This case was last updated from Los Angeles County Superior Courts on 11/26/2019 at 16:46:09 (UTC).

DAVID FRIED VS ROCHELLE STERLING ET AL

Case Summary

On 05/16/2018 a Personal Injury - Other Personal Injury case was filed by DAVID FRIED against ROCHELLE STERLING in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6176

  • Filing Date:

    05/16/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff, Petitioner and Cross Defendant

FRIED DAVID

Defendants, Respondents and Cross Plaintiffs

DOE PROPERTY OWNERS 1 THROUGH 9

DOES 20 THROUGH 100

STERLING ROCHELLE

BEVERLY HILLS PROPERTIES LLC

STERLING FAMILY TRUST

DOE PROPERTY MANAGERS 10-19

Attorney/Law Firm Details

Plaintiff, Petitioner and Cross Defendant Attorneys

DODGE LAW FIRM INC.

DODGE KAREN REGINA

Defendant and Cross Plaintiff Attorneys

KLINEDINST PC

TOUTANT LINDA MICHELE

GARBACZ GREGORY ANDREW

 

Court Documents

Notice of Attachment

10/28/2019: Notice of Attachment

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DEPOSITION)

10/30/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DEPOSITION)

Motion to Compel - MOTION TO COMPEL MOTION TO COMPEL DEPOSITION

10/3/2019: Motion to Compel - MOTION TO COMPEL MOTION TO COMPEL DEPOSITION

Opposition - OPPOSITION TO MOTION TO COMPEL

10/17/2019: Opposition - OPPOSITION TO MOTION TO COMPEL

Reply - REPLY TO MOTION TO COMPEL DEPOSITION OF ROCHELLE STERLING'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEPOSITION

10/21/2019: Reply - REPLY TO MOTION TO COMPEL DEPOSITION OF ROCHELLE STERLING'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DEPOSITION

Request for Refund / Order

4/24/2019: Request for Refund / Order

Stipulation and Order - STIPULATION AND ORDER PROPOSED ORDER AND STIPULATION TO CONTINUE TRIAL

6/5/2019: Stipulation and Order - STIPULATION AND ORDER PROPOSED ORDER AND STIPULATION TO CONTINUE TRIAL

SUMMONS -

6/29/2018: SUMMONS -

ANSWER TO COMPLAINT

6/29/2018: ANSWER TO COMPLAINT

CROSS-COMPLAINT FOR: 1. NEGLIGENCE 2. NEGLIGENCE PER SE ECT.

6/29/2018: CROSS-COMPLAINT FOR: 1. NEGLIGENCE 2. NEGLIGENCE PER SE ECT.

ANSWER TO THE CROSS-COMPLAINT

7/11/2018: ANSWER TO THE CROSS-COMPLAINT

PROOF OF SERVICE SUMMONS -

6/5/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

6/5/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

6/5/2018: PROOF OF SERVICE SUMMONS -

SUMMONS -

5/16/2018: SUMMONS -

COMPLAINT FOR DAMAGES: 1. PREMISES LIABILITY ;ETC

5/16/2018: COMPLAINT FOR DAMAGES: 1. PREMISES LIABILITY ;ETC

4 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 05/04/2020
  • Hearing05/04/2020 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 04/22/2020
  • Hearing04/22/2020 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/18/2019
  • Docketat 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 10/30/2019
  • Docketat 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 10/30/2019
  • Docketat 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion to Compel (Deposition) - Held

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  • 10/30/2019
  • DocketMinute Order ( (Hearing on Motion to Compel Deposition)); Filed by Clerk

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  • 10/28/2019
  • DocketNotice of Attachment; Filed by David Fried (Plaintiff)

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  • 10/21/2019
  • DocketReply (to Motion to Compel Deposition of Rochelle Sterling's Opposition to Plaintiff's Motion to Compel Deposition); Filed by David Fried (Plaintiff)

