Judge: Michael Shultz, Case: 23CMCV00833, Date: 2023-08-10 Tentative Ruling
Case Number: 23CMCV00833 Hearing Date: February 8, 2024 Dept: A
23CMCV00833
300 West Artesia, L.P. v. B&O Express, Inc., et al.
[TENTATIVE] ORDER GRANTING
MOTION BY DEFENDANT, JUPITER WAREHOUSE AND DISTRIBUTION, INC., TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT DEPOSITION
I.
BACKGROUND
The
complaint for unlawful detainer arises from the alleged breach of a 2019
written, commercial lease agreement for a five-year term between Plaintiff (lessor)
and Defendants, B&O Express (“B&O”) and Jupiter Warehouse and
Distribution (“Jupiter”). Plaintiff served a three-day notice to pay rent or
quit. Plaintiff alleges Defendants remained in possession after failing to
comply with its payment obligations under the lease. The complaint alleges claims for (1)
nonpayment of rent, (2) nonpayment of common area expenses (“CAM”), (3)
nonpayment of late charges, and (4) failure to vacate the premises.
The
clerk entered default against B&O on July 20, 2023. Jupiter filed its amended
answer on November 13, 2023.
II.
ARGUMENTS
Defendant
Jupiter moves to compel
Plaintiff to produce a person most qualified (“PMQ”) to testify at deposition
on 22 topics of examination. Plaintiff’s counsel produced a witness, Fiona
Wang, but objected to the questions raised, instructed the witness not to
answer, unilaterally limited the testimony, and refused to produce documents as
requested. Jupiter argues that the categories of inquiry and production are
relevant to Jupiter’s defense of waiver and/or estoppel and that Plaintiff
failed to obtain a certificate of occupancy (“COO”) resulting in Plaintiff’s
breach of the lease agreement.
In opposition, Plaintiff argues Jupiter’s motion
is without merit, and Jupiter failed to meet and confer. At deposition,
Plaintiff instructed Ms. Wang not to answer two questions only, which Plaintiff
subsequently allowed the witness to answer. Jupiter failed to ask any questions about
subjects that it now claims were relevant, such as the issue of whether
Plaintiff consented to the tenant, B&O’s, change of control. Jupiter failed
to follow up on the latter issue. Plaintiff also argues the document requests
are irrelevant, including documents relating to Plaintiff’s compliance with the
American Disabilities Act (“ADA”). Plaintiff produced a Certificate after April
11, 2023; therefore, the COO is irrelevant as the action pertains to failure to
pay rent after that period.
In reply, Jupiter argues that the issue of
change in control remains relevant as communication on that issue occurred in
2021. The witness had no knowledge of this. Notwithstanding Plaintiff’s
assertions that it complied with the ADA; Jupiter is entitled to discover the
circumstances under which that compliance occurred. Whether or not Jupiter is
entitled to an offset is not a basis for determining discoverability.
III.
LEGAL
STANDARDS
If a party fails to appear for a
deposition after service of a deposition notice, without having served a valid
objection, the party giving notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any
document or tangible thing described in the notice. (Code Civ. Proc., § 2025.450.) The moving party must show good cause
for the deposition and attempt to meet and confer. (Id.)
The
scope of discovery is liberally construed to permit “disclosure 0as a matter of
right unless statutory or public policy considerations clearly prohibit
it.” (Greyhound
Corp. v. Superior Court In and For Merced County
(1961) 56 Cal.2d 355, 378.) Admissibility is not the test; the
issue is discoverable if it is reasonably likely to lead to the discovery of
admissible evidence. (Code
Civ. Proc., § 2017.010.) Discovery of an issue is relevant
if the issue relates to a party’s claims or defenses. (Id.)
IV.
DISCUSSION
The
complaint alleges that Jupiter breached the lease agreement in several respects
and failed to vacate the premises. (Complaint.)
More specifically, the fourth cause of action alleges that Jupiter is required
to vacate the premises because Jupiter breached the provision prohibiting
assignment, transfer, or sublet of Jupiter’s interests without Plaintiff’s
consent. (Complaint
¶ 24.) The lease provides that a “change in the
control of Lessee shall constitute an assignment requiring consent.” (Complaint
¶ 24.)
A. Change
in Control of B&O
The
issue of B&O’s change in control is relevant and discoverable as it is
material to Plaintiff’s complaint. Additionally, Plaintiff raised this issue as
a basis for Plaintiff’s motion for summary judgment/adjudication. The Court
continued the hearing to permit Jupiter to discover facts essential to its
opposition to the motion. (Min.
