Case Number: BC603920 Hearing Date: February 14, 2019 Dept: J

HEARING DATE: Thursday, February 14, 2019

NOTICE: OK

RE: Savengrith v. City of Pomona, et al. (BC603920)

______________________________________________________________________________

Defendant/Cross-Complainant City of Pomona’s MOTION TO COMPEL DEPOSITION OF THE PERSON MOST QUALIFIED OF VALLEY BUSINESS CENTER

Responding Party: Defendant/Cross-Defendant/Cross-Complainant, Valley Business Center, LLC

Tentative Ruling

Defendant/Cross-Complainant City of Pomona’s Motion to Compel Deposition of the Person Most Qualified of Valley Business Center is DENIED.

Background

This case involves a fatal car accident between Plaintiffs Nougdeng Savenrith’s and Monica Savengrith’s (“Plaintiffs”) son (“decedent”) and Defendant Javier Luviano (“Luviano”), which occurred after decedent had pulled out of the Walnut Valley Commerce Center (“WVCC”) onto Valley Boulevard. The complaint was filed on December 11, 2015.

On February 3, 2016, Luviano and Lizbeth Bucisosa (“Bucisosa”) filed a cross-complaint, asserting causes of action therein against Cross-Defendants City of Pomona (“City”), County of Los Angeles (“County”), State of California (“State”) and Roes 1-50 for:

1. Indemnity

2. Equitable Contribution

3. Declaratory Relief

On February 23, 2016, City filed a cross-complaint, asserting causes of action therein against Cross-Defendants Luviano, Buciososa, WVCC and Roes 1-100 for:

1. Total Equitable Indemnity

2. Partial Equitable Indemnity

3. Declaratory Relief

On March 7, 2016, Luviano and Buciososa filed an “Amendment to [Cross-]Complaint,” wherein WVCC was named in lieu of Roe 1. On March 17, 2016, Plaintiffs dismissed State, with prejudice. On April 29, 2016, City filed an “Amendment to Cross-Complaint,” wherein Ventura Foods, LLC (“Ventura”) was named in lieu of Roe 1. On May 11, 2016, Plaintiffs dismissed County, without prejudice. On May 16, 2016, Plaintiffs filed an “Amendment to Complaint,” wherein WVCC was named in lieu of Doe 1. On September 8, 2016, Plaintiffs filed another “Amendment to Complaint,” wherein Ventura was named in lieu of Doe 2. On December 6, 2016, Plaintiffs dismissed Ventura, without prejudice. On June 6, 2017, City dismissed Ventura, with prejudice. On August 15, 2017, this matter was transferred from Department 93 (personal injury hub) to this instant department.

On October 16, 2017, the court granted WVCC’s motion for leave to file a cross-complaint against Wohl Property Group (“Wohl”), RGA Architects (“RGA”), Thienes Engineering (“Thienes”), Environs, Inc. (“Environs”), Oltmans Construction Company (“Oltmans”), NorCal Engineering (“NorCal”), Ajit Randhava & Associates (“Randhava”), Valley Business Center (“VBC”) and Roes 1-50 for:

Express Contractual Indemnity

Equitable Indemnity/Declaratory Relief

On January 3, 2018, Plaintiffs filed an “Amendment to Complaint,” wherein Randhava was named in lieu of Doe 3. On January 4, 2018, Plaintiffs filed “Amendment[s] to Complaint,” wherein Wohl was named in lieu of Doe 4, Thienes was named in lieu of Doe 5, Environs was named in lieu of Doe 6, Oltmans was named in lieu of Doe 7, NorCal was named in lieu of Doe 8 and VBC was named in lieu of Doe 9. On January 18, 2018, WVCC dismissed NorCal, without prejudice, and dismissed Environs as to its first cause of action, without prejudice.

