Judge: Lee S. Arian, Case: 22STCV01775, Date: 2025-01-29 Tentative Ruling

Case Number: 22STCV01775    Hearing Date: January 29, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

This case arises from the death of Plaintiff's son, who passed away on January 2, 2021, following a physical altercation on the premises of Wayfinder Family Services. Plaintiff asserts claims against Defendant Good Guard Security, Inc. for alleged inadequate security and negligent provision of security services. For several months, Plaintiff has attempted to take the depositions of the following witnesses:

• Deposition of Lauryn Knighton
• Deposition of James Lubowa
• Deposition of the Person Most Knowledgeable regarding any investigation into the January 2, 2021, death of David Hillman at Wayfinder Family Services, Inc.
• Deposition of the Person Most Knowledgeable regarding prior instances of physical violence occurring on the premises of Wayfinder Family Services, Inc.

On May 3, 2024, Plaintiff noticed the depositions of Lauryn Knighton and James Lubowa for May 17, 2024. The deponents did not appear.

On August 8, 2024, Plaintiff re-noticed the depositions of Lauryn Knighton and James Lubowa for September 30, 2024.

On November 21, 2024, Plaintiff noticed the depositions of Lauryn Knighton and James Lubowa for December 16, 2024. The deponents again failed to appear, and Plaintiff obtained a notice of non-appearance.

On November 26, 2024, Plaintiff noticed the depositions of Defendant’s Person Most Knowledgeable regarding any investigation into the January 2, 2021, death of David Hillman at Wayfinder Family Services, Inc., and the Person Most Knowledgeable regarding prior instances of physical violence occurring on the premises of Wayfinder Family Services, Inc., scheduling them for December 17, 2024. The deponents did not appear.

Plaintiff now moves the Court to compel these depositions. Defendant has filed an opposition.

Discussion

Defendant does not contest that no representative appeared for the December 17 PMK deposition. Defense counsel filed a declaration stating that when he inquired whether anyone at the company had investigated the incident, he was told that the only known facts were those in the incident report and that no investigation had occurred. Counsel also inquired whether the company had knowledge of any prior violent incidents, and Defendant asserts that no such incidents occurred. Based on this, Defendant argues that no PMK exists for these two topics.

The Court is unpersuaded.

First, the role of a PMK under CCP § 2025.230 is to testify on behalf of the corporation regarding designated topics, including whether an investigation took place or whether the company had knowledge of prior violent incidents. A PMK’s testimony binds the corporate entity, whereas defense counsel’s declaration does not and cannot serve as a substitute for sworn testimony from a designated corporate representative.

Second, if no internal investigation occurred or the company was unaware of prior violent incidents, a designated representative must testify to that effect at deposition. Under CCP § 2025.230, a corporation must produce a witness who can provide binding testimony on matters within its knowledge, including the absence of an investigation or lack of awareness of prior violent incidents. A corporation cannot avoid its discovery obligations by asserting that no relevant information exists through counsel; rather, it must designate a representative to confirm that assertion under oath.

Accordingly, Defendant’s PMK is ordered to appear for deposition within 20 days of today's date on these two topics.

As to the depositions of Lauryn Knighton and James Lubowa, Defendant argues that they are no longer employees of the company and therefore fall outside the scope of CCP § 2025.450, which only empowers the Court to compel the deposition of an officer, director, managing agent, or employee of a party. Furthermore, defense counsel submitted a declaration stating that in September 2024, he attempted to contact these former employees but was unable to reach them and subsequently informed Plaintiff that they were no longer employed with the company.

The Court agrees with Defendant that CCP § 2025.450 does not authorize it to compel Defendant to produce former employees. Plaintiff does not contest this point in the reply.

However, Plaintiff argues that under Rule 4.2 of the California Rules of Professional Conduct, Plaintiff’s counsel is prohibited from directly or indirectly communicating with former Good Guard employees if they are represented by Mr. Clough, unless he consents. Mr. Clough’s declaration does not affirm that he does not represent these former employees, nor does it authorize Plaintiff’s counsel to investigate them.

The court disagrees. Once Mr. Clough informed Plaintiff that Lubowa and Knighton are former employees and that he has had difficulty reaching them, the burden shifted to Plaintiff to determine whether they are represented by Mr. Clough. As the party seeking these depositions, Plaintiff bears the responsibility of ensuring compliance with professional conduct rules.

Furthermore, Rule 4.2 prohibits direct or indirect communication with represented individuals absent consent, but it does not presume representation. Plaintiff must take reasonable steps to ascertain whether these witnesses are, in fact, represented by Mr. Clough before assuming any limitations on communication.

Plaintiff must conduct due diligence to determine the witnesses’ representation status and secure their attendance through proper procedural mechanisms, such as subpoenas under CCP § 1987.1.

Even if the Court accepts Plaintiff’s argument based on Rule 4.2, CCP § 2025.450 does not grant the Court the authority to compel Defendant to produce former employees for deposition. Accordingly, Plaintiff’s motion as to Knighton and Lubowa’s depositions are denied.

The Court will issue sanctions in the amount of $1,000 against Defendant for the PMK deposition. The Court finds that Defendant did not act with substantial justification. Furthermore, the rationale provided in counsel’s declaration was not communicated to Plaintiff before the deposition or the filing of this motion. Accordingly, the Court finds good cause to grant sanctions against Defendant and its counsel of record, jointly and severally, to compensate Plaintiff for the time and fees expended in bringing this motion.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.