Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2023-01-03 Tentative Ruling
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Case Number: 19STCV45653 Hearing Date: January 3, 2023 Dept: 34
SUBJECT: Motion to Compel Deposition of Person
Most Qualified for Defendant BLK Properties, LLC
Moving Party: Plaintiffs Nicole Abramson and Douglas Stork
Resp. Party: Defendant
BLK Properties, LLC
SUBJECT: Motion to Compel Deposition of Person
Most Qualified for Defendant Marine View Management, Inc.
Moving Party: Plaintiffs Nicole Abramson and Douglas Stork
Resp. Party: Defendant
Marine View Management, Inc.
Plaintiffs’ Motions are DENIED. The Parties’
respective Requests for Sanctions are DENIED.
BACKGROUND:
On December 17, 2019, Plaintiffs Nicole
Abramson and Douglas Stork filed their Complaint against Defendants Anita
Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of
action for breach of implied warranty of habitability, negligence, and breach
of contract. This case regards damages Plaintiffs allege to have suffered and
continue to suffer due to the mold in their home.
On April 6, 2021, Plaintiffs filed their First
Amended Complaint.
On June 8, 2021, Defendants filed their Answer
to the First Amended Complaint.
On December 6, 2022, Plaintiffs filed: (1)
Motion to Compel Deposition of Person Most Qualified for Defendant BLK
Properties, LLC; and (2) Motion to Compel Deposition of Person Most Qualified
for Defendant Marine View Management, Inc. The Motions included Requests for
Sanctions against Defendants and their Counsel. Plaintiffs concurrently filed a
Separate Statement for each of the Motions.
On December 19, 2022, Defendants BLK
Properties, LLC and Marine View Management, Inc. filed their respective
Oppositions, which included Requests for Sanctions against Plaintiffs and
Plaintiffs’ Counsel. These Defendants each concurrently filed: (1) Declaration
from Defendants’ Counsel, Susan Gruskin; and (2) Opposition to Plaintiffs’
Separate Statement.
ANALYSIS:
I.
Legal Standard
Any party may obtain discovery,
subject to restrictions, by taking the oral deposition of any person, including
any party to the action. (Code Civ. Proc., § 2025.010.) A properly
served deposition notice is effective to require a party or party-affiliated
deponent to attend and to testify, as well as to produce documents for
inspection and copying. (Code Civ. Proc., § 2025.280, subd.
(a).)
“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.)
“If, after service of a deposition
notice, a party . . . fails to appear for examination, or to proceed with it,
or to produce for inspection any document . . . described in the deposition
notice, the party giving notice may move for an order compelling deponent’s
attendance and testimony, and the production . . . of any document . . .
described in the deposition notice.” (Code Civ. Proc., § 2025.450,
subd. (a).)
The motion must set forth both
facts showing good cause justifying the demand for any documents and a meet and
confer declaration. (Code Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)
“Implicit in the requirement that counsel contact the deponent to inquire
about the nonappearance is a requirement that counsel listen to the reasons
offered and make a good faith attempt to resolve the issue,” including by
rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86
Cal.App.4th 1109, 1124.)
II.
Discussion
A. Meet and Confer
The Parties disagree about whether the meet and
confer requirement is met here. Plaintiffs attach nearly a dozen emails between
the Parties’ Counsel from prior to the Motions’ filing and more than two dozen
emails from after the Motions’ filing. (Motion to Compel re Marine View
Management, Inc., Exs. 5–6; Reply re Marine View Management, Inc., Exs. 1–2.)
The Court finds that the meet and confer requirement is met here.
B. The Depositions and Associated Requests
for Production
Plaintiffs move the Court to issue
orders compelling Defendants BLK Properties, LLC and Marine View Management,
Inc. to produce their respective persons most knowledgeable for one deposition
each. (Motion to Compel re BLK Properties, LLC, pp. 2:3–11; Motion to Compel
re Marine View Management, Inc., pp. 2:3–11.)
Defendants have identified the
persons most qualified as Defendant Anita Kovacic for Defendant BLK Properties,
LLC and Non-Party Eileen Juarez for Defendant Marine View Management, Inc.
(Motion to Compel re Marine View Management, Inc., Ex. 5, p. 1.)
1.
Categories
for Deposition Testimony
Plaintiffs move the Court to allow
them to depose the persons most qualified as to the following categories of
information. The categories are identical for both persons most qualified.
