Judge Peter A. Hernandez, Case BC666545 2022-08-23 Tentative Ruling

Plaintiffs David Penilla (“David”) and Maria Penilla (“Maria”) (collectively, “The Penillas”) allege as follows: The Penillas own a mobilehome manufactured by CMH Manufacturing West, Inc. dba Golden West Homes (sued as Golden West Homes) (“CMH”) from Superior Manufactured Housing, Inc. (sued as Superior Manufacturing Housing Inc.) (“Superior”), a mobilehome dealer. In September 2016, there was a “sewage/water flow spillage” event that was caused by faulty plumbing which damaged the mobilehome.

On June 27, 2017, The Penillas filed a complaint, asserting a cause of action against CMH, Superior and Does 1-10 for:

On September 14, 2021, the court granted Superior’s Motion for Summary Judgment. On December 7, 2021, judgment was filed.

The Final Status Conference is set for October 25, 2022. Trial is set for November 15, 2022.

CMH moves the court for an order compelling the depositions for third-party witnesses Chris and Linda Abeyta, Juan and Teresilda Verduzco and So-Cal Manufacturing, Inv. (“So-Cal”). CMH seeks a scheduling order for in-person depositions with COVID precautions absent a showing of medical necessity, to be completed before August 31, 2022. CMH also seeks sanctions against Plaintiff and her counsel Steven H. Haney (“Haney”) and a protective order to stop Haney’s alleged harassment.

The court declines to rule on CMH’s evidentiary objections as unnecessary to the disposition of the instant motion.

The proof of service accompanying the instant motion fails to reflect service on non-party So-Cal; accordingly, the motion is summarily denied without prejudice as to So-Cal.

At the outset, the court declines any requests by Plaintiffs for blanket scheduling orders “for all witnesses under subpoena to be deposed before August 31, 2022, in live depositions unless a medical necessity is shown” (Motion, 9:25-10:1; see also, 9:21-22.) The court’s following analysis pertains only to the scheduling of depositions of the following persons: Chris Abeyta, Linda Abeyta, Juan Verduzco and Teresilda Verduzco.

Plaintiffs’ counsel Kenneth W. Baisch (“Baisch”) attests that his firm represents the aforesaid individuals. (Baisch Decl., ¶ 1.)[1] The papers filed by the parties reflect that CMH initially noticed the depositions of the aforesaid individuals for in-person attendance. (Lam Decl., ¶ 10, Exh. 6.) On May 18, 2022, CMH subsequently noticed Linda Abeyta’s and Chris Abeyta’s depositions for May 26, 2022 via Zoom and Teresilda Verduzco’s and Juan Verduzco’s depositions for June 14, 2022 via Zoom. (Id.)

On May 27, 2022, CMH rescheduled Linda Abeyta’s and Chris Abeyta’s depositions for in-person attendance on June 3, 2022 and Teresilda Verduzco’s and Juan Verduzco’s deposition for in-person attendance on June 14, 2022. (Id.) At some point, Plaintiffs’ counsel apparently objected to the in-person attendance component, which CMH’s counsel received June 1, 2022. (Baisch Decl., ¶ 7, Exhs. 14 and 15.) On June 1, 2022, CMH’s counsel Judy Lam (“Lam”) advised Plaintiffs’ counsel, in relevant part, as follows:

We will proceed with the depositions of the Abeytas on Friday at 11 :00 am, as offered by your office. Mrs. Abeyta will be deposed first, while Mr. Abeyta waits in another area. . . I provided the Covid-19 protections we deploy at our offices, to be sure everyone remains safe. In addition, I'm offering the attached outdoor location at my building - we can reserve it if you confirm you will accept this location by 6pm tonight. If you have a doctor's note that specifies the witnesses must stay at home, please provide it.
We received a set of objections today, which are late, but which contain only one objection to an indoor location - this is addressed by the outdoor option. Please notify the Abeytas and Verduzcos they will have to appear to risk a nonappearance. The depositions of the Verduzcos will proceed as agreed on Jun 14 at my office subject to the same precautions, and we will reserve the outdoor location upon your confirmation at least 48 hours beforehand.

That day, Plaintiffs’ counsel Steven Haney (“Haney”) advised Lam that “our clients and we will not appear in person . . . Re-schedule the depositions remotely and they can proceed. Otherwise we will not attend.” (Id.) Counsel exchanged several more communications on June 1, 2022 and June 2, 2022, during which time Haney indicated that the depositions would not proceed unless they were conducted remotely. (Id.) On June 3, 2022, CMH took a “Certificate of Nonappearance” after Linda Abeyta and Chris Abeyta failed to appear. (Id., ¶ 10, Exh. 8.) On June 14, 2022, CMH took a “Certificate of Nonappearance” after Teresilda Verduzco and Juan Verduzco failed to appear. (Id.) Counsel thereafter unsuccessfully attempted to meet and confer.

The above record reflects that the aforesaid individuals have not refused to appear for their respective depositions; rather, they are requesting that they be able to appear remotely at same. The aforesaid individuals are not parties to the lawsuit; further, while they have been generically identified as having previously “sued for sewer backup damage and recovered,” both Linda Abeyta and Juan Verduzco have attested that they could not find an expert to confirm that the backup was the fault of the park and that the subsequent settlement did not include compensation for that claim. It is unclear to the court why the depositions of the aforesaid individuals may not proceed remotely under the circumstances (particularly with respect to Chris Abeyta); indeed, CMH’s counsel previously noticed their respective depositions to occur remotely.

The court will hear further from the parties at the time of the hearing; however, counsel are instructed to come prepared to the hearing with firm dates wherein the aforesaid individuals may be deposed remotely within the next 20 days. The court declines the reciprocal requests for sanctions. The court will address the request for protective order at the time of the hearing.

[1] The court notes that Plaintiffs’ counsel’s firm represented the aforementioned third parties in connection with a Motion to Quash previously filed in this action on August 4, 2021 and denied on November 4, 2021.