2015-00176097-CU-PO

Joseph Mercado vs. Sunrise Center Apartments

Nature of Proceeding: Motion for Protective Order

Filed By: McLaughlin, William T.

Defendants Sunrise Center Apartments and Dick James & Associates, Inc.’s (collectively, “Defendants”) motion for protective order is ruled upon as follows.

This personal injury action arises from an incident that occurred at Defendants’ property, an apartment complex. On March 9, 2013, Plaintiff was descending concrete stairs when one of the concrete stairs failed, causing him to fall awkwardly and injure his knee, neck, and lower back.

By way of this motion, Defendants seek the following relief:

a) The appointment of a discovery referee to monitor depositions of defense witnesses, to hear and determine all discovery motions and disputes relevant to said depositions, including those listed below, and to report findings and make recommendations thereon;

b) An order prohibiting questions regarding post-accident repairs, complaints, problems and Code violations at Sunrise Apartments, or at least limiting the scope of inquiry consistent with the May Order to stairs and risers; and

c) An order precluding the depositions of the defendants’ respective chief executive officers, Peter Afrooz and Dick James, until plaintiff has exhausted less intrusive discovery, or at least prohibiting plaintiff’s counsel from asking questions directed at annoying and harassing witnesses.

First, Defendants seek the appointment of a discovery referee based on their belief that additional issues will arise during the examination of defense witnesses because Plaintiff’s counsel has already asked, in Defendants’ opinion, inappropriate questions at deposition. (Memo. At 4:18-26.) Defendants also contend the relationship between counsel is strained, which threatens to frustrate and prolong discovery. Plaintiff opposes on the ground this is a straightforward premise liability case, exceptional circumstances do not exist, and Defendants have failed to demonstrate a valid legal basis for appointing a discovery referee.

Unless both parties have agreed to a reference, the Court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These factors include:

(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties’ objections where that procedure is necessary, not merely convenient. (CCP § 639(e).) Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference. (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105-106.)

The Court does not find that CCP § 639 supports Defendants’ request for the appointment of a discovery referee at this time. While there have been two prior motions to compel and a prior motion for protective order, the issues were not extremely complex or time consuming. Further, while there is a concurrent motion for issue and monetary sanctions, again, there is nothing particularly complex about the motion. Further, Defendants’ speculation that further issues may arise warranting future motion practice is insufficient to appoint a discovery referee over Plaintiff’s objection. The Court finds Defendants have failed to meet their burden to establish exceptional circumstances justify appointment of a discovery referee at this time. Accordingly, the motion to appoint a discovery referee is DENIED without prejudice.

Next, Defendants seek an order limiting the scope of questioning to pre-accident subjects, or at least only to post-accident questions concerning the risers and landings. Defendants contend information regarding post-accident repairs and related subjects are not discoverable. Defendants reason Plaintiff seeks this information to establish a claim for punitive damages, but punitive damages may only be awarded based on Defendants’ conduct that harmed Plaintiff, not based on subsequent conduct. Therefore, Defendants contend the information is not necessary. In the alternative, Defendants request the Court at least limit the discovery of post-accident repairs to “risers/landings” consistent with the Court’s prior May 1, 2018, discovery order.

In opposition, Plaintiff contends the conduct of the parties following the incident, including subsequent repairs, goes to the issue of ownership, control, and ratification, amongst others.

Code of Civil Procedure section 2017.010 provides, in pertinent part: “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.” The discovery statutes vest wide discretion in the trial court in granting or denying discovery, but the Court may not use its discretion to defeat the liberal policies of the discovery statutes. The Court also acknowledges the broad scope of the discovery right, permitting a deponent to be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action–even if the testimony will not be admissible at trial–so long as it appears reasonably calculated to lead to the discovery of admissible evidence. It is the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 382.)

Nonetheless, discovery is not limitless. “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.)

The Court is not persuaded that information concerning post-accident repairs is not reasonably likely to lead to the discovery of admissible evidence. As Plaintiff argues, the information could lead to information relevant to issues of ownership, control, and ratification. Based on the foregoing, Defendants’ motion to limit deposition questions is GRANTED in that questions concerning post-accident repairs shall be limited to “risers/landings.”

