This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 01:09:16 (UTC).

JAMES SACCO JR., ET AL VS. AUTOMOBILE CLUB OF SOUTHERN CA

Case Summary

On 04/22/2016 JAMES SACCO JR filed a Contract - Other Contract lawsuit against AUTOMOBILE CLUB OF SOUTHERN CA. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4092

  • Filing Date:

    04/22/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs

SACCO KATHLEEN

SACCO DANTE A MINOR BY AND THROUGH HIS

SACCO JAMES JR.

SACCO JAMES III A MINOR BY AND THROUGH

SACCO DOMINIC A MINOR BY AND THORUGH

SACCO JAMES JR. JR.

Defendants and Cross Plaintiffs

EVISTA INDUSTRIES INC.

AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA

WARE TANYA

MACKENZIE SCOTT

SAVIOR LEAK DETECTION INC.

DOES 1-100

TRI-TECH RESTORATION AND CONSTRUCTION CO.

INTGERINSURANCE EXCHANGE OF THE AUTOMOBIL

CIS GROUP OF COMPANIES LLC DOE 3

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE INTERINSURANCE EXCHANGE OF THE AUTOMOBILE

BLANCHARD RICHARD DOE 2

Cross Defendants

1 THROUGH 10 INCLUSIVE ROES

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE INTERINSURANCE EXCHANGE OF THE AUTOMOBILE

Interested Party

GOLDEN STATE CLAIMS

Attorney/Law Firm Details

Plaintiff Attorneys

HAROUT GREG KEOSIAN

KEOSIAN HAROUT GREG

Defendant Attorneys

PROCTOR THOMAS R.

O'NEILL MICHAEL JOHN

STAUB JERRY KENNETH

PROCTOR THOMAS ROBBERT

BARGER GLENN THEODORE

Interested Party Attorney

ORLAND JAMES JOHN

 

Court Documents

Proof of Service of Summons and Complaint

5/12/2016: Proof of Service of Summons and Complaint

Unknown

5/26/2016: Unknown

Unknown

8/26/2016: Unknown

Unknown

10/7/2016: Unknown

Request for Judicial Notice

10/24/2016: Request for Judicial Notice

Unknown

11/3/2016: Unknown

Unknown

12/12/2016: Unknown

Unknown

3/23/2017: Unknown

Unknown

4/3/2017: Unknown

Unknown

4/7/2017: Unknown

Notice of Motion

7/13/2018: Notice of Motion

Notice of Court Hearing

7/18/2018: Notice of Court Hearing

Memorandum

9/4/2018: Memorandum

Order

9/4/2018: Order

Unknown

12/6/2018: Unknown

Proof of Service (not Summons and Complaint)

12/14/2018: Proof of Service (not Summons and Complaint)

Notice

12/26/2018: Notice

Opposition

2/6/2019: Opposition

220 More Documents Available

 

Docket Entries

  • 05/28/2019
  • Petition to Approve Compromise of Disputed Claim; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 05/28/2019
  • Memorandum of Points & Authorities; Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Petition to Approve Compromise of Disputed Claim; Filed by James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff); Kathleen Sacco (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Petition to Approve Compromise of Disputed Claim; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 05/28/2019
  • Motion for Summary Judgment; Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Notice of Lodging (Notice of Lodgment of Exhibits in Support); Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Declaration of Nathan S. Arrington in Support); Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Separate Statement; Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Proof of Service by Mail; Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Declaration of Veronica Rubio in Support); Filed by Interinsurance Exchange of the Automobile Club Erroneously Sued As Automobile Club of Southern California, a corporation (Defendant); Scott Mackenzie (Defendant); Tanya Ware (Defendant)

    Read MoreRead Less
361 More Docket Entries
  • 05/12/2016
  • Proof of Service of Summons and Complaint; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 05/12/2016
  • Proof of Service of Summons and Complaint; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 05/05/2016
  • Proof of Service of Summons and Complaint; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 05/05/2016
  • Proof of Service of Summons and Complaint; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 04/22/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 04/22/2016
  • Summons (on Complaint); Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 04/22/2016
  • Complaint; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 04/22/2016
  • Civil Case Cover Sheet; Filed by Dante Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); Dominic Sacco, by and through guardian ad litem Kathleen Sacco (Plaintiff); James Sacco, III, by and through guardian ad litem Kathleen Sacco (Plaintiff) et al.