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  • 10/17/2019
  • DocketOpposition (to Motion to Compel); Filed by Rochelle Sterling (Defendant)

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11 More Docket Entries
  • 06/29/2018
  • DocketCross-Complaint; Filed by Rochelle Sterling (Defendant); Sterling Family Trust (Defendant); Beverly Hills Properties, LLC (Defendant)

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  • 06/05/2018
  • DocketProof-Service/Summons; Filed by David Fried (Plaintiff)

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  • 06/05/2018
  • DocketProof-Service/Summons; Filed by David Fried (Plaintiff)

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  • 06/05/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/05/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/05/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/05/2018
  • DocketProof-Service/Summons; Filed by David Fried (Plaintiff)

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  • 05/16/2018
  • DocketComplaint; Filed by David Fried (Plaintiff)

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  • 05/16/2018
  • DocketSUMMONS

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  • 05/16/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. PREMISES LIABILITY ;ETC

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Tentative Rulings

Case Number: BC706176    Hearing Date: March 03, 2020    Dept: 32

 

Superior Court of California

County of Los Angeles

Department 32

david fried,

Plaintiff,

v.

rochelle sterling, et al.,

Defendants.

Case No.: BC706176

Hearing Date: March 3, 2020

[TENTATIVE] order RE:

Ex Parte Application to Compel Deposition

motion to quash deposition subpoena

BACKGROUND

Plaintiff David Fried (“Plaintiff”) filed this action against Defendant Rochelle Sterling, as Trustee for the Sterling Family Trust dba Beverly Hills Properties (“Defendant”), asserting causes of action for premises liability, negligence, and negligence per se. Plaintiff alleges that he rented his residence from Defendant, and there was an electrical fire on or about January 17, 2018, causing injury. Plaintiff filed an ex parte application to compel the deposition of Michael Koster, a fire investigator, which the Court decided to treat as a noticed motion to be heard simultaneously with Defendant’s motion to quash the deposition subpoena issued to Koster. Defendant’s motion for summary judgment is set for hearing on March 24, 2020, and the trial date is set for May 4, 2020. Plaintiff wishes to take Koster’s deposition before opposing the motion for summary judgment. The Court grants Plaintiff’s motion, and denies Defendant’s motion, because Plaintiff has the right to take Koster’s deposition before opposing the pending motion for summary judgment.

LEGAL STANDARD

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it. (Code Civ. Proc., § 1987.1, subd. (a).) In ruling on a motion for protective order, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

DISCUSSION

As an initial matter, it is important to understand the role that Michael Koster plays in this litigation and the chronology of events. Plaintiff alleges that the fire occurred on or about January 17, 2018. The next day, on January 18, 2018, Defendant retained Koster to “perform an investigation to determine the cause and origin of [the] fire . . . .” (Declaration of Michael Koster, ¶ 2.) Koster inspected the building on January 20, 2018 and prepared a report. (Id., ¶ 3.) Shortly thereafter, and before this action was filed, Plaintiff’s unit was repaired and renovated. (Declaration of Karen Dodge, Exh. #9.) Based upon the foregoing, Plaintiff argues that Koster is “the sole witness to key ‘facts’ and evidence, regarding the fire that is subject of the herein litigation, that were never available to Plaintiff.” (Plaintiff’s Opposition to Defendant’s Motion, at p. 2:3-5.) Also, Defendant moves for summary judgment based upon Koster’s declaration, which concludes that the fire was started by “smoldering materials (most probably cigarettes or marijuana cigarettes) coming into contact with combustibles (most probably the couch) . . . .” (Declaration of Michael Koster, ¶ 5.)

