Judge: Joseph Lipner, Case: 23STCV12209, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV12209    Hearing Date: April 2, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants and cross-defendants Leo Pustilnikov and Katherine Pustilnikov (the “Pustilnikovs”) move for an order compelling non-party witness Rambod Hadidi to appear at his deposition before April 15, 2024. The Pustilnikovs move for an order to show cause re: contempt against Hadidi for failure to appear at a deposition on February 5, 2024. The Pustilnikovs also move for sanctions in the amount of $5,246.45 against Defendant City of Los Angeles (the “City”) or against Hadidi.

            The Court DENIES the Pustilnikovs’ motions.

Background

This case concerns a landslide that damaged the homes of a number of homeowners.

Plaintiffs Leon Faynsod and Diana Shian-Ling Wang Chao, individually and as Trustee of the Diana Chao Living Trust (collectively, “Plaintiffs”) own homes that are adjacent to, and uphill from the Pustilnikovs’ home. Faynsod owns the property at 1101 Las Lomas Avenue, Pacific Palisades, California (the “Faynsod Property”). Chao owns the property at 1105 Las Lomas Avenue, Pacific Palisades, California (the “Chao Property”). The Pustilnikovs own the property at 949 Las Lomas Avenue, Pacific Palisades, California (the “Pustilnikov Property”). The Court refers to these parties collectively as the “Homeowners.”

On March 26, 2023, a landslide following a rainstorm damaged each of the three homes.

The Faynsod Property and Pustilnikov Property have been red-tagged by the City, indicating severe structural damage to the degree that the structure is too dangerous to inhabit. Portions of the Chao Property are yellow-tagged, indicating moderate damage to the degree that habitability is limited.

Plaintiffs filed an action against the City and the Pustilnikovs. The Pustilnikovs filed an action against Plaintiffs and the City. Those actions have now been joined into the instant action by stipulation.

The Homeowners allege that subsurface water infiltrated from a street maintained by the City because the street was severely cracked and disjointed, allowing runoff coming down the public roads to pool. The Homeowners allege that this water then migrated underneath the upslope properties along the bedding planes, resulting in the landslide. The Homeowners contend that the City is primarily responsible for the damage caused by the landslide.

Plaintiffs allege that the Pustilnikovs were contributorily negligent, asserting that a retaining wall on the Pustilnikov Property was defective and that the home was constructed too close to the toe of the slope.

The Pustilnikovs allege that Plaintiffs’ properties changed the natural surface water drainage and diverted water onto the slope, contributing to its instability during the heavy rainstorm.

On February 22, 2024, the Court denied the Homeowners’ motion for determination of good faith settlement amongst themselves, relying in significant part on the declaration of Hadidi, which indicated that the Homeowners overestimated the portion of the property damage for which the City was responsible.

The Pustilnikovs filed this motion on March 6, 2024. The City filed an opposition and the Pustilnikovs filed a reply.

Legal Standard

“Any party may obtain discovery…by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010.) “Except as provided in subdivision (a) of Section 2025.280 the process by which a nonparty is required to provide discovery is a deposition subpoena.” (Code Civ. Proc., §2020.010, subd. (b)). “A deposition subpoena may command any of the following: …. (c)The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).” (Code Civ. Proc., § 2020.020.)

“On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.” (Code Civ. Proc., § 2034.010.)

“If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240.” (Code Civ. Proc., § 2025.440, subd. (b).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) This motion must be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

Discussion

The Pustilnikovs served a notice of deposition of Hadidi on January 22, 2024, for a deposition date of February 5, 2024. The city served written objections asserting that the testimony of an expert cannot be taken until experts are designated under Code of Civil Procedure, section 2034.010. The City argues that Hadidi’s deposition is prevented by pre-expert-designation work product privilege. The City did not propose alternate dates. The parties met and conferred prior to the filing of this motion.

Work product privilege ceases to apply to an expert “the moment it is determined to use him as a witness.” (Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 449.) “The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document from which he testified; such a use of the work produce rule would be unconscionable.” (Ibid.) “[O]nce it appears reasonably certain that the consultant-expert “will *655 give his [or her] professional opinion as a witness on a material matter in dispute,” the attorney's work product privilege terminates and the expert's knowledge and opinions are subject to discovery and disclosure.” (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654–655.)

Courts have created an exception to the pre-disclosure bar on expert depositions where (1) an expert has submitted a declaration in support of a motion for summary judgment or an opposite the motion, and (2) the “objective facts presented create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis to the affidavit of declaration in question.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540-41).

The City argues that St. Mary is distinguishable because a motion for determination of good faith settlement does not require the same evidentiary exactitude as a motion for summary judgment. Further, St. Mary involved significantly greater foundational issues than here, where the primary foundational issue is that Hadidi has not yet conducted any destructive testing or soil sampling on the site. Hadid provided some foundation based on his analysis of soil data in the region and his expert knowledge of the subterranean flow of water.

Shortly before the Court denied the Homeowner’s good faith settlement application, the City requested that Hadidi be permitted to conduct such sampling. The Pustilnikovs argue that they must be permitted to depose Hadidi first, so that they can determine the basis for his opinion given in support of the City’s opposition to the settlement motion. The City responds that there is no need to depose Hadidi for that purpose because the Court has already ruled on that motion. The City further argues that, while the Homeowners may bring a motion for reconsideration, that motion must rely on new facts not previously discovered.

The Pustilnikovs argue that Hadidi’s declaration in support of the opposition to the settlement motion waives work product privilege because declarations have the same effect as testimony. However, St. Mary makes it clear that courts draw a more restrictive line when determining whether expert declarations waive the work product privilege. It is not enough for the declaration to be used in support of any motion, else the holding of St. Mary would not be limited to summary judgments, nor to situations where there are significant foundational issues. 

The Pustilnikovs have not cited any case that supports a broader exception than that set forth in St. Mary for the right to a pre-disclosure deposition of an expert. Nor have they cited a case where a pre-disclosure deposition of an expert was allowed in some context analogous to the one at issue here.

Moreover, the Pustilnikovs’ claim that they wish to take a deposition of Hadidi so that they can discover new and different facts and then use those facts to move for reconsideration is a circular argument.  There is nothing currently pending before the Court and thus no current basis to permit a deposition.