Judge: Jon R. Takasugi, Case: 21STCV12443, Date: 2023-01-03 Tentative Ruling

Case Number: 21STCV12443    Hearing Date: January 3, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion for a protective order is GRANTED IN PART, CONSISTENT WITH THIS RULING.

On 4/1/2021, Plaintiffs Caruso Affiliated Holdings, LLC, Caruso Management Company, Ltd., Americana Housing L.P., Americana Homes, LLC, Americana Homes II, LLC, and the Americana at Brand, LLC, filed suit against Allied World Assurance Company (U.S.) Inc., Endurance American Specialty Insurance Company, Endurance Assurance Corporation, Arthur J. Gallagher & Co. Insurance Brokers of California (Gallagher), alleging: (1) declaratory relief; (2) reformation; (3) negligence; (4) negligent misrepresentation; and (5) breach of fiduciary duty.

Now, Plaintiffs move for protective orders regarding the depositions of Rick Caruso, John McLeod, and Paul Hirst.

Discussion

            As a preliminary matter, the Court finds that this is a renewed motion based on different facts and circumstances (i.e., the filing of the Amended Complaint which seeks materially different damages). Given that it was filed within 10 days of those new circumstances, the motion is procedurally proper. (See California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43.)

Here, Plaintiffs seek: (1) an order denying or narrowing the deposition of Mr. McLeod and Mr. Hirst; (2) an order denying or narrowing the deposition of Rick Caruso; (3) an order limiting the deposition time.

Plaintiffs argue that this relief is warranted because the FAC no longer seeks damages based on alleged “coverage gaps” in the OCIP program, nor does it still allege that Gallagher failed to properly tender claims on certain insurance policies. Rather, the focus of Plaintiffs’ allegations are now the two general liability policies issued by AWAC and four general liability policies issued by Endurance (Sompo) entities.

The Court agrees in part.

As for Mr. Caruso, the Court previously denied a motion for a protective order from Gallagher’s deposition seeking testimony about “1) decisions about insurance coverage for the subject project, which was placed back in 2006, (2) the budget for the OCIP insurance program for the subject project, which would also have been prepared in 2006 or even earlier, and (3) the differences in the coverage placed back in 2006, for the condominium and other portions of the subject project.” (11/3/2022 Ruling.) This was because Gallagher sought information which either directly concerned communications which only Mr. Caruso could speak to, or decisions which he participated in. Now, however, the FAC no longer seeks damages related to the original construction. As such, testimony related to these topics is no longer relevant. The Court also agrees with Plaintiffs that Gallagher has not shown that Mr. Caruso played any role in reviewing, processing, and approval of the McLeod Law Group invoices for the Underlying Action such that his testimony is appropriate on these subjects.  However, the Court still finds that Gallagher is entitled to depose Mr. Caruso regarding the insurance policies now at issue, i.e., the two AWAC policies and the four Sompo policies, and thus declines the request to bar Mr. Caruso’s deposition altogether.

As for Mr. McLeod and Mr. Hirst, the Court admits some confusion regarding this request. In opposition, Gallagher argued that this request is unnecessary because, by the 1/3/2022 hearing, both depositions will have been completed: “Hirst’s deposition began on December 6 and is scheduled to be completed on December 21 (it was suspended on December 6 so that Mr. Hirst could address a personal matter). McLeod’s deposition began on December 13 and is scheduled to be completed on December 28 (it was suspended because McLeod stated that he was tired and could no longer provide his best testimony). There is no need or basis for the Court to issue any ruling relating to the McLeod or Hirst depositions at this time.” (Opp., 4:20-25.) In reply, Plaintiffs did not dispute this contention, but continued to advance the request that the scope of their depositions be narrowed. To the extent that this request remains relevant, the Court agrees that their depositions should be limited to the named insured issues involving the AWAC and Sompo policies.

Finally, Plaintiffs request that Mr. Caruso’s deposition be limited to only 2-3 hours on a single day and be designated confidential. The Court grants this request in part. By insisting on an 3 pm start time, Plaintiffs create an unnecessary risk that the deposition would be forced to proceed over two days. As such, the Court directs the parties to find an appropriate time wherein Mr. Caruso can appear for a morning deposition limited to half day.

Based on the foregoing, Plaintiffs’ motion for a protective order is granted in part, consistent with this ruling.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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