    Read MoreRead Less
  • 01/27/2016
  • at 08:30 AM in Department T; Hearing on Demurrer - without Motion to Strike

    Read MoreRead Less
  • 01/27/2016
  • Minute order entered: 2016-01-27 00:00:00; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: LC104092    Hearing Date: May 17, 2021    Dept: T

JAMES SACCO JR., et. al.

Plaintiffs,

vs.

AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; et. al.

Defendants.

CASE NO:

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

Dept. T

8:30 a.m.

Hearing date: May 17, 2021

[TENTATIVE] ORDER:

-- The Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED as to all Issues.

-- Defendant’s Request for Judicial Notice is GRANTED except as to any hearsay and matters in dispute. The Third Amended Complaint is not judicially noticed for any evidentiary purposes.

-- Plaintiffs’ Request for Judicial Notice is GRANTED except as to any hearsay and matters in dispute. The Third Amended Complaint is not judicially noticed for any evidentiary purposes.

-- Ruling on Defendant’s evidentiary objections filed on April 23, 2021 is set forth below. Plaintiffs’ Opposition Points and Authorities included some evidentiary objections. (Oppo pg. 10:20-28.) The Court need not consider the objections due to Plaintiffs’ failure to comply with requirements in submitting written objections. CRC 3.1354.

1. INTRODUCTION

Defendant Tri-Tech Restoration & Construction Co., Inc. (“Defendant”) moves for summary judgment (“MSJ”) or alternatively summary adjudication of issues (“MSA”) against Plaintiff James Sacco Jr., et. al. (“Plaintiffs”) Third Amended Complaint (“TAC.”) The MSA requests adjudication of six issues. Issue no. 1 involves the element of duty as to the fourth cause of action (“COA”) for negligence. Issue no. 2 asserts the defense of waiver against the fourth COA for negligence and the sixth COA for negligent infliction of emotional distress (“NIED.”) Issue no. 3 places into issue the element of damages as to the fourth COA for negligence and the sixth COA for NIED. Issue no. 4 seeks adjudication of the sixth COA for NIED. Issue no. 5 places into issue the third COA for fraud. Issue no. 6 places into issue the seventh COA for intentional infliction of emotional distress (“IIED.”) Defendant is named in third, fourth, sixth and seventh COAs only.

Preliminarily, the court disagrees that the totality of this motion revolves around Tri-Tech’s duties on the contract. Instead, for purpose of this motion, the totality of the case revolves around the claims stated in the TAC. It is not the Contract that informs the court’s decision; it is the facts presented by defendant in relation to the TAC. This analysis may touch on the Contract but in order for the defendant to show that there are no triable issues, it must specifically address the claims asserted in the TAC.

2. PROCEDURE

Defendant’s Notice of Errata filed on April 12, 2021 is considered in the review of the MSJ and MSA in that there is no prejudice against Plaintiff found in its consideration.

3. DISCUSSION

A. Issue no. 1: Fourth COA for Negligence

Under Issue no. 1, Defendant asserts that there is no triable issue of material fact as to the Fourth COA because Defendant owed no duty to protect Plaintiffs from mold or asbestos. Preliminarily, the TAC’s fourth COA expressly identifies four specific duties of care owed: duty to perform with reasonable care (TAC para. 198;) duty to test or order the testing of asbestos prior to Savior, the plumber, performing its repairs (TAC para. 199;) duty to remove kitchen cabinets to prevent mold growth (TAC para. 200;) and duty to set up adequate containment prior to Savior jackhammering the floor in the hallway (TAC para. 202.) However, the arguments presented in the Motion shows that Defendant is expressly moving against only three of the four alleged duties: duty to test for asbestos, duty to remove cabinets and duty to contain dust in the hallway. (Motion pg. 11:3-25.) The motion makes no express arguments related to the duty to perform with reasonable care. In that the motion does not address this duty, it does not address all the duties alleged. Because all four duties are not addressed, the motion is defective in its request to adjudicate the entire fourth COA for negligence. On this procedural defect alone, the MSA as to Issue no. 1 can be denied.

