Judge: Stephen P. Pfahler, Case: 19STCV01865, Date: 2022-07-26 Tentative Ruling

Case Number: 19STCV01865    Hearing Date: July 26, 2022    Dept: F49

Dept. F-49

Date: 7-26-22

Case # 19STCV01865

Trial Date: 1-30-23 c/f 5-23-22

DEPOSITION

MOVING PARTY: Defendant/Cross-Complainant, City of Santa Clarita

RESPONDING PARTY: Plaintiff, Manuel Santana

RELIEF REQUESTED

Motion to Compel the Deposition of Miguel Santana

SUMMARY OF ACTION

On an unspecified date in 1989, Plaintiff Manuel Santana purchased certain property at 24522 Spruce Street in Santa Clarita. The property is identified as “The Historical Jailhouse,” a 1906 constructed facility representing the first jailhouse for the Santa Clarita Valley. Following the purchase, Santana created The Manuel Santana Family Trust of 1992.

According to Plaintiffs, the City of Santa Clarita recognized the “historical significance” of the structure by the structure on December 6, 2007, thereby rendering it immune from demolition or alteration. Prior, concurrent or following the historical designation, in 2007, the City of Santa Clarita also unveiled its plan to construct a new library “directly adjacent” to “The Historical Jailhouse.” The City purchased all surrounding properties, and offered Plaintiffs $300,000 for the property as well. Plaintiffs rejected the offer.

Project planning and construction began in 2009. A third party identified as Seward was designated as the entity responsible “to oversee protection of the site.” According to Plaintiffs, the parties responsible for the development of the site failed to adhere to the “Seward Plan,” thereby allowing “hazardous substances and water moisture to emanate inside the building.”

Plaintiffs allege that the parties agreed to a five-year statute of limitations for the filing of a claim from March 22, 2013. Notwithstanding the 2013, Plaintiffs allege the timely filing of their administrative claim on March 19, 2019 [First Amend. Compl., ¶¶ 33-34]. The claim was rejected by the City of Santa Clarita.

On January 18, 2019 and May 29, 2019, Plaintiffs filed a complaint and first amended complaint for Negligence, Gross Negligence, Strict Liability, Absolute Liability, Trespass, Nuisance, Unjust Enrichment, and Battery. On August 29, 2019, the action was transferred to Department 49 from Department 4A. On September 11, 2019, the court granted the ex parte motion dismissing the claims for attorney fees and punitive damages against the City of Santa Clarita, and extended the time for the filing of a responsive pleading.

On October 15, 2019, City of Santa Clarita answered and filed its cross-complaint for Breach of Contract, Contractual Indemnity, Equitable Indemnity, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6. City of Santa Clarita named R.C. Becker and Son, Inc. Tobo Construction, Inc., Mt. Hawley Insurance Co., and Landmark American Ins. Co. The insurance defendants are only named in the third, fourth, sixth, seventh and eight causes of action for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6.

City of Santa Clarita specifically alleges that defendant contractors R.C. Becker and Son, Inc. and Tobo Construction, Inc. entered into “Redevelopment Agency Agreement for Capital Improvement Project” agreements. Article V and VIII requires cross-defendants indemnify the City of Santa Clarita against any all claims arising from the project, and require the procurement of an insurance policy designating City of Santa Clarita as an additional insured. On June 1, 2010, Cross-Defendant Ironshore Insurance Co. issued a Certificate of Liability Insurance for R.C. Becker. On December 24, 2010, Cross-Defendant Mt. Hawley Ins. Co. issued a Certificate of Liability Insurance for its insured, Tobo Construction, Inc. On June 17, 2011, Cross-Defendant Landmark Ins. Co. issued a Certificate of Liability Insurance for Tobo Construction, Inc. Defendant Valley Forge Insurance Company is an alleged insurer of R.C. Becker.[1]

On March 12, 2019, City of Santa Clarita tendered its indemnity claim and/or defenses to the cross-defendant contractors. On August 28, 2019, Mt. Hawley Ins. Co. denied the claim. On December 19, 2019, Valley Forge denied the claim. R.C. Becker and Son, Inc. provided no response.

Landmark American Ins. Co. answered the cross-complaint on December 3, 2019.

On July 2, 2020, City of Santa Clarita filed its first amended cross-complaint Breach of Contract, Contractual Indemnity, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Equitable Indemnity, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6.

On January 13, 2021, R.C. Becker and Son, Inc. answered the first amended cross-complaint from City of Santa Clarita, and filed a cross-complaint for Implied Indemnity, Comparative Indemnity, Contribution, and Declaratory Relief on January 15, 2021. On February 3, 2021, the court overruled the demurrer of Landmark American Insurance Company to the Cross-Complaint of City of Santa Clarita. On March 5, 2021, Tobo Construction, Inc. answered the City of Santa Clarita cross-complaint, and filed a cross-complaint for Express Indemnity, Equitable Indemnity, Contribution, and Declaratory Relief.