The gravamen of Defendant’s motion is that Plaintiff is not entitled to take expert witness depositions until forty (40) days before trial, per Code of Civil Procedure sections 2034.410 (no expert witness depositions may occur until after receipt of the expert witness disclosure list), 2034.230 (absent an order from the Court, expert witness disclosure shall not occur until fifty (50) days before trial or twenty (20) days after the demand, whichever is later), and section 2034.410 (an expert witness deposition requires ten (10) days’ notice). Defendant’s motion ignores an important distinction. Koster is not merely an expert Defendant retained for purposes of this litigation. Rather, Defendant hired Koster to investigate the underlying fire the next day, and he was a percipient witness to certain matters, i.e., the condition of the apartment, the debris in the apartment, the burn patterns in the apartment, etc.

Regardless, the mere fact that Koster may end up being designated as an expert witness does not support Defendant’s position. “[I]t would defeat the purpose of the summary procedure were we to recognize an absolute right of a party involved in the process to depose any person who provides evidence in support of or opposition to the proceeding.” (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1538.) Nonetheless, “under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert.” (Id. at 1540.) “[C]ontradictions raised by discovery may require the trial court to disregard declarations or affidavits.” (Ibid.)

In this case, Koster inspected the debris in the aftermath of the fire: “I observed, inspected and photographed the Unit and the Building, and the debris and materials remaining after the fire.” (Declaration of Michael Koster, ¶ 4.) Koster relied upon those observation as foundation for his opinion: “Based upon my inspection and observation, including the burns and burn patterns present, I determined that the cause of the fire to be smoldering materials (most probably cigarettes or marijuana cigarettes) coming into contact with combustibles (most probably the couch) . . . .” (Id., ¶ 5.) Accordingly, Plaintiff is entitled to depose Koster, as his inspection is the factual basis for Koster’s conclusions. Plaintiff is entitled to explore the foundation for Koster’s opinion so any of his own expert witnesses may have a sufficient basis to provide a contrary opinion. Plaintiff is entitled to take Koster’s deposition to determine whether there is sufficient foundation for his opinion or whether there are contradictions sufficient to require the Court to sustain any objection to his declaration.

Equally important, there is a fundamental fairness issue: Defendant relies on the declaration of Koster in moving for summary judgment but seeks to deprive Plaintiff of the opportunity to take his deposition in order to oppose the motion. In other words, Defendant seeks to prevent Plaintiff from taking the deposition of someone who inspected the apartment and its contents—an opportunity Plaintiff will not have—at issue in advance of filing an opposition to the pending motion for summary judgment. Essentially, Defendant seeks to use the Code of Civil Procedure as both a sword and a shield. Defendant proffers Koster’s declaration in an effort to persuade the Court to grant summary judgment but then attempts to shield Koster from a deposition. Defendant cannot have it both ways. While Defendant was not required to proffer Koster’s opinion in advance of the expert designation deadlines and rely on it in support of her motion for summary judgment, she voluntarily chose to do so. Similarly, the Court finds no undue prejudice to Defendant if Plaintiff takes Koster’s deposition in advance of the motion for summary judgment. The reason to delay expert witness depositions until after the designations, inter alia, is to prevent a party from learning the opposing party’s expert opinion prematurely and having an unfair advantage in discovery. But that is not a concern in this case because Defendant voluntarily disclosed Koster’s opinion in advance of the expert designation deadline.

Defendant cites no authority divesting the Court of discretion to permit this deposition to occur before the motion for summary judgment. To the contrary, the case law holds that the Court may order the deposition of an expert in advance of a hearing on a motion for summary judgment. (St. Mary Medical Center, supra, 50 Cal.App.4th at 1538.)

In the alternative, Defendant states: “To avoid burden, expense and duplication, and to assure fairness, Defendant’s expert should only be deposed concerning his opinions as stated in his declaration . . . .” (Defendant’s Memorandum of Points and Authorities, at p. 11:18-19.) The Court does not believe an effective line can be drawn, given that the declaration encompasses a broad opinion in this case. Moreover, the Court will not order two depositions of Koster, one now based on the declaration and one later, which Defendant seeks to suggest would be objectionable anyway.

