Judge: Joel R Wohlfeil, Case: 37-2021-00014113-CU-PO-CTL, Date: 2023-07-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - July 25, 2023

07/27/2023  01:30:00 PM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00014113-CU-PO-CTL FOSTER VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Sanctions, 06/06/2023

1. The Motion (ROA # 157, 190) of Plaintiff, DONNA FOSTER ('Plaintiff') for a protective order against Defendants DAVIS / REED CONSTRUCTION, INC. and ORAM PROPERTIES, INC. ('Defendants') regarding their attorney, Jesmin Alam's, abusive behavior during depositions, and appointment of a discovery referee paid for by Defendant, will be HEARD IN PART and is DENIED IN PART.

Preliminarily, the Court emphasizes its preference to provide counsel with wide latitude to represent his or her clients. The Court is reluctant, if not loathe, to intercede in counsel's strategic and, at times, zealous representation.

The Court also recognizes that, outside the presence of the Court, counsel's conduct can be far more animated and less restrained than counsel may conduct themselves in the courtroom. More animation and less restraint is not, in and of itself, a reason to appoint a discovery referee. However, though the ball park is substantial, there are still limits to the playing field before counsel venture into foul territory.

The Court has read and considered the deposition transcripts lodged by the parties in connection with this Motion. The volume of objections did not, by itself, trouble the Court; however, the nature and extent of the speaking objections, particularly at the deposition of Robert Daniel Dalry on April 11, 2023 (Exh. 'K' to the declaration of Attorney Alam), were unreasonable to the Court. The speaking objections appear to have started early in the deposition and proceeded nearly non-stop. Counsel is admonished that the Court expects more from counsel than is reflected in this transcript.

To counsel's credit, they appear to have reached an agreement on 'standing objections' prior to the deposition of Mr. Dalry on June 27, 2023 (see Exh. 'M,' and particularly at page 170, to the declaration of Attorney Alam).

The Court will HEAR whether the further relief sought by Plaintiff - a protective order and a discovery referee - is necessary at this point.

Plaintiff's putative request for sanctions - see declaration of Attorney Fisher - is DENIED. The Notice of Motion does not seek monetary sanctions.

Defendant's counter request for sanctions is DENIED. Plaintiff has not acted without substantial justification.

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2989040 CASE NUMBER: CASE TITLE:  FOSTER VS CITY OF SAN DIEGO [IMAGED]  37-2021-00014113-CU-PO-CTL _____ 2. The Motion (ROA # 164, 191) of Plaintiff DONNA FOSTER ('Plaintiff') for an order to impose issue sanctions (specifically, that the following issues be established: 1. Davis / Reed received Traffic Control permits 84621, 85032, 83528, 83834, 84256, 85535, 85536, and 86270 from the City of San Diego; 2.

Davis / Reed had control of the area near the crosswalk prior to the incident; 3. Davis / Reed hired American Fence Company to construct a pedestrian walkway in February 2019 through May 2019; 4.

American Fence Company cored the fence posts into the street asphalt including cores in the crosswalk of Broadway and Columbia; 5. Davis / Reed agreed to indemnify, defends and hold American Fence Company harmless for its work; 6. Davis / Reed is responsible for creating the hole in the crosswalk near the curb of Columbia and Broadway; 7. Davis / Reed owed Plaintiff a duty to act reasonably by returning the area where it worked to a safe condition; 8. Davis / Reed breached its duty owed to Plaintiff by failing to return the area where it worked to a safe condition; 9. Davis / Reed's failure to return the area where it worked to a safe condition was a substantial factor in causing Ms. Foster's injury), and evidentiary sanctions precluding Davis / Reed from introducing additional documents not already produced to further support its defense it did not do work in the area, the hole predated any work done by Davis / Reed, and it did not create the whole in the crosswalk besides what it has produced to date, and monetary sanctions against Davis / Reed and its attorneys of record, is DENIED.

This case is exceptionally contentious and, from Plaintiff's perspective, Defendant has failed to comply with its discovery obligations and the Court's order. See ROA # 124.

However, in reviewing Defendant's opposition, the alleged non-compliance is not clear to the Court. See ROA # 194, 195.

The Motion is DENIED on the basis of Plaintiff's failure to carry her burden on the nature and extent of the alleged non-compliance of the Court's order, which is the requisite foundation to the imposition of escalating sanctions.

Defendant's counter request for sanctions is DENIED. Plaintiff has not acted without substantial justification.

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