Judge Teresa A. Beaudet, Case 19STCV42167 2023-04-20 Tentative Ruling

Plaintiff Kevin Keenan (“Keenan”) filed this action on November 22, 2019 against Defendants Peter Thiel (“Thiel”) and Lorien Sunset LLC (“Lorien Sunset”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) negligence, (2) nuisance, (3) trespass, (4) breach of contract, and (5) negligence per se.

On December 13, 2019, Lorien Sunset filed a Cross-Complaint against Keenan. On January 24, 2023, Lorien Sunset filed the operative Second Amended Cross-Complaint (“SACC”) against Keenan. The SACC asserts causes of action for (1) negligence, (2) private nuisance, (3) failure to provide lateral and subjacent support, and (4) declaratory relief.

On February 4, 2022, Keenan served a Notice of Taking Oral Deposition Via Remote Video on Thiel. (Ho Decl., ¶ 2, Ex. A.) Thiel’s deposition was noticed for March 31, 2022. (Ibid.) Keenan indicates that Thiel refused to appear for his deposition. (Ho Decl., ¶ 3.) Keenan’s counsel and Thiel’s counsel engaged in meet and confer efforts regarding Thiel’s refusal to appear for his deposition. (Ho Decl., ¶ 4, Ex. B.)

On October 25, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s October 25, 2022 minute order provides that “[t]he parties fulfilled their Informal Discovery Conference obligation.”[1]

Keenan now moves for an order compelling Thiel to appear and provide testimony at a deposition, and to pay $3,625 in sanctions. Thiel opposes.

Pursuant to Code of Civil Procedure section 2025.280, subdivision (a), “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

As set forth above, Keenan provides evidence that Thiel’s deposition was noticed for March 31, 2022, and that Thiel failed to appear for his deposition. (Ho Decl., ¶¶ 2-3, Ex. A.) Keenan asserts that good cause exists for the Court to issue an order compelling Thiel’s appearance for a deposition pursuant to Code of Civil Procedure section 2025.450.

Keenan notes that Thiel is named as a defendant in Keenan’s Complaint. In the Complaint, Keenan alleges that Lorien Sunset is a limited liability company formed by Thiel. (Compl., ¶ 4.) Lorien Sunset holds title to property at 8600 Metz Place (aka 8635 Metz Place and 8550 Hedges Place) in Los Angeles (the “Metz Property”). (Compl., ¶ 1.) In February 2019, a landslide emanating from the Metz Property buried a substantial portion of Keenan’s home at 1383 Miller Drive in Los Angeles (“Keenan’s Property”) up to the roofline. (Compl., ¶ 1.) Keenan alleges that Defendants have failed to stabilize the Metz Property such that the Metz Property remains a threat to health and safety of persons at Keenan’s Property. (Compl., ¶ 1.)

Keenan also asserts that “[i]n his verified discovery responses, Thiel showed that he has personal knowledge of facts and documents regarding the Slope’s failure…Thiel identified consultants and contractors that he communicated with regarding the hillside…described efforts that he made to stabilize the hillside…and agreed to produce documents regarding the same…Thus, Thiel should be deposed about the Metz Property and his efforts or lack thereof to maintain it…” (Mot at p 5:22-28 , citing Ho Decl., ¶ 5, Ex. C.)

As an initial matter, Thiel asserts in the opposition that Keenan’s motion is premature. Thiel notes that Keenan’s motion references Thiel’s failure to appear for his deposition on March 31, 2022. (Ho Decl., ¶¶ 2-3, Ex. A.) Thiel’s counsel indicates that on or about February 4, 2022, his office received deposition notices for, inter alia, Thiel, with Thiel’s deposition set for March 31, 2022. (Higgins Decl., ¶ 3.) The deposition notices were served by Keenan’s attorneys at Wesierski & Zurek LLP. (Ibid.) On or about February 28, 2022, Thiel’s counsel received an e-mail from Keenan’s counsel, Abe Salen at Wesierski & Zurek LLP, stating the depositions his office noticed needed to be rescheduled. (Higgins Decl., ¶ 5, Ex. 2.) Thiel’s counsel states that “[a]fter continuing Mr. Thiel’s deposition and taking it off calendar, Keenan’s counsel did not re-notice Mr. Thiel’s deposition or serve an amended deposition notice.” (Higgins Decl., ¶ 8.) Thiel contends that accordingly, “Keenan’s motion is premature because he seeks to compel Thiel to appear at a deposition that was never noticed.” (Opp’n at p. 11:17-18.)