CATEGORY
NO. 1:
Any
and all inspections performed at the property located at the SUBJECT PREMISES
including to common areas, from the years 2012 to the present. (The term
“SUBJECT PREMISES” means and refers to the real property located at 924
Main Street, in El Segundo, California 90245).
CATEGORY
NO. 2:
Any
and all maintenance performed at the SUBJECT PREMISES, including to common
areas, from the years 2012 to the present.
CATEGORY
NO. 3:
Any
and all repairs and/or remediations performed at the SUBJECT PREMISES,
including to common areas, from the years 2012 to the present.
CATEGORY
NO. 4:
Any
and all inspections performed at Apartment E of SUBJECT PREMISES, including to
common areas, from the years 2012 to the present.
CATEGORY
NO. 5:
Any
and all maintenance performed at Apartment E of SUBJECT PREMISES, including to
common areas, from the years 2012 to the present.
CATEGORY
NO. 6:
Any
and all repairs and/or remediations performed at Apartment E of SUBJECT
PREMISES, including to common areas, from the years 2012 to the present.
CATEGORY
NO. 7:
The
IDENTITY of all owners of the SUBJECT PREMISES. (The term “IDENTITY,” means in
the case of a natural person, his or her name, business address and telephone
number, employer, and title or position; in the case of a person other than a
natural person, its name, the address of its principal place of business
(including zip code), its telephone number, and the name of its chief executive
officer, as well as, if it has a person other than a natural person that
ultimately controls it, that other person's name, the address of that person's
principal place of business (including zip code), that other person's telephone
number, and the name of that other person's chief executive officer.)
CATEGORY
NO. 8:
All
leases for any unit occupied by Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK at
the SUBJECT PREMISES.
CATEGORY
NO. 9:
The
IDENTITY of PERSONS hired to provide maintenance services at the SUBJECT
PREMISES in the last ten years. (The term “PERSON” or “PERSONS” shall mean and
refer to any individual, corporation, association, partnership, joint venture
or other legal entity.)
CATEGORY
NO. 10:
Management
of the SUBJECT PREMISES.
CATEGORY
NO. 11:
Management
of Apartment E of the SUBJECT PREMISES
CATEGORY
NO. 12:
Mold
complaints made by Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK REFERING OR
RELATING TO the SUBJECT PREMISES, from the years 2010 to the present. (The
phrase “REFER OR RELATE” and “REFERRING OR RELATING TO” when used with
reference to any particular subject matter means to embody, pertain to,
consist, constitute, contain, reflect, IDENTIFY, state, REFER OR RELATE TO,
deal with, compromise, discuss, summarize, describe or be in any way pertinent
to that subject matter.)
CATEGORY
NO. 13:
Mold
complaints made by anyone REFERING OR RELATING TO the SUBJECT PREMISES from the
years 2010 to the present.
CATEGORY
NO. 14:
Plumbing
repairs required at the SUBJECT PREMISES from the years 2010 to the present.
CATEGORY
NO. 15:
Water
damage repairs required at the SUBJECT PREMISES from the years 2012 to the
present.
CATEGORY
NO. 16:
Water
leak repairs required at the SUBJECT PREMISES from the years 2012 to the
present.
CATEGORY
NO. 17:
The
IDENTITY of vendors hired to inspect the common areas of the SUBJECT PREMISES
from the years 2012 to the present.
CATEGORY
NO. 18:
The
IDENTITY of vendors hired to repair the common areas of the SUBJECT PREMISES
from the years 2012 to the present.
CATEGORY
NO. 19:
The
IDENTITY of vendors hired to inspect Apartment E of SUBJECT PREMISES from the
years 2012 to the present.
CATEGORY
NO. 20:
The
IDENTITY of vendors hired to repair Apartment E of SUBJECT PREMISES from the
years 2012 to the present.
CATEGORY
NO. 21:
The
IDENTITY of all vendors hired by DEFENDANT to inspect, maintain, repair, and/or
remediate the plumbing at the SUBJECT PREMISES from the years 2012 to the
present. (The term “DEFENDANT” means and refers to MARINE VIEW MANAGEMENT,
INC.)
CATEGORY
NO. 22:
The
IDENTITY of all vendors hired by DEFENDANT to inspect, maintain, repair, and/or
remediate water damage at the SUBJECT PREMISES from the years 2012 to the
present.
CATEGORY
NO. 23:
The
IDENTITY of all vendors hired by DEFENDANT to inspect, maintain, repair, and/or
remediate mold at the SUBJECT PREMISES from the years 2012 to the present.
