This case was last updated from Los Angeles County Superior Courts on 10/19/2020 at 22:32:19 (UTC).

MARTIN BERTUCCI VS HIS ROYAL HIGHNESS PRINCE KHALID BIN FAI

Case Summary

On 10/06/2017 MARTIN BERTUCCI filed a Personal Injury - Other Personal Injury lawsuit against HIS ROYAL HIGHNESS PRINCE KHALID BIN FAI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8666

  • Filing Date:

    10/06/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiff and Petitioner

BERTUCCI MARTIN

Defendants and Respondents

HIS ROYAL HIGHNESS PRINCE KHALID BIN

HIS ROYAL HIGHNESS PRINCE FAISAL BIN

ALASWAD IMMAD

DOES 1 TO 100

AMGROUP INCORPORATION

MIDWELL ESTATES HOLDINGS COMPANY

H.R.H. PRINCE KHALID

KHALID H.R.H. PRINCE

SAUD HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL

BIN SULTAN BIN ABDULAZIZ AL SAUD HIS ROYAL HIGHNESS PRINCE FAISAL

ALASWAD IMAD

AMGROUP INC.

HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD

HIS ROYAL HIGHNESS PRINCE FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD

Attorney/Law Firm Details

Defendant and Plaintiff Attorneys

COPPOLA CARLO ALESSANDRO

SIMON ROBERT T. ESQ.

MONTGOMERY MICHAEL JAMES

CONROY THOMAS JAMES

SIMON ROBERT TERRENCE

Plaintiff and Petitioner Attorney

SIMON ROBERT T. ESQ.

Defendant and Respondent Attorneys

POOLE DAVID S. ESQ.

POOLE & SHAFFERY LLP

WOOD SMITH HENNING & BERMAN LLP

COPPOLA CARLO ALESSANDRO

POOLE DAVID SEAN

BENKNER JASON ARTHUR

 

Court Documents

Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

10/18/2018: Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

10/2/2018: Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

Separate Statement - SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD'S NOTICE OF MOTION AND MOTION TO COMPEL

10/2/2018: Separate Statement - SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD'S NOTICE OF MOTION AND MOTION TO COMPEL

Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE...

10/2/2018: Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE...

Motion to Deem RFA's Admitted - MOTION TO DEEM RFA'S ADMITTED REQUESTS FOR ADMISSIONS, SET ONE, BY PLAINTIFF MARTIN BERTUCCI AND REQUEST FOR SANCTIONS OF $742.50; DECLARATION OF SAMUEL R. NORA IN SUP

12/12/2018: Motion to Deem RFA's Admitted - MOTION TO DEEM RFA'S ADMITTED REQUESTS FOR ADMISSIONS, SET ONE, BY PLAINTIFF MARTIN BERTUCCI AND REQUEST FOR SANCTIONS OF $742.50; DECLARATION OF SAMUEL R. NORA IN SUP

Motion for Order - MOTION FOR PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION

4/23/2019: Motion for Order - MOTION FOR PRE-TRIAL DISCOVERY OF DEFENDANT'S FINANCIAL CONDITION

Exhibit List - EXHIBIT LIST COMPENDIUM OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

6/25/2019: Exhibit List - EXHIBIT LIST COMPENDIUM OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Separate Statement

6/25/2019: Separate Statement

Motion for Summary Adjudication

6/25/2019: Motion for Summary Adjudication

Separate Statement

6/27/2019: Separate Statement

Motion for Summary Judgment

6/27/2019: Motion for Summary Judgment

Notice - NOTICE COMPENDIUM OF EVIDENCE

6/27/2019: Notice - NOTICE COMPENDIUM OF EVIDENCE

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

7/8/2019: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 07/18/2019

7/18/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 07/18/2019

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

7/18/2019: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Minute Order - MINUTE ORDER (EX PARTE APPLICATION OF DEFENDANTS, HIS ROYAL HIGHNESS PRINCE...)

8/2/2019: Minute Order - MINUTE ORDER (EX PARTE APPLICATION OF DEFENDANTS, HIS ROYAL HIGHNESS PRINCE...)

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS SEPARATE STATEMENT OF MATERIAL FACTS; PLAINTIFFS FURTHER SEPARATE STATEMENT

8/27/2019: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS SEPARATE STATEMENT OF MATERIAL FACTS; PLAINTIFFS FURTHER SEPARATE STATEMENT

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT HIS ROYAL HIGHNESS PRINCE KHALIDS MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF THOMAS J. CONROY I

8/27/2019: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT HIS ROYAL HIGHNESS PRINCE KHALIDS MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF THOMAS J. CONROY I

232 More Documents Available

 

Docket Entries

  • 02/22/2021
  • Hearing02/22/2021 at 10:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 02/11/2021
  • Hearing02/11/2021 at 09:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/16/2020
  • DocketNotice of Ruling; Filed by Martin Bertucci (Plaintiff)

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  • 09/15/2020
  • Docketat 09:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Motion to Quash (Deposition Subpoena Upon Plaintiff's Expert Kris Herzog) - Held - Motion Granted