Finally, Defendants seek an order precluding Plaintiff from deposing Mr. Afrooz and Mr. James until less intrusive means of discovery have been exhausted. Defendants contend Mr. Afrooz and Mr. James are corporate presidents who lack personal knowledge of the incident and may, therefore, not be deposed unless less intrusive means of discovery have been exhausted. Defendants contend they have identified a number of current and former employees who do have personal knowledge of the incident and/or Plaintiff’s injuries, yet these witnesses have not yet been deposed. In support, Defendants rely on Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282. Defendants also not their prior motion for protective order did not raise or address this specific issue.

The court in Liberty Mutual held that a corporate president and CEO could not be required to appear for deposition in a lawsuit in which he had no involvement, absent the deposing party’s exhaustion of less intrusive means of discovery. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1284-85 [to support a motion for protective order barring the deposition, the president and CEO submitted a declaration stating that he had no knowledge of any facts alleged in the complaint].) It “amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate

hierarchy, absent a reasonable indication of the officer’s personal knowledge of the case and absent exhaustion of less intrusive means of discovery.” (Id. at 1287.)

“[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information. If not, as will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less intrusive means.” (Liberty Mutual Ins. Co., supra, 10 Cal.App.4th at 1289 (emphasis added).) “At the outset it would seem sensible to prevent a plaintiff from leap-frogging to the apex of the corporate hierarchy in the first instance, without the intermediate steps of seeking discovery from lower level employees more involved in everyday corporate operations.” (Id. at p. 1287.)

“Less intrusive means” would include the deposition of lower level employees with appropriate knowledge and involvement in the subject matter of the litigation; as well as interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff’s case; and the organizational deposition of the corporation itself, which will require the corporation to produce for deposition the most qualified officer or employee to testify on its behalf as to the specified matters to be raised at the deposition.

Plaintiff has not shown that Mr. James has any personal knowledge of the case or of discoverable information. Plaintiff’s opposition sets forth no argument whatsoever as to the unique or personal knowledge of Mr. James.

Plaintiff has also not shown that Mr. Afrooz has any personal knowledge of the case. Plaintiff argues Mr. Afrooz visits the property every three to six months, walks the properties and looks for safety issues during those visits, receives videos of the property sent to him by his managers, approves repairs and costs, and hires/fires the property managers. Plaintiff argues Mr. Afrooz is the ultimate decision maker when it comes to setting the standards for the safety of his property. However, none of the foregoing establishes Mr. Afrooz has any knowledge regarding Plaintiff’s particular claims regarding the safety of the stairs that caused his injuries. On the materials described in Plaintiff’s papers, there is no indication that Mr. Afrooz has unique or personal knowledge with respect to Plaintiff’s specific allegations and injuries in this case.

Second, Plaintiff has not shown that he has exhausted all “less intrusive” means of discovery with respect to Mr. James or Mr. Afrooz. As noted by Defendants, they identified nine witnesses who were at the property around the time of the incident or who otherwise have personal knowledge of the relevant facts and/or circumstances surrounding the incident, none of whom have been deposed. Defendants also note Plaintiff noticed the depositions of Defendants’ respective PMKs on subjects including maintenance, the stairway, and inspections of the stairway, but none of these depositions have been taken. There is also no evidence that Plaintiff has propounded adequate written discovery “directed at” the “officials” in question or sought to compel further responses to such discovery. (See Liberty Mutual, supra, 10 Cal.App.4th at 1089 (suggesting propounding “interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff’s case”).)

Accordingly, the Court is not persuaded that Plaintiff has fully exhausted the “less intrusive” forms of discovery available to him.

Therefore, Defendants’ motion precluding Plaintiff from deposition Mr. Afrooz and Mr.

James until less intrusive means of discovery have been exhausted is GRANTED.

Given the mixed results of this motion, Defendants’ request for sanctions is denied.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.

Item 3 2015-00176097-CU-PO

Joseph Mercado vs. Sunrise Center Apartments

Nature of Proceeding: Motion for Issue and Monetary Sanctions

Filed By: Wood, Christopher

Plaintiff Joseph Mercado’s motion for issue and monetary sanctions against defendant Sunrise Center Apartments is ruled upon as follows.

