Judge Gregory Keosian, Case Number: 18STCV05076, Date: 2023-09-05 Tentative Ruling

Plaintiffs and Defendants Sina Mardani and Azadeh Mardani’s Motion to Compel Depositions of Defendant and Plaintiff County of Los Angeles’ Persons Most Knowledgeable are GRANTED. Sanctions are awarded against County and its counsel in the amount of $2,600.

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Plaintiffs Sina, Azadeh, and Sohrab Mardani (Plaintiffs) move to compel the deposition of Defendant County of Los Angeles’s (County’s) Person Most Knowledgeable (PMK) with respect to two notices of deposition for different subjects. The first such notice seeks a PMK concerning categories related to the replacement of the subject sewer line, its estimated cost and effects, and related categories of documents. (Motion Exh. A.) The second such notice concerns any County investigation into comments made by County Engineer Robert Swartz concerning the impact of a nearby storm drain on a sag in the subject sewer line, and related documents. (Motion Exh. B.) County responded to both deposition notices with objections, including among them the contention that the notice “seeks information on those matters that is not presently known or reasonably available to a deponent,” and indicated that no deposition would take place. (Motion Exhs. C, D.)[1] The notices were served on February 6, 2024, the objections were served on February 22 and 23, and the Mardanis served a meet-and-confer letter on February 27, to which the County did not respond. (Bahar Decl. ¶¶ 3, 4, 7.)

The Mardanis argue that the information sought is relevant to the assessment of their compensation with respect to their inverse condemnation claim, as one of the measures of damages is the cost of making repairs, the loss of use of the property, or the present and prospective damages that are the reasonable incident of the taking. (Motion at p. 8, citing Frustuck v. Fairfax (1963) 212 Cal.App.2d 345, 367.) The Mardanis also contend that the information is relevant to their nuisance and trespass claims, which require analysis of whether the nuisance is reasonably abatable. (Motion at p. 9.) Because the County alone is the only party who may repair the sewer line, the Mardanis argue that questions concerning its replacement are solely in its possession. (Motion at pp. 12–13.) As to the storm drain notice, the Mardanis point to portions of the deposition of Robert Swartz, in which he indicated that he had reported the storm drain as the potential cause of the sag in the sewer line adjacent to the Mardanis’ home. (Motion Exh. F.) The Mardanis argue that a recent public records request indicate that the County is in possession of documents related to such an investigation, but are withholding them pursuant to an exemption for records pertaining to pending litigation. (Motion Exh. I.)

County in opposition argues that it is being asked to produce witnesses that it does not have. County’s counsel, Allen Thomas, states that he inquired with the Department of Public Works to see if witnesses could be produced for the categories at issue, and was informed as follows with regard to the replacement of the sewer segment:

The first deposition notice sought testimony from the persons most knowledgeable as to the replacement of the sewer line segment from manhole 239 to manhole 238. Based upon my communications with the Department of Public Works, a determination was made that there are no County employees or agents who could testify as to the categories in that deposition notice. I should also note that the subject pipe segment has not been replaced. There has been no determination about whether the pipe requires replacement nor an evaluation of its costs, the time involved to repair, etc. Therefore, no person could be produced for deposition for the categories stated in the Mardanis' deposition notice regarding such a replacement of that segment.

Based upon the County's replacement of a segment of pipe between Manholes 240 and 239 underneath the Mardanis' front yard, there is a strong probability that the County would use an outside third party contractor under contract with the County if said pipe was replaced. To date, the Department of Public Works has not engaged such a contractor for any replacement of a sewer line between Manholes 239 and 238. Based upon what occurred for replacement of the pipe between Manholes 240 and 239, I believe the third party contractor would provide the Department of Public Works with the cost estimate for the replacement pipe and a time schedule for said work. Consequently, the County's Department of Public Works does not have information for a person to be "most qualified" to testify about the categories listed in the deposition notice for the replacement of a sewer pipe between Manholes 239 and 238.

(Thomas Decl. at pp. 15–16.) Thomas states that County has produced documents related to the replacement of that segment between manholes 240 and 239. (Thomas Decl. at p. 16.)