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  • 09/15/2020
  • DocketMinute Order ( (Motion of Plaintiff, Martin Bertucci, to Quash Deposition Sub...)); Filed by Clerk

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  • 09/15/2020
  • DocketRuling; Filed by Clerk

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  • 09/15/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Martin Bertucci (Plaintiff)

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  • 09/08/2020
  • DocketReply (To Defendants Opposition To The Motion To Quash Service Of Deposition Subpoena Upon Plaintiffs Retained Expert Kris Herzog; Memorandum Of Points And Authorities And Declaration Of Thomas J. Conroy In Support Thereof); Filed by Martin Bertucci (Plaintiff)

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  • 09/08/2020
  • DocketObjection (TO EVIDENCE IN SUPPORT OF THE REPLY TO DEFENDANTS OPPOSITION TO THE MOTION TO QUASH SERVICE OF DEPOSITION SUBPOENA UPON PLAINTIFFS EXPERT KRIS HERZOG); Filed by Martin Bertucci (Plaintiff)

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  • 09/01/2020
  • DocketMemorandum of Points & Authorities; Filed by His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud (Defendant)

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362 More Docket Entries
  • 11/16/2017
  • DocketDeclaration; Filed by His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud (Defendant); His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud Erroneously Sued As His Royal Highness Prince Faisal Bin Sultan Bin Abdulaziz Al Saud (D

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  • 11/13/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 11/13/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/26/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/26/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/11/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/11/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/06/2017
  • DocketComplaint; Filed by Martin Bertucci (Plaintiff)

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  • 10/06/2017
  • DocketSUMMONS

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  • 10/06/2017
  • DocketPLAINTIFF'S COMPLAINT FOR: 1.NEGLTGENCE ;ETC

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Tentative Rulings

Case Number: ****8666 Hearing Date: July 1, 2022 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

MARTIN BERTUCCI,

vs.

HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD, et al.

Case No.: ****8666

Hearing Date: July 1, 2022

Plaintiff’s motion to strike the Amended Judgment is denied.

Defendant Prince Khalid’s unopposed application to seal is granted.

Plaintiff Martin Bertucci (“Plaintiff”) moves to strike the award of costs set forth in the Amended Judgment of Defendant Midwell Estates Holdings Company (“Midwell”) against Plaintiff. (Notice of Motion, pg. C.P. 473(b). [The Court notes while the Notice of Motion refers to striking the Amended Judgment in its entirety, the motion makes clear that Plaintiff seeks to strike the costs awarded in Midwell’s favor in the Amended Judgment, the key difference between it and the initial Judgment.] In addition, on June 15, 2022, Defendant His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud (“Prince Khalid”) filed an application to seal documents Plaintiff lodged conditionally under seal in connection with the instant motion and reply.

  1. Application to Seal

    Prince Khalid moves to seal the following: (1) references to the Confidential Settlement Agreement (“Settlement”) between Plaintiff, Prince Khalid, and Defendant AMGroup, Inc. (“AMGroup”) (collectively, “Settling Defendants”) in Plaintiff’s Motion to Strike Amended Judgment; and (2) documents and exhibits that identify the terms of the Settlement, including the Settlement itself. (Application; Notice of Lodgment, pg. 2.) Prince Khalid moves for an order to seal on the grounds the terms of the Settlement are confidential and not relevant to Plaintiff’s motion since Midwell was not a party to the Settlement. Prince Khalid argues the overriding interest in sealing the records overcomes the right to public access given the records contain the confidential terms of the Settlement. (Application, pgs. 4-5; Decl. of Coppola 16.)

    CRC Rule 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”

    CRC Rule 2.551(b)(1) provides, as follows: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”

    CRC Rule 2.550(d) provides, as follows: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

    Prince Khalid sufficiently demonstrated that the redacted information contained in Plaintiff’s motion, reply, and supporting exhibits amounts to the confidential terms of the Settlement, such that there exists an overriding interest that overcomes the right of the public access to the records; the overriding interest supports sealing the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. (Application, pgs. 4-5.) In addition, Prince Khalid demonstrated the redacted information (references to the terms of and/or parties to the Settlement) is not at issue in the instant motion addressing costs awarded to Midwell in the Amended Judgment given Midwell was not a named party to the Settlement, a fact conceded by Plaintiff in his moving and reply papers. As such, the proposed sealing is sufficiently narrowly tailored to protect the overriding privacy interests of Prince Khalid while also allowing public access.

    Based on the foregoing, Prince Khalid’s unopposed application to seal is granted.

  2. Motion to Strike Judgment

    Plaintiff moves to strike the Amended Judgment’s order that Midwell shall recover costs from Plaintiff in the amount of $12,727.06 based on Plaintiff’s mistake. (Motion, pg. 9.) Specifically, Plaintiff argues that as a result of his mistaken belief that the Settlement would extinguish Midwell’s efforts to recoup costs, he failed to contest the Memorandum of Costs.