RULING: Granted.

Evidentiary Objections: Overruled.

Defendant/Cross-Complainant City of Santa Clarita moves to compel the deposition of plaintiff Manuel Santana. Defendant contends Plaintiff agreed to appear on three separate occasions for deposition, but continues to cancel agreed upon dates. After the last scheduled deposition for May 5, 2022, Plaintiff cancelled the day before the scheduled deposition date, and failed to provide alternative dates after the cancellation. [Declaration of Gina Giovacchini.]

Plaintiff in opposition contends that the March 26, 2022 death of prior counsel required Plaintiff to secure new counsel. Attorney Stephen Wegman, former partner with deceased counsel, appearing on behalf of Plaintiff, represents that Plaintiff will be seeking new counsel. Mr. Wegman denies any handling of the case and cannot represent Plaintiff in the deposition pending the substitution of new counsel.

City of Santa Clarita in reply requests a court order to compel the deposition in order to compel an appearance.

Cross-Defendant, R.C. Becker and Son, Inc. also filed a motion to compel the deposition of Manuel Santana. Although the caption of the motion lists a July 26, 2022 hearing date, the court electronic filing system actually shows the reservation for August 23, 2022. The motion of Cross-Defendant, R.C. Becker and Son, Inc. is therefore NOT considered.[2]

A party may file a motion to compel deposition upon a non-appearance of the noticed party. “If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410 fails to appear for examination, or to proceed with it … the party giving the notice may move for an order compelling the deponent's attendance and testimony…” (Code Civ. Proc., §2025.450, subd. (a).) A party must object to a deposition no less than three calendar days before deposition date. (Code Civ. Proc., §2025.410, subd. (b).)

The motion incorporates a declaration regarding both the necessity of taking Plaintiff’s deposition and meet and confer efforts to reschedule the deposition after the non-timely cancellation. [Giovacchini Decl.] (Code Civ. Proc., §2025.450, subd. (b).) The motion therefore complies with all procedural requirements.

The necessity of Plaintiff’s deposition, multiple prior date adjustments, and untimely cancellation of the last scheduled agreed upon date, justifies the granting of the motion to compel the deposition of Manuel Santana. The court also acknowledges the death of prior counsel on March 26, 2022, the lack of counsel familiar with the action, and the necessity for the substitution of new counsel.

Nevertheless, the motion comes before the court approximately four months following the death of counsel. The court declines to provide an open-ended timeline to allow counsel time to secure new counsel. The Wegman firm either remains counsel of record, or Mr. Wegman improperly appears on behalf of Plaintiff. To the extent the Wegman firm “appears” on behalf of Plaintiff, and continues to deny the ability to represent Plaintiff in deposition, and additionally declines to represent Plaintiff, the firm may file a motion to be relieved as counsel. Otherwise, the Wegman remains obliged to represent Plaintiff. If the Wegman firm denies any representation, and seeks withdrawal, Plaintiff still remains responsible for complying with the order.

The court therefore orders the parties to meet and confer regarding the setting of deposition date within 45 days of this order. Plaintiff is obliged to let all parties know of any new counsel, or may continue in pro per if and when the Wegman firm successfully withdraws.[3] The court acknowledges the necessity of potentially allowing new counsel to become familiar with the file, but again will not provide an open ended period for Plaintiff to secure new counsel after four months have already passed, and given the efforts to schedule the subject deposition for several months already.

The parties may decide on an in-person or remote method, if any party is concerned with Covid exposure. The deposition is to take place within the next 60 days unless the parties agree to an extension of time. If Plaintiff refuses to cooperate in the setting of a date within 45 days of this order, City of Santa Clarita may unilaterally pick a date. If Plaintiff fails to appear for either the agreed upon date or unilaterally selected date, City of Santa Clarita may take a notice of non-appearance and present this as part of a motion for evidentiary, issue or even terminating sanctions against Plaintiff. (Code Civ. Proc., §2025.450, subd. (h).)

The parties may also agree upon including Cross-Defendant, R.C. Becker and Son, Inc., and/or any other parties to the deposition as well, but are under no obligation to conduct a single deposition in order to allow the participation of the other parties at one time.

City of Santa presents no request for sanctions at this time.

The motion of Cross-Defendant, R.C. Becker and Son, Inc. remains set for August 23, 2022, with multiple motions for summary judgment current set to begin on September 20, 2022.

City of Santa Clarita to give notice to all parties.