Thomas also contends that he spoke to the County’s Storm Maintenance Division, and as there has been no investigation of the storm drain, or whether it has caused a sag in the sewer line, “there is no person to be produced by the County for said deposition.” (Thomas Decl. at pp. 16–17.) Thomas also states that the deposition dates were set unilaterally and without prior consultation with him about either the date of deposition or the availability of any witness to testify on the subjects. (Thomas Decl. at p. 17.)

The Mardanis in reply contend that even if no determination has been made concerning the replacement of the subject sewer line, they are entitled to testimony from someone other than County’s attorney concerning the process by which any such determination is made. (Reply at p. 4.) Moreover, the Mardanis refer back to the County’s response to their public records request, indicating that responsive documents existed concerning the storm drain investigation, and further note that their deposition notice sought testimony concerning those documents. (Reply at pp. 7–8.) The Mardanis also complain of a recent pattern in which the County objects to questions related to sewer maintenance decisions on the grounds that those decisions are made in consultation with counsel and therefore protected by the attorney-client privilege. (Reply at pp. 4–7.)

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

(Code Civ. Proc. § 2025.230.) The potential for a motion to compel the appearance of such a person has been endorsed in a leading treatise. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:476 [endorsing monetary sanctions “against an entity for designating someone lacking knowledge of all matters specified in the notice”].)

The Mardanis are entitled to the deposition on the notices and categories identified. County in opposition does not dispute the relevance of the given categories. It offers only the declaration of its counsel to testify to the fact that, upon consultation with the relevant departments, no person can be produced because no applicable determination or investigation on the given subjects was ever made. Yet this assurance of counsel is less useful to a litigant than a verified statement in a deposition by someone with knowledge of the facts.

Although County argues that its responses are similar to responses to interrogatories or requests for production that indicate no responsive information or documents exist (Opposition at p. 8, citing Code Civ. Proc. §§ 2030.220; 2031.230), comparison with these statutes shows the deficiency of the County’s response. The assurances offered under those statutes are (1) expressly authorized by the statutes themselves and (2) constitute verified statements of the responding party itself as to the lack of responsive information. (See Code Civ. Proc. §§ 2030.210, subd. (a) [response made “in writing under oath”]; 2031.250, subd. (a) [responding party must respond “under oath unless the response contains only objections”].)

By contrast, County’s arguments on its own inability to comply with notices of deposition under Code of Civil Procedure § 2025.230 are not authorized by any statute and are made solely through unverified averments contained in its objections or the secondhand information contained in the declaration of its counsel. Having shown good cause for the testimony sought, the Mardanis may seek to confirm the County’s claims by surer means than the materials submitted by County in opposition to this motion..

The County argues that whatever relief this court orders, it may not encompass the Mardanis’ requests for production, as the Mardanis have not served a separate statement addressing the documents at issue, as required under CRC Rule 3.1345, subd. (a). (Opposition at p. 12.) But there was no practical need for a separate statement for the requests for production, because County provided no separate responses to any such requests. County’s objections to both deposition notices included one final paragraph stating that “because the County will not be producing any person in response to the deposition notice to take a “PMK” deposition, and based upon the above, no documents will be produced,” thereafter reserving the right to object to documents on various grounds. (Motion Exhs. C, D.) The inclusion of a separate statement would have been unhelpful in addressing what was essentially one response, containing objections that the County does not support here.

If a motion to compel deposition is granted, “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

The Mardanis seek $3,250.00 in sanctions, representing five hours of attorney work at $650 per hour. (Bahar Decl. ¶ 12.)

[1] The Mardanis in reply contend that this objection is offered only as to categories of documents, and has otherwise been waived. (Reply at p. 3, fn. 1.) This is incorrect, however, as the objections are numbered according to the deposition notices’ six categories of examination, not the requests for production. (See Motion Exhs. A–D.)

[2] Questions concerning the County’s use of privilege objections at deposition are raised by the Mardanis for the first time in reply, and are not the proper subject of the present motion.