    Background

    On October 6, 2017, Plaintiff filed his initial complaint in this action against Midwell, Prince Khalid, and AMGroup (collectively, “Defendants”) for causes of action relating to Prince Khalid’s alleged assault of Plaintiff. The alleged assault occurred while Plaintiff was performing security services for Prince Khalid, for which he was hired by AmGroup and while on property owned by Midwell. Plaintiff’s action against Midwell, which included causes of action for negligence and negligent infliction of emotional distress (“NIED”), was based on Midwell’s ownership of the property where the incident took place.

    On September 12, 2019, the Court granted Midwell’s motion for summary judgment as to Plaintiff’s complaint. On February 13, 2020, Plaintiff filed a dismissal of AMGroup from the action, which was entered on February 18, 2020. On August 20, 2021, Prince Khalid filed a Notice of Acceptance of Statutory Offer to Compromise indicating that on June 29, 2021, Plaintiff had accepted Prince Khalid’s offer to compromise. The Court notes that as of the date of the June 2021 998 Offer, Prince Khalid was the only remaining defendant against whom Plaintiff’s case was still being pursued since AMGroup had been dismissed in February 2020 and since Midwell had prevailed on its motion for summary judgment in September 2019. [The Court notes Prince Khalid also filed a Motion for Entry of Judgment on September 16, 2021; however, he withdrew this motion on October 26, 2022.] On August 23, 2021, Midwell filed a [Proposed] Judgment in its favor based on the Court’s September 12, 2019 ruling granting Midwell’s motion for summary judgment against Plaintiff (“Judgment”), which was signed on September 23, 2021. On September 7, 2021, Midwell filed a motion for cost of proof sanctions against Plaintiff. On October 5, 2021, Midwell filed a Memorandum of Costs seeking $12,727.06 in costs. CRC Rule 3.1700(b) provides that any notice of motion to tax costs must be served and filed 15 days after service of the cost memorandum and that after the time has passed for a motion to strike or tax costs, the clerk must immediately enter the costs on the judgment. Plaintiff did not file a motion to tax costs or otherwise object to the Memorandum of Costs.

    On December 20, 2021, Plaintiff filed a Request for Dismissal of the entire action of all parties and all causes of action with prejudice, which was subsequently entered as requested on January 14, 2022. On January 13, 2022, the Court denied Midwell’s motion for cost of proof sanctions and on that same date, Midwell filed a proposed Amended Judgment on its Motion for Summary Judgment Against Plaintiff (“Amended Judgment”) which added language noting that, as prevailing party and pursuant to Midwell’s presentation of an uncontested memorandum of costs, Midwell shall recover costs from Plaintiff in the amount of $12,727.06. On January 14, 2022, Plaintiff filed an objection to the Amended Judgment, and accordingly on January 25, 2022, the Court set a February 8, 2022 hearing regarding the Amended Judgment. Plaintiff did not appear at the February 8, 2022 hearing, at which the Court addressed Plaintiff’s objection and ultimately signed and filed the Amended Judgment. Plaintiff filed the instant motion on January 14, 2022.

    Plaintiff argues the Amended Judgment (and/or its order awarding costs to Midwell from Plaintiff) should be struck for two separate reasons: (1) the Settlement and release, effective June 30, 2021, mooted the October 5, 2021 Memorandum of Costs; and (2) alternatively, if the Memorandum of Costs was not mooted by the Settlement, Plaintiff’s failure to timely contest it was the result of mistake, inadvertence, or excusable neglect given he believed the Settlement’s release applied to Midwell. (Notice of Motion, pg. 2; Motion, pgs. 6-10.)

    Whether the Settlement Mooted the Memorandum of Costs

    The Court finds the Settlement did not moot the Memorandum of Costs filed by Midwell. The record demonstrates Midwell prevailed in this action when the Court granted its motion for summary judgment against Plaintiff in September 2019. Plaintiff concedes Midwell is not a named party to the June 2021 Settlement, and Plaintiff submits no competent evidence supporting his position that the Settlement’s release encompasses Midwell. Plaintiff’s conclusory assertion that Midwell is among the “universe of actors on the defense side” runs counter to the procedural history of the action and the Settlement itself, notwithstanding the fact Midwell and Prince Khalid were represented by the same counsel and were insured by the same entity. (Motion, pg. 6; Decl. of Conroy 8.) Accordingly, Plaintiff’s motion to strike the Amended Judgment on this ground is denied.

    C.C.P. 473(b)

    “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken… ” (C.C.P. 473(b).)