CATEGORY
NO. 24:
DEFENDANT’s
policies and procedures REFERRING OR RELATING TO the prevention and/or protection
against HABITABILITY ISSUES from developing at the SUBJECT PREMISES. (The
phrase “REFER OR RELATE” and “REFERRING OR RELATING TO” when used with
reference to any particular subject matter means to embody, pertain to,
consist, constitute, contain, reflect, IDENTIFY, state, REFER OR RELATE TO,
deal with, compromise, discuss, summarize, describe or be in any way pertinent
to that subject matter.)
CATEGORY
NO. 25:
DEFENDANT’s
policies and procedures REFERRING OR RELATING TO the prevention and/or protection
against mold infestations at the SUBJECT PREMISES.
CATEGORY
NO. 26:
DEFENDANT’s
policies and procedures REFERRING OR RELATING TO the prevention and/or
protection against water damage at the SUBJECT PREMISES.
CATEGORY
NO. 27:
DEFENDANT’s
policies and procedures REFERRING OR RELATING TO the plumbing at the SUBJECT
PREMISES.
CATEGORY
NO. 28:
COMMUNICATIONS
between DEFENDANT and PLAINTIFF. (The term “COMMUNICATIONS” means any contact
or transfer of information between any two people, whether written, oral or
electronic and whether direct or through one of more animate or inanimate
agents.)
CATEGORY
NO. 29:
COMMUNICATIONS
between DEFENDANT and vendors hired to inspect or repair the SUBJECT PREMISES
from the years 2012 to the present.
CATEGORY
NO. 30:
COMMUNICATIONS
between DEFENDANT and vendors hired to inspect or repair the SUBJECT PREMISES
from the years 2012 to the present.
CATEGORY
NO. 31:
COMMUNICATIONS
between DEFENDANT and vendors hired to inspect or repair the Apartment E of the
SUBJECT PREMISES from the years 2012 to the present.
CATEGORY
NO. 32:
COMMUNICATIONS
between Dave Gold regarding inspections performed in Apartment E of the SUBJECT
PREMISES from the years 2012 to the present.
CATEGORY
NO. 33:
The
manner in which bills for DEFENDANT are paid, and the preparation and
maintenance of the accounting books and records for the corporation.
CATEGORY
NO. 34:
The
nature and extent of the duties and responsibilities of any supervisors or
managing agents who worked on behalf of DEFENDANT with respect to the SUBJECT
PREMISES from the years 2012 to the present.
CATEGORY
NO. 35:
The
nature and extent of any insurance DEFENDANT may have for the claims which are
the subject of this action.
CATEGORY
NO. 36:
The
nature and extent of any complaints made by any tenant to any representative of
DEFENDANT concerning the conditions at the SUBJECT PREMISES.
CATEGORY
NO. 37:
The
identities, duties, and responsibilities of all of the members, officers,
directors, and managing agents of DEFENDANT, and their supervision of the
SUBJECT PREMISES.
CATEGORY
NO. 38:
DEFENDANT’S
claims and defenses in this action.
2.
Requests
for Production of Documents
Plaintiffs move the Court to compel
the persons most qualified to produce the following items. The requests for
production of documents are identical for both persons most qualified.
REQUEST
FOR PRODUCTION NO. 1:
ALL
non-privileged DOCUMENTS and/or materials from 2009 to present which pertain to
or reference the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 2:
ALL
DOCUMENTS that REFER or RELATE to COMMUNICATIONS between YOU and PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 3:
ALL
non-privileged DOCUMENTS and/or materials from 2009 to present which pertain to
or reference PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 4:
All
leases or rental agreements between YOU and PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 5:
ALL
non-privileged DOCUMENTS and/or materials from 2009 to present that were
generated by DEFENDANT and sent to Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK
about the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 6:
All
ledgers reflecting payments made by PLAINTIFF to YOU during his/her tenancy at
the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 7:
ALL
non-privileged DOCUMENTS and/or materials which pertain to or reference this
INCIDENT generated by DEFENDANT.
REQUEST
FOR PRODUCTION NO. 8:
ALL
DOCUMENTS reflecting any COMMUNICATION(S) between YOU and Plaintiffs NICOLE
ABRAMSON and DOUGLAS STORK during the past ten (10) years.
REQUEST
FOR PRODUCTION NO. 9:
ALL
witness statements pertaining to this INCIDENT.