This personal injury action arises from an incident that occurred at Defendants’ property, an apartment complex. On March 9, 2013, Plaintiff was descending concrete stairs when one of the concrete stairs failed, causing him to fall awkwardly and injure his knee, neck, and lower back.

Plaintiff previously noticed the depositions of the property maintenance manager, Jon Amaral, the property’s principal owner, Peter Afrooz, and the property management company owner, Dick James. During the deposition of Mr. Amaral, defense counsel took the position that Mr. Amaral could not be asked about the prior history of the property, claiming the defense is admitting liability and, therefore, these questions are irrelevant. Defense counsel instructed the witness not answer any such questions and indicated all defense witnesses would be so limited. Plaintiff’s counsel halted the deposition and filed a motion to compel the deposition testimony of Mr. Amaral, Mr. Afrooz, and Mr. James.

On May 1, 2018, the Court denied the motion to compel as to Mr. Afrooz and Mr. James on the grounds that it was premature because, at that point, Defendants had not yet refused to produce either Mr. Afrooz or Mr. James for deposition or refused to answer any questions. As to Mr. Amaral, the Court granted the motion and ordered him to answer “any questions regarding the prior repair history of the property stairs, including any prior problems, complaints, or Code violations related to the stairs/risers.” (ROA 65 (emphasis added).)

On May 1, 2018, the Court also ruled on Defendants’ motion for a protective order to prohibit Plaintiff from deposing Mr. Afrooz and Mr. James or seeking any information relating to incidents, circumstances, inspections, an alleged violations that occurred or existed prior to Plaintiff’s fall. The Court denied the motion to prohibit the depositions completely, but granted the motion “to prohibit discovery into prior incidents, events, circumstances, inspections, and alleged violations unrelated to the stairs/risers at the property … .” (ROA 64 (emphasis added).)

Plaintiff then noticed and took the deposition of Mr. Afrooz in New York. Plaintiff asked questions concerning the time period after the incident relevant to punitive damages. During the deposition, counsel for Afrooz refused to allow Mr. Afrooz to respond to questions regarding information after the incident on the ground they sought information that was “beyond the scope of discovery.” Plaintiff then filed a motion to compel deposition testimony of Mr. Afrooz. In opposition to that motion, defense counsel contended the Court’s May 1, 2018, discovery order limited the scope of discovery to events prior to and around the time of the incident.

On October 2, 2018, the Court granted Plaintiff’s second motion to compel and found its May 1, 2018, discovery order concerned whether Plaintiff could inquire about prior events and was not intended to be a limitation on the scope of questioning or apply to the deposition of Mr. Afrooz. The Court ordered Mr. Afrooz to respond to non-privileged matters that include events that occurred subsequent to the incident. (ROA 102.) Monetary sanctions were also ordered and Plaintiff contends he has yet to receive those sanctions.

Following this order, Defendants filed a motion for protective order to preclude, among other relief, the depositions of Mr. Afrooz and Mr. James until Plaintiff has exhausted less intrusive discovery, or at least prohibiting Plaintiff from asking questions directed at annoying and harassing those witnesses. The motion for protective order is concurrently set for today’s date.

Plaintiff contends Defendants have refused to produce Mr. Afrooz forcing him to file this third discovery motion regarding the same deposition.

By way of this motion, Plaintiff seeks issue and monetary sanctions. Specifically, Plaintiff seeks an order from this Court finding the following:

1. That SUNRISE CENTER APARTMENTS’ stairwells and landings presented a dangerous condition to residents and guests of the property on March 9, 2013;

2. The state of disrepair of the stairwells and landings existed for years prior to March 9, 2013, and that such disrepair persists today;

3. That the state of disrepair was evident to ownership and management, and that they knew of the state of disrepair and did not take steps to make the property safe for normal use;

4. JOSEPH MERCADO was injured as a result of the failure of SUNRISE CENTER APARTMENTS to properly manage and maintain the stairwells;

5. In 2013, The City of Citrus Heights declared the property a public nuisance because of the state of repair of the property and its failure to properly maintain Code compliance;

6. As a result of the continued failure to maintain the property in a safe fashion, SUNRISE CENTER APARTMENTS maintained and managed the property with a conscious disregard for the safety of the tenants and guests, such as Mr.