    Plaintiff argues the Amended Judgment’s order awarding costs in Midwell’s favor should be struck in its entirety based on Plaintiff’s failure to timely oppose the costs based on a mistaken belief that the Costs Memo was a “vestigial filing” and not costs that Midwell was actually seeking, given the matter had achieved a “global settlement” in June 2021, with Plaintiff to release the “universe of actors” on the defense side and vice versa. (Motion, pg. 5; Decl. of Conroy 8.) Plaintiff appears to argue that while the release does not name Midwell, it was reasonable for him to mistakenly believe the Settlement’s release provision applied to Midwell’s claims against Plaintiff and as such, Midwell’s request that the Court award it costs would not be enforceable. In opposition, Midwell submitted evidence that it was never a part of Plaintiff’s 2021 settlement discussions with Prince Khalid, the sole remaining defendant at that time as the case was moving toward trial, and that Midwell is not a party to the Settlement which was ultimately executed by the parties thereto in October 2021. (Decl. of Coppola 8, 12, 13.) Midwell submitted evidence it is a Cayman Islands corporation that holds no properties on behalf of Prince Khalid, that it was never a part of settlement negotiations, is not a signatory to any settlement in this matter, and has not released any claims in this matter. (Decl. of Coppola 14, 15.)

    Plaintiff did not meet his burden of establishing the Court’s entry of the Amended Judgment awarding Midwell costs against Plaintiff was the result of his mistake, inadvertence, surprise, and/or excusable neglect so as to warrant the relief requested, striking the awarded costs in their entirety. The Court finds Plaintiff’s failure to object to the initial judgment, his failure to file a motion to tax costs or any other filing with respect to the Memorandum of Costs, and his failure to appear and argue its objection to the Amended Judgment at the specially set hearing demonstrate that any neglect by Plaintiff in failing to do so was not how a reasonably prudent person under similar circumstances would have acted. While Plaintiff may have been initially mistaken as to the enforceability of the Memorandum of Costs against him, the Court finds it was unreasonable for Plaintiff to take no action with respect to these costs notwithstanding Midwell’s filings throughout 2021 demonstrated its intent to have judgment entered in its favor and to have costs awarded. Indeed, Midwell also moved for cost of proof sanctions. While these were denied, Plaintiff’s mistaken belief that Midwell could not seek costs was not reasonable. Plaintiff’s counsel Thomas J. Conroy (“Conroy”) filed a declaration in which he asserts his office perceived the Memorandum of Costs as a mistaken vestigial filing in a settled case and, as such, ignored it. (Decl. of Conroy 8.) Conroy also concedes that Midwell prevailed on its motion for summary judgment on September 12, 2019, after which Midwell became a dormant litigant, not participating in the action until filing the Memorandum of Costs at issue here, after a global settlement had been reached. (Decl. of Conroy 7.) However, this global agreement did not include Midwell. To the extent Plaintiff contends these assertions amount to facts supporting Plaintiff (or Plaintiff’s counsel) mistake, inadvertence, or reasonable neglect, they are not sufficient. Conroy does not declare that Midwell was a party to the Settlement. Moreover, Conroy’s declaration does not set forth that his mistake, inadvertence, neglect or fault in failing to object to the Memorandum of Costs or file a motion to tax costs which caused the Amended Judgment to be filed against Plaintiff.

    Based on the foregoing, Plaintiff’s motion to strike the costs set forth in the Amended Judgment pursuant to C.C.P. 473(b) is denied.

    Dated: July , 2022

    Hon. Monica Bachner

    Judge of the Superior Court



Case Number: ****8666 Hearing Date: January 13, 2022 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

MARTIN BERTUCCI,

vs.

HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD, et al.

Case No.: ****8666

Hearing Date: January 13, 2022

Defendant Midwell Estates Holdings Company’s motion for cost of proof sanctions is denied.

Defendant Prince Khalid’s unopposed application to seal is granted.

Defendant Midwell Estates Holdings Company (“Midwell”) moves for cost of proof sanctions against Plaintiff Martin Bertucci (“Plaintiff”). In addition, on December 27, 2021, Defendant His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud (“Prince Khalid”) filed an application to seal documents Plaintiff lodged conditionally under seal in connection with his opposition to the instant motion.

  1. Application to Seal

    Prince Khalid moves to seal the following: (1) references to the Confidential Settlement Agreement (“Settlement”) between Plaintiff, Prince Khalid, and Defendant AMGroup, Inc. (“AMGroup”) (collectively, “Settling Defendants”) in Plaintiff’s opposition to Midwell’s motion for cost of proof sanctions; (2) documents and exhibits that identify the terms of the Settlement, including the Settlement itself. (Application; Notice of Lodgment, pg. 2.) Prince Khalid moves for an order to seal on the grounds the terms of the Settlement are confidential and not relevant to Midwell’s motion for cost of proof sanctions since Midwell was not a party to the Settlement. Prince Khalid argues the overriding interest in sealing the records overcomes the right to public access given the records contain the confidential terms of the Settlement. (Application, pgs. 4-5; Decl. of Coppola 16.)

