CIV 521896 UNITED RENTALS (NORTH AMERICA), INC. VS. DISNEY

CONSTRUCTION, INC., ET AL.

UNITED RENTALS (NORTH AMERICA), INC. J. BRIAN URTNOWSKI

DISNEY CONSTRUCTION, INC. CATHERINE W. DELOREY

MOTION TO COMPEL DEPOSITION ANSWERS AND PERSON MOST KNOWLEDGEABLE DESIGNATION FROM DEFENDANT SAFECO INSURANCE COMPANY OF AMERICA AND REQUEST FOR SANCTIONS AGAINST SAFECO INSURANCE COMPANY OF AMERICA AND ITS ATTORNEY CATHERINE DELOREY BY UNITED RENTALS (NORTH AMERICA), INC.

· Plaintiff’s motion is GRANTED. Defendant assets a number of attacks on the motion, none of which are persuasive.

· First, the motion is timely. A motion to compel deposition answers “shall be made no later than 60 days after the completion of the record of the deposition”. C.C.P. § 2025.480(b). CCP § 2025.520(b) and (c) provide that, unless the parties agree otherwise, the deponent has 30 days after the notice within which to change the form/substance of the deposition answers and approve or refuse to approve the transcript. It is unclear as to whether the 60 days begins to run from when the deposition officer sends notice that the transcript is ready for review, or following the additional 30-day period for making changes. This Court, unaware of any case which is directly on point, adopts a common-sense approach in finding that the 60-day period runs from the conclusion of the review period established in CCP 2025.520, for it would be illogical to deem the record “complete” before the time has expired for changes to be made. The court reporter’s letter indicating the original transcript of the deposition was available was dated March 20, 2014. The deponent had 30 days thereafter to review and make changes, which would have been April 20, 2014. The 60th day after April 20, 2014 was June 18, 2014. This motion was filed on May 20, 2014. However, even if the Court did not adopt this rationale, the motion was still filed timely. CCP 1013 governs the service of notices, such as the notice of transcript herein. The notice was mailed on March 20, 2014, and CCP 1013 extends the date of service when mailed by 5 additional calendar days; the 60th day would then have been May 25, 2014.

· Secondly, the Court finds that Plaintiff complied with the requirement to meet and confer before filing this motion. It is odd that Defense counsel suggests this is a basis for denying relief when she seemingly never responded to Plaintiff’s written efforts at conferring. Counsel for Plaintiff did not simply give up in attempting to meet and confer when ignored by Defense counsel, but rather made repeated efforts, both in writing and telephonically. The Court is not aware of a hard and fast rule as to exactly how many times a party is required to be ignored before it satisfies its obligation under CCP 2025.480(b), but it certainly finds that Plaintiff’s counsel acted in good faith to resolve this matter absent a formal motion.

· Finally, there is absolutely no legal authority for Defendant’s proposition that its objections to the inquiry as to whether the witness it produced as the PMK were meritorious, invoking attorney-client privilege and/or work product privilege to this basic question of the witness who it is obligated to “designate and produce” under CCP 2025.230. Without question, Plaintiff is entitled to inquire as to whether the witness sitting for deposition is in fact the person most knowledgeable. Moreover, not only is Plaintiff entitled to ask, but the deponent is obligated to answer. Defense counsel’s repeated invocation of attorney-client privilege is without support.

· Plaintiff’s motion for sanctions is GRANTED. However, the sanction is against the attorney only, for it would be unjust to sanction the witness who was merely following the advice of counsel in not answering the question. Attorney Catherine Delorey shall pay $3,247.50 to Plaintiff on or before July 15, 2014.

· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Lisa A. Novak, Department 13.

MOTION FOR AN AWARD OF ATTORNEY FEES BY LIBERTY MUTUAL GROUP, INC. AND LIBERTY MUTUAL INSURANCE COMPANY

· By this motion Defendants seek to recover as the prevailing parties under Civil Code section 9564(c), which states that in an action to enforce the liability on the bond, the court shall award the prevailing party a reasonable attorney’s fee. This fee shifting scheme for public works actions derives from the requirement that a payment bond be issued as a condition of being awarded a contract by a public entity. The legislative intent behind this requirement is to provide additional protection against defaulting general contractors and non-payments by nonqualified sureties.  Walt Rankin & Associates, Inc. v. City of Murrieta (App. 4 Dist. 2000) 84 Cal.App.4th 605; Powers Regulator Co. v. Seaboard Sur. Co. of New York (App. 2 Dist. 1962), 204 Cal.App.2d 338.

· Plaintiff initially filed causes of action against Defendants seeking to enforce a bond issued by Safeco. In its opposition Plaintiff states that it named the Liberty entities as defendants because pre-litigation correspondence it received in response to its proof of claims on the bonds was on Liberty Mutual letterhead. Both Plaintiff and Defendants argue to some degree that the opposing party failed to cooperate in discovery to some extent. Plaintiff contends that Defendants never asserted prior to the filing of the litigation that they were not the proper party, and that once they did make this claim they refused to provide information in support thereof. Defendants’ demurrers were sustained based upon a failure of Plaintiff to allege sufficient facts demonstrating that the Liberty defendants were liable for the bond issued by Safeco. Plaintiff eventually dismissed its claims against the Liberty defendants, who had maintained they were not the sureties.

· While the language of Civ. Code 9564 is clear that attorney’s fees shall be awarded to the prevailing party to enforce the liability on the bond, what is not so clear is whether or not the Liberty defendants can recover under this provision. There is no real issue that Defendants prevailed in their defense of these claims, however it remains to be seen whether or not they are a party intended to recover under this fee-shifting statute. Whereas Defendants fault Plaintiff for failing to provide any authority in support of its position that Defendants should not recover, Defendants fail to provide any authority to support its claims that as the non-surety, it is entitled to an award of attorney’s fees. Not a single case cited by Defendants involves a situation wherein an entity sued under a bond successfully proffers the defense, as here, that they are not in fact the surety. The Court could find no case which has held that a non-surety is entitled to an award of attorney’s fees under Civ. Code 9564. This statute was intended to ensure that parties contractually bound to perform meet their obligation or else face the consequence of absorbing the prevailing party’s attorney’s fees following litigation. However, by its own concession, Defendants were never contractually obligated to Plaintiff. The legislative intent of Civ. Code 9564, as set forth in the cases cited herein, does not seem to have ever been to punish a party for misidentification of the proper surety.

· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Lisa A. Novak, Department 13.

MOTION TO TAX COSTS OF DEFENDANT LIBERTY MUTUAL GROUP, INC. BY UNITED RENTALS (NORTH AMERICA), INC.

· Plaintiff’s Motion to Tax Costs of Defendant Liberty Mutual Group Inc. is granted and denied in part. The motion is denied as to the $228.95 for deposition related costs. The motion is granted as to the $388.21 for overnight and vendor filing costs. Defendant has failed to meet its burden of showing that these charges were reasonable and necessary.

· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Lisa A. Novak, Department 13.

MOTION TO TAX COSTS OF DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY BY UNITED RENTALS (NORTH AMERICA), INC.

· Plaintiff’s Motion to Tax Costs of Defendant Liberty Mutual Insurance Company is granted and denied in part. The motion is denied as to the $228.95 for deposition related costs. The motion is granted as to the $388.21 for overnight and vendor filing costs. Defendant has failed to meet its burden of showing that these charges were reasonable and necessary.

· Moving attorney is directed to prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court. The order is to be submitted directly to Judge Lisa A. Novak, Department 13.