On January 23, 2018, Oltmans filed a First Amended Cross-Complaint, asserting causes of action therein against Cross-Defendants Calpak Landscape, Inc. (“Calpak”), RGA, Thienes, Environs, NorCal, Randhava, VBC, City and Roes 1-100 for:

Breach of Contract

Express Contractual Indemnity

Comparative Equitable Indemnity

Contribution

Declaratory Relief for Duty to Defend

Declaratory Relief for Duty to Indemnify

On February 2, 2018, Plaintiffs and Oltmans each dismissed Thienes, without prejudice. On February 8, 2018, Plaintiffs dismissed NorCal, without prejudice. On February 8, 18, Environs filed a cross-complaint, asserting causes of action therein against Moes 1-100 for:

Equitable Indemnity

Apportionment/Contribution

Declaratory Relief

Implied Indemnity

Express Indemnity

Breach of Contract

Declaratory Relief (Duty to Defend)

Declaratory Relief (Duty to Indemnify)

On February 16, 2018, WVCC dismissed its first cause of action against Thienes, without prejudice. On March 2, 2018, the court deemed WVCC’s First Amended Cross-Complaint (“FACC”) filed that day; said FACC asserts causes of action therein against Cross-Defendants Wohl, RGA, Thienes, Environs, Oltmans, NorCal, Randhava, VBC and Roes 1-50 for:

Express Contractual Indemnity

Equitable Indemnity/Declaratory Relief

On April 4, 2018, WVCC dismissed its first cause of action against Wohl, without prejudice. On April 11, 2018, Oltmans filed “Amendment[s] to [Cross-]Complaint,” wherein Luviano was named in lieu of Roe 1 and Buciososa was named in lieu of Roe 2. On April 26, 2018, WVCC dismissed its first cause of action against Oltmans, without prejudice.

On May 8, 2018, Oltmans filed an “Amendment to Cross-Complaint,” wherein Trestle Property & Association Management, Inc. (“Trestle”) was named in lieu of Roe 3. On May 10, 2018, Calpak filed an “Amendment to [Cross-]Complaint,” wherein Trestle was named in lieu of Doe 1.

On May 11, 2018, Plaintiffs filed a First Amended Complaint, asserting causes of action therein against City, Luviano, Bucisosa, County, State and Does 1-100 for:

Premises Liability

General Negligence

Motor Vehicle

General Negligence

Premises Liability

General Negligence

General Negligence

On June 1, 2018, Thienes filed a cross-complaint, asserting causes of action therein against Calpak, WVCC and Does 1-20 for:

Indemnification

Apportionment of Fault

Declaratory Relief

On June 5, 2018, VBC filed a cross-complaint, asserting causes of action therein against WVCC, Luviano, Buciososa, City, 3PX USA, Inc. (“3PX”), Calpak and Roes 1-50 for:

Indemnity

Apportionment of Fault

Declaratory Relief

Express Indemnity

On June 28, 2018, Oltmans dismissed its first and second causes of action against Trestle, without prejudice. On July 6, 2018, Plaintiffs filed an “Amendment to Complaint,” wherein Trestle was named in lieu of Doe 10.

On July 10, 2018, City filed a cross-complaint, asserting causes of action therein against VBC and Roes 201-250 for:

Total Equitable Indemnity

Partial Equitable Indemnity

Declaratory Relief

On August 8, 2018, Thienes dismissed WVCC, with prejudice. On August 14, 2018, Thienes and CalPak dismissed one another without prejudice. On August 16, 2018, Plaintiffs filed an “Amendment to Complaint,” wherein 3PX was named in lieu of Doe 11. On August 24, 2018, WVCC dismissed Thienes, with prejudice. On August 31, 2018, Thienes dismissed its cross-complaint, without prejudice. On September 5, 2018, WVCC dismissed Oltmans, with prejudice.

On October 10, 2018, CalPak filed an “Amendment to Cross-Complaint,” wherein GardenView, Inc. (erroneously sued as Garden View Landscape, Nursery & Pools) (“GardenView”) was named in lieu of Doe 2. On November 15, 2018, WVCC dismissed Wohl and Environs, with prejudice.