Specifically as to the three duties cited in the Motion, Defendant argues that the contract at issue does not obligate Defendant to perform the duties alleged. Setting aside the arguments on whether a contract was formed, and assuming solely for the instant issue that a valid contract was entered (as submitted by the Motion), Defendant’s argument is that its duty was limited to the terms of the Authorization for Work and Home Improvement Contract (“Contract”) inclusive of the Estimate (“Estimate.”) (Michael Boyd Decl. paras. 2 & 3, Exhs. 5 & 6, respectively.)

The Estimate identifies the services to be provided :

1. Emergency service call after business hours;

2. Equipment setup, take down, and monitoring;

3. Apply anti-microbial agent – after hours;

4. Tear out toe kick and bag for disposal – after bus. Hours;

5. Containment Barrier/Airlock/Decon. Chamber – after Hours;

6. Peel & zipper – after hours;

7. Air mover (per 24 hour period) – No monitoring;

8. Dehumidifier (per 24 hour period) – Large -- No monitoring;

9. Containment Barrier/Airlock/Decon. Chamber – after Hours; and

10. Peel & seal zipper – after hours.”

(Defendant’s Material Fact (“DMF”) No. 26; Michael Boyd Decl., Exh. 6.) Defendant presented no evidence to explain what Items 1-10 mean, what was supposed to be done as to each item or even to explain the abbreviations.

The court does determine that Items 1 & 2 involve “Emergency Services.” Items 3 through 8 involve work in the “Kitchen.” Items 9 through 10 involve work in the “Hallway.” At least as to the duty to set up adequate containment in the hallway, Defendant’s argument that they had no duty to set up the containment of the hallway based upon the Contract terms is belied by its own evidence. The Estimate appears to expressly provide that Defendant had a contractual obligation to set up containment in the hallway (i.e., Exh. 6, Items 9 & 10.) Defendant’s own evidence showing a triable issue of fact on this issue shows that Defendant has not met its burden of proof. This defect provides additional grounds to deny the Motion as to Issue 1.

As to the alleged duties to perform asbestos and mold testing, and to remove kitchen cabinets, Defendant argues that it owes no duty of care and/or is not liable because the terms of the Contract and Estimate lack any provisions requiring Defendant to perform such acts. In support of this contention, Defendant relies upon El Escorial Owners’ Assn. v DLC Plastering, Inc. (2007) 154 Cal. App. 4th 1337, 1358 (“El Escorial.”) “Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort as well as a breach of the contract.’ (internal citation omitted.)” (Bolding added.) Id. Here, although the Contract and Estimate do not use the words “removal of cabinets” or “testing”, the court cannot say as a matter of law in the absence of evidence that Items 1-10 do not incorporate these requirements or that there is no independent duty separate from the words in the Contract to do so. It is noted that a contractual obligation can be the grounds for the instant tort claim; however, the argument does not address tort claims that can be independent of the contract. The case law cited in the Motion does not support Defendant’s contention that all of Defendant’s duties/liabilities are limited to the express contract terms. The TAC defines the issues to be decided, not the Contract. Therefore, Defendant’s arguments as to the duties to test for mold and asbestos and remove cabinets is not persuasive.

The motion as to Issue no. 1 is DENIED.

