Judge: William A. Crowfoot, Case: 21STCV09345, Date: 2022-10-03 Tentative Ruling

Case Number: 21STCV09345    Hearing Date: October 3, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 10, 2021, plaintiff Wesley Schwartz (“Plaintiff”) filed this action against defendant City of Los Angeles (“Defendant”).  Plaintiff alleges that on August 28, 2020, he was riding a scooter when he came into contact with a pothole, causing him to fly off his scooter and collide into a bicycle rack located on a sidewalk.  (Compl., ¶ 8.)  On August 29, 2022, Plaintiff filed this motion to compel the videotaped deposition of Defendant’s person most knowledgeable (“PMK”) on Topics 3-6, 13-14, 17-31, and 33-34.  Plaintiff also requests monetary sanctions.

II.          LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  “If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).) 

III.        DISCUSSION

The topics at issue in this motion include:

3. Any and all inspections of the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

4. Any and all maintenance and/or repairs to the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

5. Any and all inspections of the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, since August 28, 2020.

6. Any and all maintenance and/or repairs to the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, since August 28, 2020.

13. Any and all pedestrian accidents that occurred at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

14. Street sweeping activities that occurred along the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020, including the street sweeping route, frequency of the street sweeping, and the street sweeping process.

17. Any and all City of Los Angeles policies and procedures in effect in 2020 as to how it would be determined if a portion of a road in Venice, California needed to be repaired.

18. Any and all City of Los Angeles policies and procedures in effect in 2020 as to how the frequency within which roads in Venice, California were to be inspected.

19. Any and all City of Los Angeles policies and procedures in effect in 2020 applicable to a Motor Sweeper Operator’s duty to report potholes or other dangerous conditions of the road along their sweeping route.

20. The person(s) employed by or contracted by the City of Los Angeles to perform service cuts and other utility work along the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

21. The Pavement Management System and the Pavement Condition Index Rating for the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

22. The last time that the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, was inspected for purposes of determining the Pavement Condition Index Rating for that area of the road.

23. All photographs and video taken during an inspection for purposes of determining the Pavement Condition Index Rating for the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles, from 2015 to August 28, 2020.

24. Any and all district inspection logbooks for all roads in located Venice, California, within District 11.

25. Any and all sidewalk inspection logbooks for all sidewalks located in Venice, California, within District 11.

26. The annual budget for the Bureau of Street Services in effect in 2020 for road inspection, maintenance, and repairs.

27. Any and all monies allocated from the Bureau of Street Services’ budget in effect in 2020 to District 11 for road inspection, maintenance, and repairs.

28. The procedure in place from 2015 to 2020 for the repair of potholes on a road similar to the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles.

29. The procedure in place from 2015 to 2020 for the repair of service cuts on a road similar to the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles.

30. The procedure in place for repairing a condition of a road after the City of Los Angeles receives a citizen complaint or request for repair.

31. The City of Los Angeles’ inspection of the area of the subject incident (Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles) after August 28, 2020.

33. Replacement of portions of the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles between 2015 – 2020.

34. Reasons for replacement of the portions of the road at Abbot Kinney Boulevard, between California Avenue and Andalusia Avenue, Los Angeles between 2015 – 2020.

Trial is currently scheduled for December 6, 2022 and Plaintiff requests the Court order Defendant to produce a PMK for deposition on the above-listed topics within 5 days of the granting of this motion.  Plaintiff states that Defendant claimed its PMK would not be available until January 2023 without providing any further explanation. 

First, Defendant opposes the motion and argues that Plaintiff failed to sufficiently meet and confer before filing this Motion.  The Court disagrees.  Plaintiff has been attempting to schedule these depositions since the deposition notice was first served on May 9, 2022.  Also, Plaintiff inquired twice about rescheduling the August 26, 2022, deposition after Defendant cancelled the deposition on July 27, 2022; once on July 29, 2022 and again on August 4, 2022.  (Motion, Exs. 5-7.) 

Second, Defendant argues that its objections to the PMK deposition notice are valid, namely that its deponent was not available on the date of the scheduled deposition.  Defense counsel declares that Defendant is unable to produce a deponent before the current trial date.  However, there are no facts underlying this explanation.  For example, defense counsel merely states that in July 2022, the proposed deponent stated he was not available until November 2022.  (Dixon Decl., ¶ 7.)  Then, in August, this individual reportedly stated he was not available until January 2023.  (Dixon Decl., ¶ 7.)  Defendant cannot excuse its obligation to produce a deponent by broadly referring to the individual’s vague unavailability.  Defense counsel claims to have raised the matter to “higher ups” within the correct department, the Bureau of Street Services, but defense counsel does not identify those individuals.  (Dixon Decl., ¶ 7.) 

Third, Defendant erroneously claims that Plaintiff should have scheduled an informal discovery conference (“IDC”) because some PMK depositions on different topics went forward.  This is inaccurate, as this is not a motion for further discovery responses.  This is a motion to compel a deposition. 

Last, Defendant argues that Plaintiff should not be awarded sanctions due to the alleged lack of a reasonable and good faith attempt to resolve the dispute.  As stated above, the Court disagrees with Defendant’s characterization of Plaintiff’s attempts to meet and confer.  Further, Defendant does not provide substantial justification for its failure to produce a deponent.  Accordingly, Plaintiff’s request for sanctions is GRANTED.

IV.         CONCLUSION

Plaintiff’s motion is GRANTED.  Defendant is ordered to produce a PMK for Topic Nos. 3-6, 13-14, 17-31, and 33-34 within 10 days of the date of this order. 

Plaintiff’s request for sanctions is GRANTED and imposed against Defendant in the reduced amount of $1,111.65, consisting of 3 hours at Plaintiff’s counsel’s rate of $350 per hour, and a $61.65 filing fee, to be paid within 10 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.