MERCADO. This conscious disregard rises to the level of malice;

7. SUNRISE CENTER APARTMENTS’s maintenance and management of its

property was despicable and was done with a willful and knowing disregard for the rights or safety of is residents and guests; and

8. That SUNRISE CENTER APARTMENTS is subject to a finding of punitive damages in order to punish it for the harm suffered by Mr. MERCARDO and to discourage similar conduct by SUNRISE CENTER APARTMENTS in the future.

In a single sentence, Plaintiff also requests an Order that Plaintiff be granted leave to file a First Amended Complaint. This request for leave to file a First Amended Complaint is denied. Plaintiff sets forth no argument or explanation as to why such leave should be granted. The Court makes no determination on this motion as to whether or not leave to amend is proper.

As to Plaintiff’s request for issue sanctions, Plaintiff argues issue sanctions are appropriate because Defendants have misused and abused the discovery process and are prejudicing Plaintiff’s ability to prepare for trial. Specifically, Plaintiffs contend Defendants are precluding Plaintiff from obtaining information that would support a claim for punitive damages.

Plaintiff contends Defendants first refused to produce Mr. Afrooz to answer questions about the property prior to the incident because they had admitted liability, requiring Plaintiff to file his first motion to compel. However, the evidence does not support this conclusion. As was noted in the Court’s May 1, 2018, discovery order, the motion to compel as to Mr. Afrooz was premature because defense counsel had not yet refused to produce him. Indeed, Mr. Afrooz was thereafter deposed in New York. Plaintiff then contends defense counsel improperly instructed Mr. Afrooz at his deposition not respond to questions concerning events that occurred after the incident, requiring Plaintiff to file his second motion to compel. Here, the Court agreed with Plaintiff and granted the motion to compel and ordered Mr. Afrooz to respond to non-privileged matters that include events that occurred subsequent to the incident. Thereafter, Plaintiff contends Defendants have refused to produce Mr. Afrooz. However, the e-mail chain Plaintiff cites to as evidence of Defendants’ refusal actually indicates an attempt to set a date. Defense counsel states “Despite our anticipation that the court will grant our motion and terminate or postpone Mr. Afrooz’s deposition, I spoke to Mr. Afrooz and learned that he is available if needed to fly out here for his further deposition on November 19th.” (Wood Decl., Exh. 4.) Plaintiff’s counsel then responded “We will send out the deposition notice today for November 19th.” While defense counsel later responded that he forgot the 22nd is Thanksgiving and he is off that week, and then had not yet responded six days after Plaintiff’s request for a further date, the communications indicate a willingness to produce Mr. Afrooz for further deposition.

For misuse of the discovery process, the Court may impose issue, evidence, terminating, or monetary sanctions. (See, e.g. Code of Civil Procedure §§ 2023.010(d) and (g), 2023.030(a-(d).) “The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (CCP § 2023.030(b).)

The Court may impose sanctions that are suitable and necessary to enable the party

seeking discovery to obtain the objects of the discovery he seeks, but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793.)

In ordering sanctions, the Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal. App. 4th 967, 991-992.) However, sanctions are generally imposed in an incremental approach, with terminating sanctions being a last resort. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

Here, the Court is not persuaded that issue sanctions are warranted here. There has been one discovery order that was granted regarding Mr. Afrooz’s deposition, after which Mr. Afrooz was produced. While a dispute arose during the deposition as to what questions Mr. Afrooz can answer, it does appear that Defendants are willing to and working with Plaintiff to provide a further date for Mr. Afrooz’ deposition if Defendants’ concurrent motion for protective order is not granted. The fact that Defendants have filed a motion for protective order does not, in and of itself, warrant issue sanctions. Further, Plaintiff can, if necessary, move to compel deposition testimony from Mr. Afrooz if he continues to refuse to answer questions Plaintiff deems are relevant. Accordingly, the motion for issue sanctions is denied.

Plaintiff’s request for monetary sanctions is also denied. The Court finds that the circumstances would render sanctions unjust. (Code Civ. Proc. § 2023.030(a).)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.