REQUEST
FOR PRODUCTION NO. 10:
ALL
DOCUMENTS that REFER OR RELATE to any repairs, maintenance, corrective action,
remediation, or other work either YOU, YOUR employees, YOUR agents, or YOUR
contractors performed or attempted to perform on the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 11:
ALL
photographs of the SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 12:
ALL
DOCUMENTS reflecting tenant guidelines, regulations, policies, procedures or
rules provided to Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK by YOU.
REQUEST
FOR PRODUCTION NO. 13:
ALL
bids and estimates for repair, mold remediation, and/or re-build of the SUBJECT
PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 14:
ALL
DOCUMENTS that REFER OR RELATE to COMMUNICATION(S) between YOU and PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 15:
ALL
DOCUMENTS from 2009 to present RELATING TO special assessments which pertain to
the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 16:
ALL
DOCUMENTS that REFER OR RELATE to the condition of the SUBJECT PREMISES from
2009 to present.
REQUEST
FOR PRODUCTION NO. 17:
ALL
DOCUMENTS (including operation manuals) which describe how the SUBJECT PREMISES
is to be managed.
REQUEST
FOR PRODUCTION NO. 18:
Produce
ALL DOCUMENTS for ALL repairs made to SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 19:
ALL
DOCUMENTS from 2009 to present RELATING TO special assessments which pertain to
the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 20:
Any
log or other DOCUMENTS whereby YOU organize and track repair requests made by
PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 21:
ALL
insurance policies that may cover the claims of PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 22:
ALL
non-privileged DOCUMENTS REFERRING OR RELATING TO ALL COMPLAINTS made by
Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK to DEFENDANT for HABITABILITY
ISSUES within SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 23:
ALL
COMPLAINTS which REFER OR RELATE TO HABITABILITY ISSUES within SUBJECT PREMISES
made by Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK from 2009 to present.
REQUEST
FOR PRODUCTION NO. 24:
ALL
non-privileged COMMUNICATIONS between DEFENDANT’s employees, agents, or
contractors which REFER OR RELATE TO COMPLAINTS made by Plaintiffs NICOLE
ABRAMSON and DOUGLAS STORK to DEFENDANT for HABITABILITY ISSUES within SUBJECT
PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 25:
ALL
DOCUMENTS containing non-privileged COMMUNICATIONS between DEFENDANT’s
employees, agents, or contractors which REFER OR RELATE TO COMPLAINTS made by
Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK to DEFENDANT for HABITABILITY
ISSUES within SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 26:
ALL
non-privileged COMMUNICATIONS between DEFENDANT’s employees, agents, or
contractors which REFER OR RELATE TO work orders made for the SUBJECT PREMISES
from 2009 to present.
REQUEST
FOR PRODUCTION NO. 27:
ALL
work orders which DEFENDANT made in response to COMPLAINTS made by Plaintiffs
NICOLE ABRAMSON and DOUGLAS STORK for HABITABILITY ISSUES within SUBJECT
PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 28:
ALL
DOCUMENTS that REFER OR RELATE to SUBJECT INCIDENT where DEFENDANT, her agents,
employees, or contractors INSPECTED SUBJECT PREMISES for HABITABILITY ISSUES
from 2009 to present.
REQUEST
FOR PRODUCTION NO. 29:
ALL
notices given by DEFENDANT to Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK
which REFER OR RELATE TO HABITABILITY ISSUES within SUBJECT PREMISES from 2009
to present.
REQUEST
FOR PRODUCTION NO. 30:
ALL
TRAINING MANUALS that REFER OR RELATE to DEFENDANT’s HABITABILITY POLICIES from
2009 to present.
REQUEST
FOR PRODUCTION NO. 31:
ALL
non-privileged COMMUNICATIONS between DEFENDANT’s employees, agents, and/or
contractors which REFER OR RELATE TO the TRAINING MANUALS for DEFENDANT’s
HABITABILITY POLICIES for SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 32:
ALL
non-privileged reports taken on behalf of any party to this action which REFER
OR RELATE TO ALL INSPECTIONS of the SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 33:
ALL
non-privileged DOCUMENTS which REFER OR RELATE TO INSPECTIONS of SUBJECT
PREMISES in response to COMPLAINTS made by Plaintiffs NICOLE ABRAMSON and
DOUGLAS STORK for HABITABILITY ISSUES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 34:
ALL
DOCUMENTS that REFER OR RELATE to YOUR capacity as PLAINTIFFS’ landlord from
2009 to present.