In connection with the reply, Keenan provides the Declaration of Abe G. Salen, who states that his “office was retained…to defend…Keenan, from Lorien Sunset LLC’s Cross-Complaint,” and that his “office has not been retained to represent Keenan with respect to his Complaint against defendants Peter Thiel and Lorien Sunset LLC. Keenan’s personal counsel at Blum, Collins & Ho LLP represents him on his Complaint against Thiel and is co-counsel on the defense.” (Salen Decl., ¶ 2.) The Court notes that this evidence was provided for the first time in connection with the reply, and “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537.)

In any event, as noted in in the motion, a deposition notice was served on Thiel on February 4, 2022, and the parties met and conferred regarding the same. (Ho Decl., ¶¶ 2, 4, Exs. A-B.) Moreover, the parties participated in an IDC on October 25, 2022 concerning the dispute over Thiel’s deposition. (Ho Decl., ¶ 6.) As discussed, the Court’s October 25, 2022 minute order provides that “[t]he parties fulfilled their Informal Discovery Conference obligation.” The Court does not find that Thiel’s deposition was “never noticed,” or that the instant motion is premature.

Thiel also contends that his deposition is being sought for an improper purpose. Thiel cites to Los Angeles County Superior Court Appendix 3.A “Guidelines for Civility in Litigation,” which provide, inter alia, that “[d]epositions should be taken only where actually needed to ascertain facts or information or to perpetuate testimony. They should never be used as a means of harassment or to generate expense.” (Appendix 3.A, subd. (e)(1).)

Thiel contends that Keenan’s request to depose Thiel is designed to harass Thiel and generate unnecessary expense. In support of this assertion, Thiel indicates that on May 1, 2020, he served responses to Keenan’s Special Interrogatories, Set One. (Higgins Decl., ¶ 2, Ex. 1.) Thiel’s discovery responses contained a “Preliminary Statement” indicating, inter alia, that “Thiel does not have personal knowledge regarding the facts, documents, and information regarding the hillside failure at issue in this lawsuit, and is relying on his counsel’s and other authorized representatives’ investigation and knowledge to respond to the interrogatories seeking such information. Thus, the following responses are based upon the facts, documents, and information presently known and available to counsel and authorized representatives for Thiel…” (Higgins Decl., ¶ 2, Ex. 1, p. 2:8-13.) On March 28, 2023, Thiel served Further Supplemental Responses to Keenan’s Special Interrogatories, Set One, which contain similar language in the “Preliminary Statement.” (Higgins Decl., ¶ 11, Ex. 7.)

Keenan counters that “whether or not Thiel has personal knowledge is not the standard. Rather, his deposition is required if information sought may be relevant or likely to lead to the discovery of admissible evidence.” (Reply at p. 2:13-16, emphasis omitted.) Code of Civil Procedure section 2017.010 provides, inter alia, that “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

Keenan notes that Special Interrogatory No. 1 of his Special Interrogatories, Set One, to Thiel requests that Thiel “IDENTIFY (by name, address, and telephone number) each and every consultant or contractor YOU have communicated with regarding the HILLSIDE since YOU first contemplated the purchase of LORIEN SUNSET PROPERTY.” (Ho Decl., ¶ 5, Ex. C.) Thiel’s response identifies several consultant(s) and/or contractor(s). (Ibid.) In addition, Keenan’s Special Interrogatory No. 12 provides, “IDENTIFY (by name, address, and telephone number) all persons with knowledge of any and all changes, including, without limitation, construction, repaving, resurfacing, re-locating and reinforcing, YOU have performed or have caused to be performed on or to the road or adjacent to the road that runs along the HILLSIDE above the KEENAN PROPERTY (identified as the ‘Lorien Sunset Driveway’ in the first picture on page 4 of YOUR Cross-Complaint).” (Ibid.) Thiel’s response to Special Interrogatory No. 12 identifies multiple people. (Ibid.) Keenan thus asserts that Thiel cannot disclaim knowledge of the Metz Property’s condition or maintenance. Moreover, Keenan asserts that “if Thiel is relying on others, Plaintiff is entitled to know what, if anything, Thiel heard from all these ‘others’ and the extent to which they acted as his agents, eyes, and ears.” (Reply at p. 6:1-2.)