Ord. 1/11/24.) However, the witness, Ms. Wang, had only
limited knowledge of this (or any) issue. (Michael York Decl., Ex. C,
23:7-30:10.) Plaintiff is required to produce a witness “most knowledgeable” on
this issue, not “generally knowledgeable” of the categories of inquiry. (Opposing
Sep. Stmt. 2:24-25.)
The
complaint arises in part from Jupiter’s alleged non-payment of rent during
April and May of 2023. (Complaint, ¶10.) However, Jupiter’s inquiry concerning
rent payments prior to that time is relevant to Jupiter’s second affirmative
defense. (Amended Answer, 3:19-26.) Jupiter asserts that the fourth cause of
action is barred by waiver and estoppel because at the time Jupiter was in
arrears in 2021, Plaintiff was aware that an investment was being made in Defendant
and (theoretically) precludes Plaintiff from asserting failure to pay rent. (Id.; Wind Dancer Production Group v. Walt
Disney Pictures
(2017) 10 Cal.App.5th 56, 78 [“Notwithstanding
a provision in a written agreement that precludes oral modification, the
parties may, by their words or conduct, waive contractual rights.”].)
Contrary to Plaintiff’s argument, the
circumstances of any oral communication prior to 2023 are relevant to Jupiter’s
defense and may controvert the issues raised in Plaintiff’s motion for summary
judgment/adjudication. (Wind Dancer at 78 [“’Parties may, by their
conduct, waive a no oral modification provision where evidence shows that was
their intent. The pivotal issue in a claim of waiver is the intention of the
party who allegedly relinquished the known legal right.”].)
These
communications are relevant and discoverable. Plaintiff’s counsel, however, objected to the inquiry at length, preventing
Jupiter from inquiring without argument from counsel. Plaintiff cannot obstruct
valid discovery or otherwise limit the scope of inquiry. Plaintiff’s remedy is
to move for a protective order. (Def.’s Ex. C, 21:15-18.). Additionally, Ms.
Wang had no personal knowledge of such communications. Rather, Plaintiff’s
counsel improperly attempted to direct defense counsel’s manner of inquiry by requiring
that defense counsel first show the witness the communications at issue. (Ex.
C, 22:22-23:5.) Jupiter was attempting to discover the facts surrounding
the pre-2023 arrearages but was prevented by Plaintiff’s counsel’s conduct.
The
conduct was obstreperous and interrupted Jupiter’s ability to conduct its own deposition,
regardless of Plaintiff’s belief that the scope of inquiry was irrelevant. (Stewart
v. Colonial Western Agency, Inc. (2001) 87
Cal.App.4th 1006, 1014 [“Irrelevance alone is an
insufficient ground to justify preventing a witness from answering a question
posed at a deposition.”].) Finally, Plaintiff’s counsel admitted that it
produced the witness to testify only about the 2023 arrearages, as it unilaterally
determined that pre-2023 arrearages were irrelevant. (Ex. C, 28:4-12.). Jupiter
is entitled to a qualified witness with personal knowledge of pre-2023
arrearages, any communications in connection therewith, the circumstances
surrounding that non-payment of rent from a person with personal knowledge,
including the production of documents responsive thereto.
B. Plaintiff’s
failure to comply with provisions of the ADA
Jupiter
contends that Plaintiff breached the contract by failing to comply with ADA
requirements and failing to obtain a COO as required by the lease. Jupiter asserts that the COO was a condition
precedent to Jupiter’s performance. (Civil Code § 1439.) The determination of the
validity of this defense (which Plaintiff disputes) requires Jupiter to
establish a factual context for its application. Jupiter is entitled to obtain information
reasonably calculated to the discovery of admissible evidence. (Stewart
v. Colonial Western Agency, Inc. (2001) 87
Cal.App.4th 1006, 1013 [“and (contrary to popular belief),
fishing expeditions are permissible in some cases.”
Although
Plaintiff represents that Plaintiff did obtain a Certificate of Occupancy, this
is an issue of fact, the circumstances about which Jupiter is entitled to
inquire and to obtain any documents pertaining to this defense. Plaintiff is
required to produce a person most knowledgeable about this issue and provide
documents responsive to Defendant’s request.
III. CONCLUSION