On December 7, 2018, GardenView filed a cross-complaint, asserting causes of action therein against Roes 1-100 for:

Express Contractual Indemnity

Implied Indemnity

Contribution and Indemnity

Declaratory Relief

A Trial Setting Conference is set for February 13, 2019.

Legal Standard

CCP § 2025.010 provides, in relevant part, that “[a]ny party may obtain discovery. . .by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

CCP § 2025.230 states that “[i]f the deponent is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonable available to the deponent.”

CCP § 2025.450(a) provides that if, after a deposition notice is served, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection, fails to appear for examination or to produce for inspection any document, electronically stored information, or things described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony, and the production of any document, electronically stored information, or things described in the deposition notice.

A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

The motion shall also set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (CCP § 2025.450(b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement providing all information necessary to understand each discover request and all the responses at issue. (California Rules of Court, Rule 3.1345(a),(c).)

Discussion

City moves the court for an order compelling the deposition of VBS’s Person Most Knowledgeable (“PMK”), on the basis that the PMK has failed to appear for the noticed deposition.

On November 19, 2018, City mail-served a Notice of Taking Deposition of the Person(s) Most Knowledgeable for Valley Business Center and Request for Production of Documents at Deposition. (Kane Decl., ¶3, Exh. A.) The Notice set forth 15 categories of matters upon which the PMK was to be examined and contained 13 demands for production and inspection of documents. On December 11, 2018, VBC served its Objection to City of Pomona’s Notice of Taking Deposition of the Person(s) Most Knowledgeable for Valley Business Center and Request for Production of Documents at Deposition (“Objection”). (Id., ¶4, Exh. B.) The Objection contained objections to each of the categories of matters upon which the PMK was to be examined and to each of the 13 demands for production and inspection of documents. The Objection further expressly advised that “[t]his Notice of Deposition was unilaterally set and no deponent/person most knowledgeable will appear on December 20, 2018.”

On December 18, 2018, City’s counsel Maurice Kane (“Kane”) wrote VBC’s counsel Sherry L. Grguric (“Grguric”), requesting that the name of VBC’s previous owner “[t]o facilitate a more fruitful and focused redirection of the Person Most Knowledgeable deposition process.” (Id., ¶5, Exh. C.) On December 19, 2018, Kane again wrote Grguric, advising: “[W]e are in receipt of your Objections, however, the Valley Business Center Person Most Knowledgeable (“PMK”) deposition is still calendared for our law offices tomorrow, Thursday, December 20th. If the PMK has no information concerning maintenance, installation, permitting or any other topic or sub-topic, we need that testimony and any of his observations concerning the Monument Sign on the record, and if there are no responsive documents within Valley Business Center’s custody, control and/or possession, we need to confirm the efforts undertaken to search for them.” (Id., ¶6, Exh. D.) On December 20, 2018, the date noticed and calendared for the PMK’s deposition, City’s counsel called VBC’s counsel to inquire whether any individual would be produced for the PMK deposition and was apprised that there would be no appearance. (Id., ¶ 10.) A Certificate of Non-Appearance was taken. (Id., ¶ 11, Exh. H.) Kane did not indicate whether any post-December 20, 2018 meet and confer efforts were made.

The court finds that VBC’s PMK has not “failed to appear.” VBC expressly objected to the Notice on the basis that the deposition had been unilaterally set and that no deponent/PMK would appear on December 20, 2018. There is no indication in the moving papers that City met and conferred with VBC on this issue prior to taking VBC’s PMK’s Certificate of Non-Appearance on December 20, 2018. Grguric attests that she was on vacation from December 19, 2018 through December 31, 2018. (Grguric Decl., ¶2.)

Additionally, City has not provided a CRC Rule 3.1345 separate statement. Failure to include the separate statement as required is, in and of itself, grounds for denial of the motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

The motion is DENIED.