REQUEST
FOR PRODUCTION NO. 35:
ALL
non-privileged COMMUNICATIONS between DEFENDANT and DEFENDANT’s employees,
agents, or contractors that REFER OR RELATE TO HABITABILITY ISSUES within
SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 36:
ALL
bids and estimates for the INSEPCTION of SUBJECT PREMISES from 2009 to present.
REQUEST
FOR PRODUCTION NO. 37:
ALL
DOCUMENTS showing that YOU made reasonable efforts to remedy any conditions
that Plaintiffs NICOLE ABRAMSON and DOUGLAS STORK told you were in need of
repair or maintenance in the SUBJECT PREMISES.
REQUEST
FOR PRODUCTION NO. 38:
ALL
photographs, videotapes, audio tapes, surveys, or other graphic representations
of information that REFER or RELATE to INSPECTION of SUBJECT PREMISES from 2009
to present.
REQUEST
FOR PRODUCTION NO. 39:
ALL
DOCUMENTS that reflect, REFER OR RELATE, any COMMUNICATION(S) between YOU and
any business, company, contractor, workman, agent, employee, repairman,
handyman, tradesman, or other worker RELATED TO the SUBJECT PREMISES from 2009
to present.
REQUEST
FOR PRODUCTION NO. 40:
ALL
DOCUMENTS within DEFENDANT’S control which REFER OR RELATE TO PLAINTIFF.
REQUEST
FOR PRODUCTION NO. 41:
Any
and all DOCUMENTS Deponent reviewed in preparation for this deposition.
C. Analysis
1. The Depositions
As seen above by the 41 requests for
production of documents, Plaintiffs are requesting a significant amount of
discovery at this late stage of the litigation.
Defendants’ argument in opposition to the
depositions is that Plaintiff is improperly requesting second depositions
because both of the persons most qualified (Defendant Anita Kovacic and
Non-Party Eileen Juarez) have already been deposed. (Opposition re BLK
Properties, LLC, p. 9:7–9; Opposition re Marine View Management, Inc., p. 9:10–12.)
Plaintiffs do not dispute that both the
persons most qualified have already been deposed. Rather, they argue that they
were already deposed in their individual capacity and that the Court should now
allow Plaintiffs to depose them in their capacity as representatives of
corporate Defendants. (Motion re BLK Properties, LLC, pp. 8:15–28, 9:1–24;
Motion re Marine View Management, Inc., pp. 8:15–28, 9:1–22.)
In its recent Minute Order regarding leave for
a further physical examination of Plaintiff Stork, the Court noted that “just
because the examining attorney forgot to ask certain questions in a deposition
does not mean there is good cause to take a second deposition.” (Minute Order
dated December 20, 2022, p. 5.)
The
Court does not agree with Plaintiffs’ argument that there is a significant
distinction here that would allow Plaintiffs the right to obtain second
depositions simply because the individuals deposed may play multiple roles.
If that were the case, individuals associated
with corporate entities would as a matter of course be subject to second
depositions in a vast variety of cases without good cause, which is clearly not
the intent of the Code of Civil Procedure. Plaintiffs have not cited any
section of the Code that would indicate otherwise.
The burden is on Plaintiffs to show good cause
for second depositions. Yet Plaintiffs have not alleged or argued anything that
would indicate to the Court that there is good cause here. For example,
Plaintiffs have not notified the Court: (1) whether Plaintiffs knew at the time
they took the depositions that Defendant Kovacic and Non-Party Juarez were
associated with the corporate Defendants; (2) whether new information arose
during or after the depositions that led Plaintiffs to need second depositions
from the Deponents in each of their roles as persons most qualified; or (3)
whether the questions asked or the requests for production are at all different
from what they have already asked or requested of the Deponents.
Without this information, the Court does not
have any indication before it that there would be good cause for leave for
second depositions of Defendant Kovacic and Non-Party Juarez.
Although not necessary for its decision, the
Court notes that most of the Requests for Production are impermissibly
overbroad, many Requests violate the privacy interests of other tenants, and a
few Requests are entirely irrelevant to the issues at hand. (See, e.g., Requests for Production Nos. 1–3,
5, 10–11, 14–16, 18–19, 26, 31–32, 34–35, and 38–39.
Plaintiffs’ Motions are DENIED.
D. Requests
for Sanctions
Each of the Parties’ involved with these
Motions request sanctions. The Court does not find that sanctions are
appropriate here. The Parties’ respective Requests for Sanctions are DENIED.
III.
Conclusion
Plaintiffs’ Motions are DENIED. The Parties’
respective Requests for Sanctions are DENIED.