    CRC Rule 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”

    CRC Rule 2.551(b)(1) provides, as follows: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”

    CRC Rule 2.550(d) provides, as follows: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

    Prince Khalid sufficiently demonstrated that the redacted information contained in Plaintiff’s opposition and supporting exhibits amounts to the confidential terms of the Settlement, such that there exists an overriding interest that overcomes the right of the public access to the records; the overriding interest supports sealing the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. (Application, pgs. 4-5.) In addition, Prince Khalid demonstrated the redacted information (references to the terms of the Settlement) is not at issue in the instant motion brought by Midwell given Midwell was not a party to the Settlement. As such, the proposed sealing is sufficiently narrowly tailored to protect the overriding privacy interests of Prince Khalid while also allowing public access.

    Based on the foregoing, Prince Khalid’s unopposed application to seal is granted.

  2. Motion for Cost of Proof Sanctions

    Midwell moves for an award of cost of proof sanctions against Plaintiff in the amount of $74,231.69 ($69,532.50 in attorneys’ fees and $12,727.06 in costs) based on Plaintiff’s failure to admit as true Requests for Admission (“RFAs”) later proven to be true by Midwell. (Notice of Motion, pg. 2; C.C.P. 2033.420.) In reply, Midwell asserts that in light of Plaintiff’s failure to object and/or move to tax the $12,727.06 in costs set forth in Midwell’s 10/5/21 Memorandum of Costs within the time frame set forth in CRC Rule 3.1700(b)(1), these costs are not disputed and as such, only the remaining fees at issue in the instant motion are the attorneys’ fees in the amount of $69,532.50. (Reply, pg. 1.)

    Plaintiff’s 9/10/21 request for judicial notice is denied as to the document in the instant case file, namely, Midwell’s 9/12/19 Notice of Ruling on Midwell’s Motion for Summary Judgment (“MSJ”), for which there is no need to take judicial notice because the Court can always review the file for the case at hand. (RJN, No. 1, Exh. A.)

    Midwell’s 12/29/21 evidentiary objections to the Declaration of Robert Simon (“Simon”) are sustained as to Nos. 1, 2, and overruled as to Nos. 3, 4, 5, 6 and 7.

    Background

    On October 6, 2017, Plaintiff filed his initial complaint in this action against Midwell, Prince Khalid, and AMGroup (collectively, “Defendants”) for causes of action relating to Prince Khalid’s alleged assault of Plaintiff. The alleged assault occurred while Plaintiff was performing security services for Prince Khalid, for which he was hired by AmGroup and while on property owned by Midwell. Plaintiff’s action against Midwell, which included causes of action for negligence and negligent infliction of emotional distress (“NIED”), was based on Midwell’s ownership of the property where the incident took place. On September 12, 2019, the Court granted Midwell’s motion for summary judgment as to Plaintiff’s complaint. On February 13, 2020, Plaintiff filed a dismissal of AMGroup from the action, which was entered on February 18, 2020. On August 23, 2021, Midwell filed a [Proposed] Judgment in its favor based on the Court’s September 12, 2019 grant of Midwell’s motion for summary judgment against Plaintiff, which was entered as the Court entered on September 23, 2021 (“Judgment”). Midwell filed the instant motion for cost of proof sanctions on September 7, 2021. On October 5, 2021, Midwell filed a Memorandum of Costs seeking $12,727.06 in costs.

    Cost of Proof Sanctions

    C.C.P. 2033.420(a) provides, as follows: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Emphasis Added.)

    C.C.P. 2033.420(b) provides, as follows: “The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no substantial importance. (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. (4) There was other good reason for the failure to admit.”

    Costs may be awarded when the requesting party proves the matter at trial or on a motion for summary judgment. (Barnett v. Penske Truck Leasing Co., L.P. (2001) 90 Cal.App.4th 494, 497-498.)

    Cost-of-proof sanctions are authorized only where the responding party refused to admit (i.e., denied) a request for admission. If the responding party simply objected or gave an incomplete answer, the proponent must first move to compel further answers. (See Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636-637 (“At trial, however, Derby failed to produce any witness regarding the defect, causation or future medical care issues. The trial court nonetheless denied Wimberly’s posttrial section 2033, subdivision (o) motion, finding Derby ‘had reasonable basis, the anticipated testimony of Expert, David Douglass, for denying the request for admissions regarding the defect and the causation. [Derby] objected to the request for admission regarding future medical care which was unchallenged by [Wimberly].’ We agree Wimberly is not entitled to costs associated with the medical care issue, because he made no motion to compel a further response after Derby objected to the request for admission. We conclude, however, the court erred in finding, on this record, that Derby had a reasonable basis for its denial of defect and causation. Failure to award Wimberly expenses incurred in proving the fork assembly was defective and the legal cause of his injuries, is an abuse of discretion.”)(Citations Omitted). See also American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal.App.4th 247, 268 (finding responses, with objections, constituted unequivocal denials, supporting cost-of-proof sanctions).)

    The sanction is limited to reasonable expenses incurred after the denial. Moreover, the sanction is limited to expenses incurred in “proving the matters denied.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736.)

