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Case Number: 20STCV05926    Hearing Date: June 24, 2021    Dept: 27

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

JOE LIEBFRIED,  

Plaintiff(s), 

vs. 

 

CITY OF HERMOSA BEACH, et al., 

 

Defendant(s). 

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      CASE NO.: 20STCV05926 

 

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS  

 

Dept. 27 

8:30 a.m. 

June 24, 2021 

 

  1. Introduction  

On February 13, 2020, Plaintiff Joe Leibfried filed this action against Defendants City of Hermosa Beach (“Defendant”) and Taylor Tennis Courts Inc. arising from an April 10, 2019 injury sustained on a pickleball court.  Plaintiff alleges that before April 10, 2019, Defendants converted tennis courts into pickleball courts, but did so negligently by placing concrete walls too close to the boundary markings on the court and failing to install protective padding in and around the pickleball courts.  (Compl., ¶ 2.)  Plaintiff alleges that through no fault of his own, he collided into the concrete wall at the pickleball courts.  (Compl., ¶ 4.)  

On March 19, 2021, Plaintiff noticed the depositions for Defendant’s PMK and Defendant’s employees, Justin Massey, Jani Lange, and Jessica Guheen for April 5 and April 2, 2021.  Defendant objected to the PMK deposition notice on the grounds that the categories were duplicative of an earlier deposition.   

On June 1, 2021, Plaintiff filed this Motion to compel the depositions of Defendant’s PMK and employees.  Defendant notes in opposition that they agree to produce a deponent for Categories 1-3 and 6, leaving categories 4 and 5 at issue in this Motion.  

Plaintiff has not filed a reply brief.  

 

  1. Legal Standard 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).) 

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).) 

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent.  (Code Civ. Proc., § 2025.450, subd. (g)(2).) 

  1. Discussion 

  1. Defendant’s Employees 

Plaintiff seeks to depose Justin Massey, Jani Lange, and Jessica Guheen Defendant argues that they are “apex” employees and do not need to be deposed.  It is undisputed that Massey is a City Council member and that Lange and Guheen are Parks and Recreations Commissioners.   

Plaintiff argues that Defendant has not provided any information besides the employees’ title which would show that they are “apex” employees.  Plaintiff further argues that even if they were apex employees, they are officials who have unique or superior personal knowledge of discovery information, thus entitling Plaintiff to take their depositions.  (Liberty Mutual Insurance Company v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.   

Because “the general rule in California and federal courts is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons” (Westly v. Super. Ct. (2004) 125 Cal.App.4th 907, 910), a party moving to compel the deposition of a top government executives have an evidentiary burden to meet. (See State Board of Pharmacy v. Super. Ct. (1978) 78 Cal.App.3d 641, 645 [Attorney General could be deposed only if “a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it”] (emphasis added).) 

Plaintiffs contend Lange and Guheen, as Parks and Recreations Commissioners, led the conversion of the tennis courts into pickleball courts and knew about the design, plans, and unsafe conditions of the court, as well as any discussions regarding safeguards and warnings.  As for Massey, who was a councilmember at the time and is now the Mayor of the City of Hermosa Beach, Plaintiff contends he had advance notice of the injuries at the pickleball courts due to the concrete wall.  Plaintiff states that he can testify as to this knowledge and what actions he took after receiving such notice, whether it was discussed among City personnel, and whether actions were taken or if any other reports were received.      

The only evidence Plaintiff relies on is his attorney’s declaration.  Counsel copies and pastes the vague statements made in the brief regarding the unique or superior knowledge of the proposed deponents.  (O’Neill Decl., ¶¶ 6-7.)  There is no evidence supporting these conclusory statements.  Plaintiff’s counsel’s declaration that he has “information” is insufficient to show whether the testimony is unobtainable from a lower-ranking official.   

In opposition, Defendant argues that Plaintiff has not provided any evidence that Massey had special knowledge or advance knowledge of injuries at the pickleball courts.  Defendant states that Massey’s only involvement with the pickleball courts is his approval by consent of City Council and therefore, he lacks any unique first-hand knowledge different than that of lower ranking officials who were deposed.  Defendant’s admission that Massey had any involvement defeats their claim that Massey is protected under Liberty Mutual, which involved an apex executive with no involvement at all.   

  1. Defendant’s PMK Categories 4 and 5 

Plaintiff generally asserts his right to depose Defendant’s PMK.  However, in opposition, Defendant explains that the situation far more nuanced and that its objections are limited to Plaintiff’s desire to depose a PMK for “[t]he City’s approved design plans for the Clark Field Pickleball courts” (Category 4) and the City’s liability insurance (Category 5).   

Defendant argues that Category 4, which demands a PMK for “[t]he City’s approved design plans for the Clark Field Pickeball Courts” is duplicative.  Defendant states that it previously produced a PMK for multiple categories including “[t]he conversation [sic] of the Clark Field tennis courts to four pickle ball courts” and “[t]he design and dimensions of the Clark Field pickleball courts.”  Thus, Defendant contends that Category 4 of this latest deposition notice is duplicative and harassing.  However, Defendants do not attach any exhibits confirming that the categories are duplicative.  The declaration which authenticates the missing exhibits does not even attest to the fact that witnesses responsive to specific categories were already produced.  Thus, the Court cannot conclude that Category 4 of Plaintiff’s deposition notice is redundant.     

Defendant also objects to Plaintiff’s request for a PMK regarding its liability insurance, arguing that the insurance policies are not admissible in court and therefore not relevant to liability or damages.  However, insurance is information that has been specifically added by the Legislature to be within the scope of discoverable information.  (Code Civ. Proc., § 2017.210.)  The provision ensuring its discoverability does not limit which discovery method a party can use.  Therefore, Plaintiff’s notice of deposition for a PMK on Defendant’s liability insurance is within the scope of discovery.   

  1. Conclusion 

Plaintiff’s Motion to compel the depositions of Justin Massey, Jani Lange, and Jessica Guheen is DENIED.  

Plaintiff’s Motion to compel the PMK depositions is GRANTED.   

 

Moving party to give notice. 

 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.   

 

         Dated this 24th day of June 2021 

 

  

 

 

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court 

 



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