Defendant requests that the Court should order payment of Koster’s standard deposition fees and then a continuance to permit a deposition of any of Plaintiff’s experts. The Court orders the parties to meet-and-confer on these issues. Both are matters the parties should be able to resolve amongst themselves, so the Court denies both requests without prejudice.

CONCLUSION AND ORDER

Plaintiff’s motion to compel the deposition of Michael Koster is granted. Defendant’s motion to quash the deposition subpoena issued to Michael Koster is denied. The deposition of Michael Koster shall occur on or before March 27, 2020, unless the parties stipulate to a different date. The Court advances and vacates the dates for the motion for summary judgment, final status conference, and trial. The Court sets the following dates:

Motion for Summary Judgment: May 5, 2020, at 1:30 p.m.

Final Status Conference: July 15, 2020, at 10:00 a.m.

Trial: July 29, 2020, at 8:30 a.m.

The discovery and motions cut-off shall remain based on the former trial date (May 4, 2020). The Court’s clerk shall provide notice.

DATED: March 3, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC706176    Hearing Date: October 30, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

david fried,

Plaintiff,

v.

rochelle sterling, et al.,

Defendants.

Case No.: BC706176

Hearing Date: October 30, 2019

[TENTATIVE] order RE:

motion to compel deposition

BACKGROUND

Plaintiff David Fried (“Plaintiff”) filed this action after he was injured in a fire, allegedly due to a lack of working smoke detectors and residential fire sprinklers. Plaintiff named as defendants Rochelle Sterling, the Sterling Family Trust, Doe Property Owners 1 through 9, Beverly Hills Properties, LLC, DOE Property Managers 10 through 19, and DOES 20 through 100. Plaintiff sought to take the deposition of Rochelle Sterling (“Defendant”) and now files a motion to compel in order to do so. Defendant opposes the motion, arguing that Plaintiff has sued the wrong individual. The motion is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Plaintiff has the right to take the deposition of a defendant without leave of the Court. (See Code Civ. Proc., § 2025.210, subd. (a).) Not only is Defendant named as an individual defendant, she has appeared as “Defendant Rochelle Sterling, as Trustee of the Sterling Family Trust and for dba Beverly Hills Properties (“Defendant”). (Defendant’s Answer, at p. 2.) For that reason, Plaintiff is entitled to take Defendant’s deposition. Further, Defendant has verified discovery responses on behalf of the Sterling Family Trust. At minimum, this subjects Defendant to deposition regarding the sources of the information in Defendant’s discovery responses. (See Code Civ. Proc., § 2030.250, subd. (b).)

In opposition, Defendant argues that she lacks personal knowledge relevant to this dispute. If Defendant sought to preclude Plaintiff from taking her deposition, Defendant should have moved for a protective order. (See Code Civ. Proc., § 2025.420, subd. (b).) Defendant did not do so. Likewise, Defendant’s reliance on Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 is misplaced, as that case concerns the availability of protective orders. (See Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287-1288.)

Putting that aside, even if Defendant has no personal knowledge of the disputed issues, as she claims, that fact itself may be relevant. If Defendant’s trust owned the building and Defendant is the trustee, her lack of knowledge concerning the condition of the building may be relevant to showing that the trust was a negligent landlord.

Defendant argues that Plaintiff named the wrong parties in this action. Even if so, that is no basis to refuse to submit to a deposition for the reasons stated in this order. Defendant may file a motion for summary judgment on this basis.

Plaintiff did not notice discovery sanctions. Therefore, the Court orders no sanctions, notwithstanding that Defendant lacked substantial (or any) justification for her opposition.

CONCLUSION AND ORDER

Plaintiff’s motion to compel Defendant’s deposition is granted. Defendant shall appear for a deposition within thirty (30) days of notice of this order, unless Plaintiff stipulates to extend the deadline. Plaintiff shall provide notice and file proof of such with the Court.

DATED: October 30, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court