    Midwell argues it has proven, by way of its MSJ, that Plaintiff does not possess any evidence legitimizing his claim against Midwell, whose sole relationship to the incident is its ownership of the real property where the incident occurred. (Motion, pg. 2.) Midwell’s motion is based on Plaintiff’s responses to Requests for Admission Nos. 1, 2, 3, 4, 5, 6, 7, and 8. The Requests for Admission are as follows:

    No. 1: “Admit that [Midwell] did not own the Vehicle at the time of the Incident…”

    No. 2: “Admit that [Midwell] did not control the Vehicle at the time of the Incident.”

    No. 3: “Admit that no unsafe conditions existed on the Property in a manner that contributed to the occurrence of the Incident…”

    No. 4: “Admit that prior to the Incident, [Midwell] was not aware of any unsafe conditions that existed on the Property that contributed to the occurrence of the Incident.”

    No. 5: “Admit that [Midwell’s] use of the Property did not contribute to the occurrence of the Incident.”

    No. 6: “Admit that [Midwell’s] maintenance of the Property did not contribute to the occurrence of the Incident.”

    No. 7: “Admit that [Midwell] had no opportunity to prevent the occurrence of the Incident.”

    No. 8: “Admit that [Midwell] had no reason to anticipate the occurrence of the Incident.”

    (Decl. of Coppola 5, Exh. B.)

    Plaintiff denied each of the RFAs. (Decl. of Coppola 6, Exh. C.) Midwell submitted evidence that during Plaintiff’s May 21, 2019 deposition, he failed to support any claim against Midwell. (Decl. of Coppola 8-9, Exhs. D, E.) Midwell asserts that given the lack of evidence submitted in opposition to Midwell’s MSJ and Plaintiff’s Deposition testimony, Plaintiff could not have had a “reasonably good faith belief” at the time he responded to the RFAs that they would be established against Midwell. (Motion, pg. 6.) Midwell also argues the RFAs were of substantial importance to the outcome of the case since they pertain to the issues of duty, breach, and causation with respect to whether Plaintiff can establish his negligence cause of action against Midwell. (Motion, pgs. 6-7.) Finally, Midwell notes that Plaintiff did not attempt to withdraw his denials to the RFAs before Midwell’s MSJ pursuant to C.C.P. 2033.300. (Motion, pgs. 7-8.) The Court notes in its ruling on Midwell’s MSJ, the Court granted the MSJ by way of granting adjudication of Issues Nos. 1 and 4, both of which addressed whether Plaintiff could establish Midwell owed Plaintiff a duty for purposes of the negligence and NIED causes of action, without reaching the other issues including whether Plaintiff could establish breach or causation with respect to the causes of action.

    Midwell asserts it is entitled to reasonable expenses incurred from the date Plaintiff failed to timely serve his responses to the RFAs through the Court’s order on Midwell’s MSJ. (Motion, pg. 8.) Midwell asserts it incurred $74,231.69 to prove the truth of the matters denied by Plaintiff, of which $69,532.50 was for fees and $4,699.19 for costs. (Motion, pg. 8, Decl. of Coppola 11.) Midwell asserts the work included correspondence with counsel, status updates, Plaintiff’s deposition, witness/PMK depositions, retaining experts, propounding discovery, motions to compel, and drafting the MSJ. (Decl. of Coppola 11.) In support of the motion, Carlo A. Coppola (“Coppola”) declared his firm’s billing rates are $275/hour for Partners, $245/hour for Senior Counsel, and $220/hour for Associates and the firm expended 14.2 Partner hours, 240.3 Senior Counsel hours, plus 30.7 Associate hours, which amounts to $69,532.50. (Decl. of Coppola 11.) Coppola declares such fees were necessary, “to prove the above facts wrongfully denied by Plaintiff.” (Decl. of Coppola 11.) Midwell does not provide billing statements or cost invoices in support of these figures, but asserts it can produce all of the billing statements received from WSHB (“Midwell’s Counsel”) for in camera review if requested by the Court. (Decl. of Coppola 12.)

    In opposition, Plaintiff asserts the instant motion should be denied because it was filed for an improper retaliatory purpose. Specifically, Plaintiff asserts that on June 29, 2021, Plaintiff accepted Prince Khalid’s C.C.P. 998 Offer to Compromise (“998 Offer”), which was conditioned upon a Release; however, a disagreement arose relating to the terms of the Release, in response to which Prince Khalid filed a Section 998 Motion to Enforce Judgment and Midwell filed the instant motion. (Opposition, pg. 6.) [The Court notes pages 3-6 of Plaintiff’s opposition are redacted and filed under seal; however, Plaintiff does not redact his assertion that he entered into a settlement agreement with Prince Khalid. The Court also notes that as of the date of the 998 Offer, Prince Khalid was the only remaining defendant against whom Plaintiff’s case was still being pursued since AMGroup had been dismissed in February 2020 and Midwell had prevailed on its motion for summary judgment in September 2019.] Plaintiff asserts the bad faith retaliatory nature of the motion is further demonstrated by its filing after the date of the Release in the Settlement given Midwell has the same counsel, insurer, and interests as Prince Khalid. (Opposition, pg. 7.) The Court notes Carlo Alessandro Coppola (“Coppola”) of Wood, Smith, Henning & Berman LLP (“WSHB”) is the attorney of record for Prince Khalid and Midwell as well as the attorney of record for AMGroup, which was most recently represented by Pool & Shaffery, LLP.