B. Issue no. 2 & 3: Fourth COA for Negligence and Sixth COA for NIED

Defendant then argues, as to Issue no. 2, that there is no triable issue of material fact regarding negligence and NIED because of the exculpatory clause found in Contract para. 9. However, Defendant fails to present facts to support excuse from liability as presented in the Contract, para. 9. The clause provides that mold may develop if the water intrusion was not dried out and mitigated within 48 to 72 hours from inception or that mold can spread or become airborne. It is these events that the contract provision Defendant asserts excuses it from liability. However, Defendant does not present any evidence or facts to show that the water was not dried out/mitigated within 48 to 72 hours or that the mold spread or became airborne. Defendant has failed to prove by admissible evidence that plaintiff’s damages were caused by the development of mold as a result of water intrusions that were not dried out and mitigated within 48-72 hours from the inception of such intrusion. Defendant has failed to show that there was spread or mold or mold becoming airborne from inadvertence. It is even unclear from the evidence presented by defendant that Plaintiffs’ claims are based upon a failure to dry/mitigate within 48 to 72 hours or that the mold spread or became airborne. Defendant’s evidence is insufficient to support the application of the exculpatory clause because of the lack of facts as delineated in para. 9 linking those facts to this case.

Defendant’s motion as to Issue no. 2 is DENIED.

Defendant also presents as Issue no. 3 that there is no triable issue of material fact regarding the element of damages as to the fourth and sixth COA because Plaintiffs’ damages are limited to the contract price of $1,542.19. An argument for limiting damages is not proper grounds for an MSJ or an MSA because it is not an argument or issue that disposes of the entire action or the entire cause of action, as required under CCP sec. 437c(a)(1) and (f)(1). Further and specifically to MSA, the argument is improper because an MSA as to damages are limited to punitive damages. CCP sec. 437c(f)(1). Defendant’s argument to limit damages is not in reference to a claim for punitive damages. Because the issue presented is not within the scope of the statute, the Court lacks authority on this issue.

Defendant’s MSA as to Issue no. 3 is DENIED.

C. Issue no. 4: Sixth COA for NIED

As to Issue no. 4 regarding NIED, Defendant re-asserts the same arguments made against the negligence COA reviewed under Issue nos. 1-3. (Motion pg.: 17:18-23.) As analyzed above, the motion as to Issue nos. 1-3 are unpersuasive and thus the instant issue is also unpersuasive.

Defendant’s MSA as to Issue no. 4 is DENIED.

D. Issue no. 5: Third COA for Fraud

Defendant’s contention that a contractor and landowner are not fiduciaries is not disputed by plaintiff. However, the existence of a fiduciary relationship is not the only basis to impose a duty to disclose. A duty to disclose is also found when the defendant has exclusive knowledge of material facts not known to the plaintiff; when the defendant actively conceals or when defendant makes partial representations but also suppresses some facts. OCM Principal Opportunities Fund, LP v CIBC World Markets Corp (2007) 157 Cal. App. 4th 835, 859. Defendant’s reliance upon Plaintiffs’ licensure is insufficient because there is no evidence presented to show that Plaintiff had knowledge of mold existing in the affected area (i.e.: the kitchen.) Defendant performed the work and not Plaintiff. Without any facts showing that Plaintiff actively investigated the area affected with mold or was involved in the emergency services work, or independently analyzed the situation as a contractor, it cannot be said as a matter of law that Plaintiff had knowledge of the material facts in this case. The fact that Plaintiff is a licensed contractor may show some additional knowledge regarding water intrusion remediation above a lay person but his licensure is insufficient to show his actual knowledge of the specifically affected areas.

Defendant’s argument relying upon the written contractual terms was addressed above.

Defendant argues an inconsistency in the TAC’s pleading. However, a pleading inconsistency is not proper grounds for an MSJ or MSA because it does not dispose of the entire action or a cause of action. Further, the pleading deficiencies do not raise issues as to facts, or lack thereof.

The motion as to Issue no. 5 is DENIED.

E. Issue no. 6: Seventh COA for IIED

The motion as to Issue no. 6 asserts that there is no triable issue of fact as to IIED. Preliminarily, Defendant’s points and authorities merely identifies the elements of the COA and then in conclusory form argues that Plaintiffs have no facts to create a triable issue. However, it is not Plaintiffs who have the initial burden on the motion. It is Defendant who has the initial burden of proof to show that there is no triable issue of facts to support the COA.

