §2025.450(a).) A motion under Code Civ. Proc. § 2025.450(a) shall be accompanied by a meet and confer declaration under section 2016.040. (Code Civ. Proc. § 2025.450(b)(2).)

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of “good cause,” that is, declarations containing specific facts justifying inspection of the documents described in the notice. (Code Civ. Proc. § 2025.450(b)(1).) “Good cause” has been construed liberally in the past. Justification for discovery is found where specific facts show the documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Dist. Co., Inc. v. Sup. Ct. (1967) 65 C2d 583, 587.)

1. Analysis

The City noticed the depositions of Eshghipour and Salazar for 3 December 2014. Scheduling problems necessitated pushing the depositions to a date in mid-December. Counsel for the State subsequently filed general objections to the depositions and then declined to produce Eshghipour and Salazar for deposition. Here, the State makes several objections.

First, that the City was seeking to complete depositions of State employees when an unusually large weather system struck the Bay Area during the week of 8 December 2014 and that the weather system was the reason to cancel many depositions as most employees were to work and on standby.

Second, that Eshghipour has no knowledge regarding the major allegation made by the City. Third, with regards to the documents, the State again claims that State’s counsel informed City’s counsel that the documents could not be produced in such a short time due to the understaffed holiday season. Fourth, the State objects to the deposition of heads of the State declaring that the deposition seeks information that is not calculated to lead to the discovery of information relevant to the subject matter.

Here, the State has presented objections based on grounds other than defects in the deposition notice. Thus, based upon Code Civ. Proc. Section 2025.410 the party or deponent must nevertheless appear for the deposition as noticed, unless the party or deponent files a motion to stay the taking of the deposition and quashing the deposition notice the State must produce for deposition.

Further, the City has provided good cause and a meet and confer declaration justifying the production for inspection RPD Nos. 1-19 as described in the deposition notices of Eshghipour and Salazar. (See Code Civ. Proc. §2025.450, subd. (b)(1).) At Rezaee’s deposition on 29 October 2014 Rezaee testified he had no knowledge concerning the State’s sidewalk inspection practices nor the State’s requests for repairs to local agencies and identified CDOT’s Deputy Director of Maintenance in District 4, Nader Eshghipour (“Eshghipour”) as the person with overall responsibility concerning sidewalk inspections. Rezaee also testified that the Regional Manager working under Eashghipour, Bob Salazar (“Salazar”) is the person who sends out Sidewalk Notification forms to local public entities requesting sidewalk repairs.

Based on the foregoing, the City’s motion to compel the State to produce for deposition State employees Eshghipour and Salazar and compel production of documents responsive to RPD Nos. 1-19 in the 3 December 2014 notice of depositions is GRANTED.

3. Sanctions.

The City makes a request for monetary sanctions against the State in the amount of $3,420 for the State’s refusal to produce its employees for deposition and refusal to produce documents citing Code Civ. Proc. §2023.010(d)(e)(h), §2023.030(a), §2025.450(g)(1), and §2025.480(j). The request is code-compliant.

Code Civ. Proc. section 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30). The party’s motion must also state the applicable rule that has been violated. (Id.)

Code of Civil Procedure sections 2025.450, subd.(g)(1) and 2025.480 subd.(j) provide that if a motion to compel production of items described in a deposition notice is granted, the court shall impose a monetary sanction against the deponent or party with whom the deponent is affiliated unless it finds that the one subject to the sanction acted with substantial justification or other circumstances exist which would make the imposition of sanctions unjust. Code of Civil Procedure section 2023.030, subd.(a) [14] permits the imposition of sanctions against any party that engages in misuse of the discovery process. The City contends that the State has done so here by failing to produce its employees for deposition and refusing to produce requested documents. The State does not make any objections concerning the monetary sanctions requested.

Counsel for the City is reminded that requests for monetary sanctions may not ask for anticipatory costs. Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4^th 1548, 1551.) Counsel in calculating time spent added in 2 hours of time for the round trip for the motion hearing which is anticipatory. Further, spending 14 attorney hours preparing papers for a motion to compel is not reasonable. The Court  will allot 4 hrs at $185  and 4 hours at $165 = $1400.

Therefore, monetary sanctions for motion to compel discovery requests is GRANTED in the amount of $1400.

1. Order.

The City’s motion to compel the State to designate and produce for deposition the State’s Person Most Knowledgeable (“PMK”) [15] and produce documents requested in the 29 October 2014 notice of deposition is GRANTED.  The City’s motion to compel the deposition of  Nader Eshghipour (“Eshghipour”) and Bob Salazar (“Salazar”) and produce documents requested in the notice of deposition is GRANTED. The City’s motion for monetary sanctions against the State is GRANTED. The State is to pay the sum of $1,400 to the City within 20 days of the filing of this order.

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] The PMK regarding Sidewalk Repair Forms.

[2] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[3] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[4] RPD Nos. 1- 19.

[5] Regarding the State’s notifications of local public entities regarding requests for sidewalk repairs regarding Sidewalk Repair Forms.

[6] RPD No. 1 seeks exemplars of CDOT documents entitled “Curb and Sidewalk Repair Report form” and Sidewalk Notification form”, which forms were in use from 21 November 2000 to present. RPD No. 2 seeks any and all Curb and Sidewalk Repair Report forms noting sidewalk defects on North Wolfe Road from 21 November 2000 to present. RPD No. 3 seeks any and all Sidewalk Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the director of Public Works of the City of Cupertino form 21 November 2000 to present. RPD No. 4 seeks any seeks any and all Sidewalk Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the County of Santa Clara from 21 November 2000 to present. RPD No. 5 seeks any and all documents prepared by the CDOT District 4 from 21 November 2000 to the present which notify any and all local agencies allegedly responsible for maintenance of sidewalks on North Wolfe Road to repair sidewalk deficiencies on North Wolfe Road.

 

[7] Regarding the State’s notifications of local public entities regarding requests for sidewalk repairs regarding Sidewalk Repair Forms.

[8] Refer to City of Cupertino’s Separate Statement of Requests and Responses Re Motion to Compel Depositions with Production of Documents p.7-15.

[9] The court found that there was no basis for the trial court denying the motion to compel and that the company should have been ordered to bring their witnesses back to the depositions with the documents requested and with proof that the witnesses had undertaken some effort to familiarize themselves with the areas of their supposed “knowledge.” (Maldonado v. Superior Court (2002) 94 Cal.App.4^th 1390, 1397.

[10] RPD No. 1 seeks exemplars of CDOT documents entitled “Curb and Sidewalk Repair Report form” and Sidewalk Notification form”, which forms were in use from 21 November 2000 to present. RPD No. 2 seeks any and all Curb and Sidewalk Repair Report forms noting sidewalk defects on North Wolfe Road from 21 November 2000 to present. RPD No. 3 seeks any and all Sidewalk Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the director of Public Works of the City of Cupertino form 21 November 2000 to present. RPD No. 4 seeks any seeks any and all Sidewalk Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the County of Santa Clara from 21 November 2000 to present. RPD No. 5 seeks any and all documents prepared by the CDOT District 4 from 21 November 2000 to the present which notify any and all local agencies allegedly responsible for maintenance of sidewalks on North Wolfe Road to repair sidewalk deficiencies on North Wolfe Road.

[11] Refer to City of Cupertino’s Separate Statement of Requests and Responses Re Motion to Compel Depositions with Production of Documents p. 2-7.

[12] The PMK regarding Sidewalk Repair Forms.

[13] RPD Nos. 1-19.

[14] “Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.” (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4^th 1403, 1422.) As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

[15] The PMK regarding Sidewalk Repair Forms.