    Plaintiff also argues the Court does not have jurisdiction to rule on the instant motion because Plaintiff dismissed the entire action with prejudice on December 21, 2021. (Opposition, pgs. 7-8.) However, Plaintiff has only filed a Request for Dismissal of the entire action with prejudice; contrary to Plaintiff’s assertion, dismissal of the entire action has not been entered on the request.

    Midwell is not entitled to cost-of-proof sanctions with respect to the at-issue RFAs. As a preliminary matter, Midwell did not prove the matters asserted in the RFAs. In granting Midwell’s MSJ, the Court ruled Midwell had met its burden of establishing Plaintiff could not prove the existence of a duty based on the assertion that no duty can be imposed on the owner of a nonpublic residential property against social guests of the owners who live or whose tenants rent there. (Ruling, pgs. 5-6; citing Eric J. v. Betty M. (1999) 76 Cal.App.4th 715.) The Court noted Midwell’s evidence that shortly after Plaintiff had parked on the subject property owned by Midwell after driving Prince Khalid from a movie theater, Prince Khalid placed Plaintiff in a headlock. (Ruling, pg. 6.) The Court found Plaintiff failed to submit evidence creating a triable issue of fact with respect to the existence of a duty. (Ruling, pgs. 7-8.) Midwell did not establish any of the following by way of its summary judgment motion: (1) that it did not own or control the subject vehicle at the time of the incident; (2) that no unsafe conditions existed at the property in a manner that contributed to the incident; (3) the Midwell was not aware of unsafe conditions at the property prior to the incident that contributed to its occurrence; (4) that Midwell’s use or maintenance of the property did not contribute to the incident; (5) that Midwell had no opportunity to prevent and/or no reason to anticipate the incident.

    Even if Midwell were to establish that it proved the matters asserted in the RFAs by way of its summary judgment motion and that Midwell is not barred from receiving sanctions for any of the reasons set forth in C.C.P. 2033.420(b), Midwell did not submit sufficient evidence suggesting the amount requested constitute the reasonable expenses incurred in making proof of the matters denied. (See C.C.P. 2033.420(a).) Given Midwell’s Counsel has also represented Prince Khalid throughout the course of the litigation, the Declaration of Coppola purporting to support that the claimed attorneys’ fees incurred were only incurred as to Midwell and not as to work conducted on behalf of Prince Khalid during this time is insufficient. Notably, Prince Khalid also moved for summary judgment against Plaintiff in 2019, a motion the Court denied on September 12, 2019. Fees incurred in this action during the relevant time period, between January 2019 and September 2019, would have necessarily been for both Prince Khalid and Midwell, and Midwell fails to submit evidence suggesting the fees incurred on its behalf have been apportioned. Moreover, no time records are produced, but the assertion of total hours incurred by Partners, Senior Counsel, and Associates leaves the Court is unable to determine whether the hours were actually spent in proving the truth of the denied RFAs Cost-of-proof sanctions are limited to expenses incurred in “proving the matters denied.” (Garcia v. Hyster Co., supra, 28 Cal.App.4th at 736.) In addition, Plaintiff asserts Midwell is not entitled to fees incurred in taking Plaintiff’s deposition both because the deposition was taken not only for the benefit of Midwell alone, but also because the deposition was taken before Plaintiff submitted responses to the at-issue RFAs, and as such cannot be included in the “cost of proof” in rebutting the denials. (Opposition, pg. 10.) Midwell did not establish that the attorneys’ fees are limited to work conducted in pursuit of proving the matters denied in the at-issue RFAs.

    Based on the foregoing, Midwell’s motion for cost-of-proof sanctions is denied.

    Dated: January , 2022

    Hon. Monica Bachner

    Judge of the Superior Court



Case Number: ****8666    Hearing Date: September 15, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

MARTIN BERTUCCI,

vs.

HIS ROYAL HIGHNESS PRINCE KHALID BIN FAISAL BIN SULTAN BIN ABDULAZIZ AL SAUD, et al.

Case No.: ****8666

Hearing Date: September 15, 2020

Plaintiff’s motion to quash deposition subpoena is granted.

Plaintiff’s request for monetary sanctions is denied.

Plaintiff Martin Bertucci (“Plaintiff”) moves for an order quashing the service of the deposition subpoena for personal appearance on non-party Kris Herzog (“Herzog”), Plaintiff’s expert consultant, issued by Defendant His Royal Highness Prince Khalid Bin Faisal Bin Sultan Bin Abdulaziz Al Saud (“Defendant”) pursuant to C.C.P. ;1987.1, or alternatively, a protective order preventing said deposition. (Notice of Motion, pgs. 1-2.) Plaintiff also requests an award of monetary sanctions against Defendant and his attorneys of record in the amount of $3,200.

