Judge: Colin Leis, Case: BC680186, Date: 2022-08-16 Tentative Ruling

Case Number: BC680186    Hearing Date: August 16, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant and Cross-Defendant West Coast Arborists, LLC

RESPONDING PARTY:       Defendant and Cross-Complainant City of South Pasadena

Defendant West Coast Arborists’ Motion to Compel Answers at Deposition from Jesus Barajas and Produce Documents; Request for Sanctions

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

            This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017 against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief.

            On September 23, 2020, the City served the Deposition Subpoena for Personal Appearance and Third Amended Notice of Taking Oral Deposition of Jesus Barajas (the “Subpoena”). (McMahan Decl., ¶ 6, Ex. C.) Mr. Barajas is a former employee of the City. On November 5, 2020, Mr. Barajas was deposed as an independent witness. (McMahan Decl., ¶ 7.) During questioning by counsel for WCA, Mr. Barajas testified about correspondence between himself and counsel for the city, David M. Ferrante-Alan. During this line of questioning, Mr. Ferrante-Alan made objections on the basis of attorney-client privilege. (McMahan Decl., ¶ 7, Ex. D.)

            WCA now moves to compel Mr. Barajas to appear for deposition without claiming attorney-client privilege and also seeks monetary sanctions against counsel for the City.

DISCUSSION

This motion was originally filed on December 28, 2020, when this case was assigned to Judge John Kralik in Department B of the Burbank Courthouse. The case was reassigned to Department 3 of the Alhambra Courthouse on October 4, 2021, and all motions pending in Department B in this case were taken off calendar. WCA re-filed this motion on February 14, 2022, to be heard in Department 3.

At the time the motion was originally filed, the motion was timely. Code of Civil Procedure section 2025.480, subdivision (b) provides that a motion to compel a deponent to answer a question or produce a document must be made no later than 60 days after the completion of the record of the deposition. Although not set forth in WCA’s moving papers, WCA submits that the deposition transcript was completed on November 18, 2020. (Reply McMahan Decl., ¶ 2, Ex. F.) Therefore, the motion filed on December 28, 2020 was timely.

Although timely, WCA’s motion was nevertheless insufficient for the relief WCA seeks. As the City points out, WCA did not support its motion with a meet-and-confer declaration satisfying Code of Civil Procedure section 2016.040. The declaration is mandatory: a motion to compel deposition answers “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480.) The court’s analysis of WCA’s motion requires such a declaration describing in detail the efforts WCA made to satisfy its obligation to try to consult and deliberate with the City. Trying to reach an informal resolution involves more than bickering during the deposition. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) Exhibit E to counsel’s declaration – which does not describe WCA’s efforts, if any – is not enough, and the City’s curt response is not the end of the road. “The Discovery Act makes no exception based upon . . . speculation that the prospect of informal resolution may be bleak.” (Townsend v. Superior Court, supra, 61 Cal.App.4th at 1438.) Without a meet-and-confer declaration by WCA, the court cannot evaluate how far WCA tried to travel down that road before it filed its motion to compel.

CONCLUSION

Based on the foregoing, the court denies WCA’s motion to compel.

The City is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 16, 2022

_____________________________

Colin Leis

Judge of the Superior Court