Judge: Theresa M. Traber, Case: 20STCV26523, Date: 2023-03-27 Tentative Ruling

Case Number: 20STCV26523    Hearing Date: March 27, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 27, 2023                      TRIAL DATE: July 11, 2023

CASE:                         Cecilia Perez et al. v. Kinetescape Inc, et al..

CASE NO.:                 20STCV26523           

MOTION FOR LEAVE TO TAKE DEPOSITION PURSUANT TO PENAL CODE SECTION 2623

MOVING PARTY(S):          Defendant, Cross-Defendant, and Cross-Complainant Kinetescape, Inc., d/b/a Clifton’s Cafeteria

RESPONDING PARTY(S): No opposition filed as of 3/22/23.

CASE HISTORY:

• 07/14/20: Complaint filed.
• 11/09/20: Cross-Complaint filed by Kinetescape, Inc. as to AEGIS Security & Investigations, Inc.
• 04/26/21: First Amended Cross-Complaint filed.
• 08/23/21: First Amended Complaint filed.
• 12/14/21: Second Amended Complaint filed.
• 02/04/22: Cross-Complaint filed by AEGIS Security & Investigations, Inc. as to Kinetescape, Inc. and Ruben Jesus Valero.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a tort action for wrongful death, negligence, premises liability, survivorship, negligent hiring, supervision, and retention of unfit employees, and assault and battery. Plaintiffs allege that Defendants are responsible for a violent altercation involving Plaintiff Dones, Decedent Perez, and Defendant Valero which resulted in Decedent Perez’s fatal stabbing by Valero and Plaintiff Dones’s stabbing and substantial injury by Valero.

            Defendant Kinetescape Inc. moves for leave to take the deposition of Defendant Ruben Valera pursuant to Penal Code section 2623.

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TENTATIVE RULING:

            Defendant Kinetescape Inc. moves for leave to take the deposition of Defendant Ruben Valera pursuant to Penal Code section 2623.

Under Penal Code section 2623, an order for a prisoner’s examination in the prison by deposition may be made by the court in which the action or special proceeding is pending only “on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.”  (Pen. Code, §¿2623.)  “The deposition, when ordered, shall be taken in accordance with Section 2622.”  (Ibid.)   

Defendant Kinetescape offers the declaration of its counsel, Attorney Jonathan A. Termechi, in support of this motion. Defendant’s counsel states only that the deposition of Defendant Valera is necessary “to gather additional facts and material evidence necessary to prepare for trial and/or settlement discussions.” (Declaration of Jonathan A. Termechi ISO Mot. ¶ 3.) The Declaration itself does not elaborate further, however, as stated in the body of the motion, the central allegation in this action is that Defendant Valera stabbed Plaintiff Dones and Decedent Ramsey Perez during a violent altercation which allegedly began in an establishment owned and operated by Defendant Kinetescape. (See SAC ¶¶ 28-30.) The motion states that Defendant Kinetescape anticipates eliciting testimony from Valera regarding the facts of this incident, including material facts necessary to establish fault and apportionment. Counsel for Defendant states that Valera is currently incarcerated. (Termechi Decl. ¶ 4.) Based on this declaration and the allegations presented in the operative complaint, the Court finds Valera’s expected testimony to be material to this litigation.

Accordingly, Defendant’s motion for leave to take Valera’s deposition pursuant to Penal Code section 2623 is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 27, 2023                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.