Judge Daniel M. Crowley, Case Number: 23STCP04451, Date: 2024-02-21 Tentative Ruling

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Petitioner Marina Pacifica, LLC’s petition to take the oral depositions of Craig Edgecumbe and Robert Rocchi for the purpose of preserving their testimony for use in the event an action is subsequently filed is granted.

Marina Pacifica filed its verified petition in this matter on December 11, 2023. Marina Pacifica filed the instant petition on December 18, 2023. ABP Parcel 8, LLC (“ABP”) filed an opposition on February 6, 2024.[1] Marina Pacifica filed its reply on February 13, 2024.

One who expects to be a party…to any action that may be cognizable in any court of the State of California…may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), for the purpose of perpetuating that person’s own testimony or that of another natural person or organization.

Oral depositions are one method of discovery available under a Petition to Perpetuate Testimony. (C.C.P. §2035.020(a).)

A party desiring to conduct discovery prior to the commencement of litigation must file a verified petition in the superior court of the county of residence of at least one expected adverse party that sets forth the following information:

(1) The expectation that the petitioner or the petitioner’s successor in interest will be a party to an action cognizable in a court of the State of California.

(2) The present inability of the petitioner and, if applicable, the petitioner’s successor in interest either to bring that action or to cause it to be brought.

(3) The subject matter of the expected action and the petitioner’s involvement. A copy of any written instrument the validity or construction of which may be called into question, or which is connected with the subject matter of the proposed discovery, shall be attached to the petition.

(4) The particular discovery methods described in Section 2035.020 that the petitioner desires to employ.

(5) The facts that the petitioner desires to establish by the proposed discovery.

(6) The reasons for desiring to perpetuate or preserve these facts before an action has been filed.

(7) The name or a description of those whom the petitioner expects to be adverse parties so far as known.

(9) The substance of the information expected to be elicited from each of those from whom discovery is being sought.

If the court determines that all or part of the discovery requested pursuant to C.C.P. §§2035.010 et seq. “may prevent a failure or delay of justice, it shall make an order authorizing that discovery.” (C.C.P. §2035.050(a).)

Marina Pacifica made the requisite showing in its verified petition for this Court to grant the relief requested. First, Marina Pacifica expects to be a party litigant in an action that may be cognizable in a court of the State of California, namely, an action for declaratory relief as to the correct interpretation of for two contiguous parcels located on Pacific Coast Highway in south Long Beach, California (“Leases”), and other disputes as to the parties’ respective rights and obligations under those Leases. (Petition ¶1.) Marina Pacifica and ABP have arbitrated the rights the Leases confer on Marina Pacifica in arbitration. (Petition ¶2.) The Arbitrator’s final award ruled for ABP. (Petition ¶4.) Marina Pacifica seeks vacatur of the arbitration award. (Petition ¶4.)

Second, Marina Pacifica cannot bring an action at present because the arbitration award has not yet been confirmed. (See Petition ¶5.) Further, it appears an appeal is inevitable by either party regardless of the outcome of the petition to confirm the arbitration award. (Petition ¶5.)

Third, Marina Pacifica attaches the Leases to the Petition and identifies the dispute as one over the meaning of ¶25 in the Leases regarding a “Right of First Renewal” that comes into being when the Leases expire and survives for at least the next year. (Petition ¶¶1, 9, Exhs. A, B.)

Fourth, Marina Pacifica seeks to perpetuate testimony in the event that an action is subsequently filed by taking the oral deposition of two known third-party witnesses as authorized by C.C.P. §2035.020(a). (Petition ¶12.)

Fifth, Marina Pacifica seeks to depose two third party witnesses: Craig Edgecumbe (“Edgecumbe”) and Robert Rocchi (“Rocchi”).

In deposing Edgecumbe, Marina Pacifica expects to elicit facts related to negotiations of and meanings of lease terms, including but not limited to (i) the negotiation of the subject Leases from the perspective of the law firm representing one of the joint venture partners for development of the shopping center, (ii) the intent of Paragraph 25 and how it interplays with other terms in the Leases, and (iii) any other recollections he has as to the negotiation and drafting of the Leases in the 1970s. (Petition ¶13.)

In deposing Rocchi, Marina Pacifica expects to elicit facts related to negotiations of and meanings of lease terms, including but not limited to (i) the intent behind Paragraph 25 of the subject Leases from the perspective of Ernest W. Hahn, Inc. (“Hahn”), one of the joint venture partners for development of the shopping center, (ii) Hahn’s regular business practices when acquiring ground leaseholds for development, and (iii) any other testimony Rocchi can offer about his recollection of the Leases here and the properties at issue. (Petition ¶14, Exh. C.)

Sixth, Marina Pacifica seeks to perpetuate or preserve these facts before an action has been filed because the two identified witnesses are the only two known living witnesses to the negotiation and execution of the original Leases in 1972 and 1976, and they are both currently in their 80s. (Petition ¶17.) Marina Pacifica states their testimony is the best evidence of the intent of the original contracting parties and necessary to properly interpret ambiguous clauses in the Leases, but due to their age, they may no longer be available to testify as witnesses when litigation begins in the following years. (Petition ¶17.)

Seventh, Marina Pacifica expects ABP to be an adverse party in the anticipated action. (Petition ¶11.)

Eighth, Craig Edgecumbe address is 2780 Skypark Drive, Suite 325, Torrance, California 90505. (Petition ¶13.) Robert Rocchi’s address is 3783 Tomahawk Lane, San Diego, California 92117. (Petition ¶14.)

Finally, Marina Pacifica anticipates that Edgecumbe will testify, among other facts, that the intent of the drafters of the Leases was to (i) ensure the Leases actually terminated with a clean break to meet the applicable provisions of Civil Code §718 (which provides for temporal limitations on the duration of individual leases) and (ii) provide the lessee a one-time right to renew the Leases on the same terms as the original Leases, including the same duration (65 years) and same basic rent structure (percentage rent tied to market). (Petition ¶13.) Edgecumbe is further expected to testify to Marina Pacifica’s right to enter into subleases extending past 2039. (Petition ¶13.) Marina Pacifica anticipates Rocchi will testify that (i) Hahn would have insisted, as a condition to entertaining participation in a joint venture, upon any lease having a right of first renewal on the same terms and conditions which would extend the term, or he would not have done the Project; (ii) Hahn would have communicated that deal point to both the ground lessor and ground lessee (San Gabriel and Marina Pacifica, respectively) on no uncertain terms, and (iii) the Ground Lease for Marina Pacifica ended up having the right of renewal Hahn would have insisted upon. (Petition ¶14, Exh. C at ¶12.)

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] ABP is petitioner in the lead, related case, ABP Parcel 8, LLC vs Marina Pacifica, LLC, LASC Case No. 23STCP03931, involving the petition to confirm the arbitration award discussed in this petition.