In the opposition, Thiel also indicates that on or about May 16, 2022, Keenan took Lorien Sunset’s PMQ deposition. (Graham Decl., ¶ 3.) Thiel’s counsel who defended the deposition on behalf of Lorien Sunset asserts that Keenan’s attorneys “did not ask any questions during the deposition regarding Mr. Thiel’s knowledge or involvement regarding the hillside failure at issue in the lawsuit.” (Graham Decl., ¶ 3.) Thiel contends that “[i]f Keenan really believed Thiel was a percipient witness regarding the hillside failure, he would have asked Lorien Sunset’s PMQ about his involvement at the deposition.” (Opp’n at p. 12:26-28.) In the reply, Keenan contends that “[t]o the contrary, Keenan’s counsel asked questions about Thiel, but Thiel’s counsel, who also represented Dyke during the PMQ deposition, instructed Dyke not to answer the questions on the ground that his answers were either barred by an NDA that Dyke signed at Thiel’s behest, or by attorney-client privilege.” (Reply at p. 6:9-12.)

Thiel also asserts that “[t]his action has been pending since 2019, and only now, on the eve of the discovery cutoff, has Keenan filed a motion to compel Thiel’s deposition.” (Opp’n at p. 13:4-5.) In addition, Thiel asserts that Keenan is aware that Lorien Sunset, not Thiel, is the owner of the “Lorien Sunset Property.” Thiel cites to paragraph 2 of the SACC, which alleges that “Lorien Sunset LLC (‘Lorien Sunset’) is a limited liability company formed under the laws of the state of Delaware and qualified to do business in the state of California. Lorien Sunset is the owner of the real property located at 8635 Metz Place in Los Angeles, California (the ‘Metz Property’).” (SACC, ¶ 2.)

Based on a consideration of the foregoing, the Court finds that Keenan has demonstrated that Thiel’s deposition is “relevant to the subject matter involved in the pending action,” and that such deposition “appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) In addition, the Court is not persuaded by Thiel’s argument that Keenan’s request to depose Thiel is designed to harass Thiel and generate unnecessary expense.

As set forth above, Thiel is a defendant in Keenan’s Complaint. The Complaint alleges that Thiel’s limited liability company, Lorien Sunset, owns the property at issue in the Complaint (the property at 8600 Metz Place). (Compl., ¶ 1.) Plaintiff alleges, inter alia, that “Defendants have failed to stabilize the Thiel Property such that the Thiel Property remains a threat to health and safety of persons at Plaintiff’s Property,” and that “[s]ince February 2019, Defendant Thiel has done nothing to repair or remediate the Slope, or the dirt and debris on Plaintiff’s Property. Defendant Thiel and his attorneys have ignored Plaintiff’s requests as well as governmental orders to repair the Slope.” (Compl., ¶¶ 1, 13.)

In addition, although Thiel asserts that his responses to Keenan’s Special Interrogatories, Set One, are “based upon the facts, documents, and information presently known and available to counsel and authorized representatives for Thiel,” such responses still identify several parties in response to interrogatories requesting that Thiel “IDENTIFY…each and every consultant or contractor YOU have communicated with regarding the HILLSIDE since YOU first contemplated the purchase of LORIEN SUNSET PROPERTY,” and “IDENTIFY… all persons with knowledge of any and all changes, including, without limitation, construction, repaving, resurfacing, re-locating and reinforcing, YOU have performed or have caused to be performed on or to the road or adjacent to the road that runs along the HILLSIDE above the KEENAN PROPERTY...” (Ho Decl., ¶ 5, Ex. C; Special Interrogatories Nos. 1, 12) The verifications accompanying such responses are signed by Thiel, and indicate, inter alia, “[b]ased on my counsel’s and other authorized representatives’ investigation and knowledge, and in reliance on such investigation and knowledge, I declare under penalty of perjury under the laws of the State of California that, to the best of my knowledge, the foregoing is true and correct.” (Ho Decl., ¶ 5, Ex. C.)

Code of Civil Procedure section 2025.450, subdivision (g)(1) provides: “[i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” The Court finds that Thiel has acted with substantial justification in presenting his position and thus declines to award the requested sanctions against Thiel.

Based on the foregoing, Keenan’s motion to compel Thiel to appear and provide testimony at a deposition is granted. Keenan’s request for sanctions is denied.

The Court orders Thiel to appear for deposition at a date, time, and location to be determined by Keenan, subject to Thiel’s availability. To that end, Thiel is ordered to meet and confer with Keenan within 10 days of the date of this Order to set a mutually agreeable date for the deposition within the next 45 days.

[1]On October 18, 2022, Keenan filed an IDC Statement in advance of the October 25, 2022 IDC concerning the subject of Thiel’s deposition.

KEVIN KEENAN, Plaintiff, vs. PETER THIEL, et al., Defendants.	Case No.:	19STCV42167
	Hearing Date:	April 20, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION TO COMPEL DEFENDANT PETER THIEL TO ATTEND DEPOSITION AND TO PAY $3,625 IN SANCTIONS
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50