Judge: Cherol J. Nellon, Case: 22STCV02576, Date: 2023-03-20 Tentative Ruling

Case Number: 22STCV02576    Hearing Date: March 20, 2023    Dept: 28

Plaintiffs Susana Madrid and Daniel Villa’s Motion to Compel Deposition of Defendant Helio Group’s Apex Witness Simon Lazar

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On January 21, 2022, Plaintiffs Susana Madrid (“Madrid”) and Daniel Villa (“Villa”) filed this action against Defendants Overland Asset Group, LLC (“OAG”), Oakmont Capital (“OC”), Helio Group (“HG”), Reed Architectural Group, Inc. (“RAG”), City of Los Angeles (“City”), County of Los Angeles (“County”) and State of California (“State”) for negligence, negligent hiring, retention and supervision, negligence – dangerous condition of public property, survival action and wrongful death. Plaintiff later amended the complaint to include Defendant O.L. Development, Inc. (“O.L.”).

On May 6, 2022, the City filed an answer and a Cross-Complaint against Cross-Defendants OAG, OC, HG, RAG, County and State for indemnity, apportionment of fault and declaratory relief. The City later amended in Cross-Defendant O.L. On June 7, 2022, OAG, OC and HG filed an answer. The Court dismissed RAG, without prejudice, pursuant to the City’s request. On August 15, 2022, O.L. filed an answer.

On May 17, 2022, the Court dismissed RAG, without prejudice. On January 24, 2023, the Court dismissed the State and County, without prejudice, pursuant to Plaintiffs’ request. On March 14, 2023, the Court dismissed OAG, without prejudice, pursuant to Plaintiff’s request.

On June 7, 2022, OAG, OC and HG filed an answer. On June 9, 2022, OAG, OC and HG filed a Cross-Complaint against Cross-Defendants Roes 1-20 for express indemnity and duty to defend, equitable indemnity, breach of contract, declaratory relief and apportionment of fault/contribution. They later amended the Cross-Complaint to include Cross-Defendant O.L. On September 8, 2022, O.L. filed an answer.

On June 10, 2022, O.L. filed an answer and a Cross-Complaint against Cross-Defendants OAG, OC, HG, City, County and State for implied indemnity, equitable indemnity, contribution and declaratory relief. On July 11, 2022, the City filed an answer. On July 28, 2022, OAG, OC and HG filed an answer.

On February 21, 2023, Plaintiffs filed a Motion to Compel Simon Lazar’s Deposition to be heard on March 20, 2023. On March 7, 2023, HG filed an opposition. On March 13, 2023, Plaintiffs filed a reply.

Trial is currently scheduled for July 21, 2023.

PARTY’S REQUESTS

Plaintiffs request the Court compel HG’s Managing Director/Co-Founder Simon Lazar (“Deponent”) to appear for his deposition. Plaintiffs also request the Court impose sanctions of $1,060.00 on HG.

HG requests the Court deny the motion and issue sanctions of $1,017.50 on Plaintiffs.

LEGAL STANDARD

Code of Civil Procedure § 2026.010 provides “(a) Any party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in another state of the United States, or in a territory or an insular possession subject to its jurisdiction. Except as modified in this section, the procedures for taking oral depositions in California set forth in Chapter 9 (commencing with Section 2025.010) apply to an oral deposition taken in another state of the United States, or in a territory or an insular possession subject to its jurisdiction.

(b) If a deponent is a party to the action or an officer, director, managing agent, or employee of a party, the service of the deposition notice is effective to compel that deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, or sampling. The deposition notice shall specify a place in the state, territory, or insular possession of the United States that is within 75 miles of the residence or a business office of a deponent.”

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“If, after service of a deposition notice, a party to the action… without having served a valid objection… fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing 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 or tangible thing described in the deposition notice.”  A motion under subdivision (a) shall comply with both of the following: (1) The motion shall 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.  (2) The motion 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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Compel Deposition

Plaintiffs’ complaint arises from a motorcycle accident in which the Decedent died allegedly after hitting a metal plate that was improperly installed in the road, causing him to lose control. The metal plate was installed in conjunction with a new development being constructed by Defendants, including HG, who subcontracted O.L. to help construct the complex which required temporary metal trench plates in the roadway. Plaintiffs brought claims against HG for negligence, negligent hiring/retention/supervision/training and wrongful death.

Plaintiffs served a notice of deposition for Deponent, but HG has refused to produce Lazar, claiming he is an apex witness. In order to take the deposition of an apex witness, the deposing party must show compelling reasons exist to permit the deposition. The deposing party must show that the witness has direct personal factual knowledge pertaining to the material issues in this case, and that the information to be gained is not available through any other source. Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911.

Deponent is the managing director of Helio, as well as the manager of venue residences. Deponent executed the contracts related to the development on behalf of HG and the contractor, as well as the sub-contractor. Deponent also executed the discovery verification responses and was identified as a witness with knowledge of facts relevant to HG’s denial of certain Requests for Admissions. Plaintiffs argue that Deponent is the only one who can answer questions regarding the hiring of O.L. and the relationship and responsibilities of his business at the site. Additionally, Plaintiffs argue that they are entitled to depose Deponent regarding the discovery responses that he verified under oath.  

HG claims that all work related to the metal plate was handled by O.L.; HG did not perform any of the work on the project or control the means or methods of its subcontractor. While Deponent did sign the contracts on HG’s behalf, he did not select O.L. as a subcontractor or negotiate the contract. Deponent received weekly updates on the project but was not involved in day-to-day work; that fell on Bill Mayes and Abe Saadat, whom HG has offered for depositions.

HG also claims Plaintiffs failed to meet and confer regarding most of the information they believe Deponent has unique or superior knowledge of. HG alleges that Plaintiffs should know that Deponent does not have unique or superior knowledge of these topics, as it served a Notice of PMK Depo for the same categories, to which HG identified Mayes as the PMK witness. Finally, HG notes that Plaintiffs are starting with Deponent’s deposition; they have not served discovery to find out Deponent’s personal knowledge and have not taken other depositions that revealed only Deponent would know the answer to a question.

The Court finds that Plaintiffs have not met the requirements to depose an apex witness, at this time. Plaintiffs have not shown that Deponent has unique or superior knowledge that could be obtained via any other source. Should Plaintiffs later discover, via the discovery process, that there are certain questions only Deponent can answer, Plaintiffs will then be entitled to take Deponent’s deposition. As is, the Court denies the motion.

Sanctions

The Court will award sanctions on Plaintiffs as Plaintiffs acted without substantial justification. HG requests sanctions totaling $1,017.50, based on 5.5 hours of attorney’s work at a rate of $185.00 per hour. 0.5 hours were spent reviewing the moving papers, 3.5 hours were spent drafting the opposition, 0.5 hours were spent reviewing the replying papers and 1 hour will be spent on the hearing. The Court finds this request reasonable and grants it in full.

CONCLUSION

Plaintiffs Susana Madrid and Daniel Villa’s Motion to Compel Deposition of Defendant Helio Group’s Apex Witness Simon Lazar is DENIED.

Plaintiffs Susana Madrid and Daniel Villa’s Request for Sanctions is DENIED.

Defendant Helio Group’s Request for Sanctions is GRANTED. Plaintiffs and Plaintiffs’ counsel are ordered to pay HG $1,017.50 in sanctions, within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.