It is noted that Defendant’s legal authority states that the resolution of IIED turns on the first element of extreme and outrageous conduct. However, the motion lacks any application of the law to the facts of this case. A judge in a civil case is not “'obligated to seek out theories [a party] might have advanced, or to articulate for him that which … [a party] has left unspoken.'” Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.

Defendant failed to meet its initial burden of proof as to this issue. The motion as to Issue no. 6 is DENIED.

4. RULING ON DEFENDANT’S EVIDENTIARY OBJECTIONS

1. Overruled. The TAC was not offered as evidence of facts.

2. Sustained on all grounds.

3. Sustained on all grounds.

4. Sustained on all grounds.

5. Sustained on all grounds.

6. Sustained on all grounds.

7. Sustained on all grounds.

8. Sustained on all grounds.

9. Sustained on all grounds.

10. Overruled.

11. Overruled.

12. Sustained on all grounds.

13. Overruled.

14. Overruled.

15. Overruled. Improper for MSJ hearing. Bias is a triable issue for determination by the trier of fact at trial.

16. Overruled. The TAC was not offered as evidence of facts.

5. CONCLUSION

Because Defendant’s MSJ and MSA failed to meet its initial burden of proof, the burden did not transfer to Plaintiffs to show the existence of a triable issue of fact. Plaintiffs’ arguments as to unconscionability and economic duress are not considered at this time.

IT IS SO ORDERED, CLERK TO GIVE NOTICE.

Case Number: LC104092    Hearing Date: December 14, 2020    Dept: T

JAMES SACCO JR., et al

Plaintiff,

vs.

AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, et al

Defendants.

CASE NO: LC104092

[TENTATIVE] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER DEPOSITION OF MICHAEL BOYADJIAN (MIKE BOYD), DEFENDANT’S REQUEST IN ITS OPPOSITION FOR A PROTECTIVE ORDER AND MUTUAL REQUEST FOR SANCTIONS

Dept. T

8:30 a.m.

12/14/2020

[TENTATIVE] ORDER: REMOTE DEPOSITION OF MIKE BOYD IS ORDERED TO RESUME AT A MUTUALLY AGREEABLE DATE, TIME AND LOCATION WITHIN 20 DAYS. REQUEST FOR PROTECTIVE ORDER IS DENIED. NO TENTATIVE ORDER ON SANCTIONS.

This is a motion to compel Michael Boyd, the CFO of defendant Tri-Tech, to appear and resume his deposition which was started on 9/22/2020. The court has reviewed the papers filed in support of and in opposition to the motion, the complete transcript of the deposition (except the court did NOT review the exhibits to the deposition) and audio only of the video of the deposition (without a “code” the court was unable to see the video and could only hear the audio).

Mr. Boyd began his deposition on 9/22/2020 but it was terminated when he and his counsel Mr. Bates left the deposition after counsel stated “You know what, I’m going to make a motion for protective order so we’re done. Goodbye.” Page 83 (page references are to the deposition transcript). While it is appropriate under certain circumstances to adjourn a deposition to seek a protective order, in fact no motion for protective order was made by Mr. Bates. In fact, a date was reserved for a motion for protective order but no motion was filed.[1] Except for seeking a protective order, it was improper for Mr. Boyd and his counsel to leave the deposition before it was completed. Accordingly, the court will order Mr. Boyd to resume his deposition.

In meet and confer emails between counsel prior to and after the termination of Mr. Boyd’s deposition, Mr. Bates objected to an attempt to ask Mr. Boyd questions that were already asked of other witnesses. This is not a valid basis to object to a deposition and, in any event, no motion for protective order limiting the deposition was ever sought or issued. It should be noted that as he was the one to adjourn the deposition, it was Mr. Bates’ obligation to affirmatively seek relief, instead of waiting for a motion to compel to be filed. This is because the only time a deposition can be adjourned under these circumstances is to seek a protective order.

Mr. Bates (on page 77) stated: “You’re asking questions on which he has no knowledge on.” Of course, this begs the question. Until Mr. Boyd testifies that he does not know something, it cannot be presumed. This colloquy was unnecessary.

Mr. Bates’ instruction not to answer was to the question (page 77): “Mr. Boyd, do you make decisions regarding litigation matters in your company?” This question was a yes or no question. It did not specifically reference privileged information. Answering the question would not invade attorney client privilege. Answering the question would not invade attorney work product. Arguments about relevance would not support an instruction not to answer. Therefore, the instruction not to answer was improper. When Mr. Keosian tried to explain what he was not asking about, he was cut off and Mr. Bates said: “You know what? You know what? Move on, move on, or we’re going to be done.” Up to that point, it is not clear to the court from the transcript what could have prompted such a strong response from Mr. Bates.

The next question (page 78) to which there was an instruction not to answer was: “Is it part of your job duties to handle matters that go into litigation where Tri-Tech is involved?” Again, this is a yes or no question and does not invade attorney client privilege or attorney work product. The next question (page 78) to which there was an instruction not to answer was: “As the president of the company, are you familiar with any litigation that Tri-Tech is in?” Mr. Bates stated that: “This has nothing to do with this lawsuit. You’re getting into matters which was governed by attorney client privilege.” Again, this is a yes or no question and does not invade attorney client privilege or attorney work product. While it is true that follow up questions may very well prompt objections based on attorney client privilege or attorney work product, these particular questions did not.

The court has listened to the audio of the argument between counsel on pages 77-83 and determines that both counsel engaged unnecessarily. The court will be blunt...Mr. Bates’ comments on the record that Mr. Keosian was a bully and a thug (and later sarcastic “Goodbye” as he was leaving) were improper, unwarranted and unnecessary, and violate the intent and spirit of the Guidelines of Civility and Professionalism published by the State Bar of California. However, Mr. Keosian also made several unnecessary and unwarranted comments to the witness commenting negatively on counsel and their objections including (page 57): “See, Mr. Boyd, they don’t like this line of questioning. Especially Mr. Brooks, he doesn’t like it.” A good rule of thumb is if you can’t say it in front of the jury, it should not be stated in a deposition.

This situation deteriorated rather rapidly and could have been resolved by completion of the deposition on other issues and then, if required, seeking a motion to compel. Both counsel bear responsibility for failing to work this out professionally. It bears repeating, as the court has stated to counsel before, that all attempts to try to resolve the matter without having to resort to court intervention should be made in every discovery dispute.

In summary, therefore, there were no questions asked which would have warranted Mr. Bates’ instructions not to answer. However, the court is equally of the opinion that Mr. Keosian should have continued on with the deposition on other questions and then sought an order to compel from the court. Indeed, the court believes that is a preferred practice. Given that Mr. Bates was unrelenting in his position, nothing was to be gained for Mr. Keosian to continue to argue.

The deposition is to resume and be completed. Mr. Boyd is ordered to answer the above questions and reasonable follow-up questions to which there is no claim to privilege, and any other questions which were not completed on 9/22/2020. Mr. Keosian’s attention is drawn to the inevitable conclusion that some follow-up questions may very well invade privilege. The court urges counsel not to pursue argument on the record, but to make their position known for the record and move on in order to complete the deposition. The court orders counsel to refrain from name calling.

The court will consider argument on sanctions at the hearing. Alternatively, the parties may submit on the tentative and move forward with the deposition and waive sanctions.

IT IS SO ORDERED. CLERK TO GIVE NOTICE.


[1] Defendant argues that the motion was improperly brought (motion to compel deposition versus motion to compel answers to questions, etc.) Compare, however, defendant’s procedurally improper request for a protective order that was not filed as a motion despite the requirement under CCP section 2025.420 referencing a motion for protective order.

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