Plaintiff’s 9/8/20 evidentiary objections to the Declaration of Carlo A. Coppola (“Coppola”) are overruled as to No. 1 and sustained as to Nos. 2-7. (Decl. of Coppola ¶¶2(a)-(f).) Plaintiff objects to portions of Coppola’s declaration that set forth statements made by an anonymous caller who telephoned Coppola on May 18, 2020. Specifically, Plaintiff objects to statements the anonymous caller made on his own behalf as well as statements he made relating to statements and/or acts of Herzog and/or Plaintiff. However, since Defendant offers these statements for the truth of the matter they assert, they are inadmissible hearsay.

Background

On October 6, 2017, Plaintiff filed his initial complaint in this action against Defendant, Defendant AmGroup, Inc. (“AmGroup”), and other named defendants for causes of action relating to Defendant’s alleged assault of Plaintiff. (Motion, pg. 3.) Plaintiff’s action against AmGroup, the entity that had hired Plaintiff to work Defendant’s security detail, involved allegations of deficient security protocols and hiring practices. (Motion, pg. 3.) On August 26, 2019, Plaintiff designated Herzog as an expert who would testify on applicable standards of hiring and retention of private security personnel. (Motion, pgs. 3-4; Decl. of Conroy, Exh. 1.) On February 13, 2020, Plaintiff dismissed AmGroup from the action and on February 14, 2020, Plaintiff’s counsel de-designated Herzog as a testifying expert. (Decl. of Conroy, Exh. 2.)

As background for the instant motion, but not introduced as evidence, Defendant contends that on May 18, 2020, Defendant’s counsel received an anonymous call from an individual claiming to have information relating to statements Plaintiff allegedly made to Herzog about the merits of his action, statements Herzog allegedly made to Defendants’ counsel Bret Geckeler (“Geckeler”) and Tom Conroy (“Conroy”), as well as other statements allegedly made by Herzog to the Caller. (Opposition, pgs. 2-3.)

On June 8, 2020, Defendant served a Notice of Deposition by Subpoena of Herzog (“Notice”) on Plaintiff for July 1, 2020. The Court notes the Notice did not indicate the purpose of the deposition or the scope of the questions to be asked of Herzog, at this stage, an un-designated expert witness. On June 9, 2020, Plaintiff served Defendant with a formal objection to the Notice, which asserted the Notice violated C.C.P. ;2034.210, sought privileged attorney work product, and was vague, overbroad, and irrelevant. (Decl. of Conroy, Exh. 5.) Plaintiff filed the instant motion to quash service of the Notice on June 24, 2020. On June 26, 2020, the Court granted Plaintiff’s ex parte application to stay the subpoena of Herzog until after the Court ruled on the instant motion.

Based on the parties’ meet and confer correspondence, Plaintiff’s counsel first learned of the anonymous call as the apparent basis for Defendant’s subpoena of Herzog at the hearing on the ex parte application. (Decl. of Coppola ¶4, Exh. A.) In addition, Plaintiff did not learn the substance of the anonymous call until August 11, 2020, when Coppola emailed Plaintiff a summary in response to Plaintiff’s June 26, 2020 email requesting information about the call pursuant to the Court’s direction to meet and confer. (Reply, pg. 6; Decl. of Conroy ¶5, Exh. B; Decl. of Coppola ¶4, Exh. A.) Defendant filed his opposition on September 1, 2020 and Plaintiff filed his reply on September 8, 2020.

The Court notes Plaintiff’s motion was filed prior to being aware of the anonymous call Defendant received regarding Herzog and, accordingly, that Defendant sought to depose Herzog with respect to substance of the anonymous call. Plaintiff’s motion therefore addresses areas of testimony rendered moot by the intended limited scope of the deposition, such as his expert opinions. In addition, for the first time in opposition, Defendant asserts he seeks only a limited deposition of Herzog, excluding all references to his expert opinions and limited to Herzog’s conversations and communications with Plaintiff. (Opposition, pg. 4.)

Motion to Quash

C.C.P. ;1987.1(a) provides, in pertinent part, as follows: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things… at the taking of a deposition, the court, upon motion reasonably made by [a party]…, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Plaintiff is entitled to an order quashing service of the Notice of Deposition. Even as limited by Defendant, deposition of Herzog’s communications and/or conversations with Plaintiff seeks testimony protected by the work product doctrine. In addition, to the extent Defendant asserts the crime-fraud exception warrants piercing the privilege of the work product doctrine, Defendant did not satisfy his burden of justifying the exception. (Opposition, pgs. 4-5.) Here, Defendants have failed to present any admissible evidence that the crime-fraud exception applies, rather Defendant’s argument is based upon unreliable, anonymous hearsay.

Herzog’s designation as an expert was withdrawn before it was known with reasonable certainty he would testify as an expert and as such, his communications with Plaintiff are protected. (See Shooker v. Superior Court (2003) 111 Cal.App.4th 923, 928-930 [“The designation of a party as an expert trial witness is not in itself an implied waiver of the party's attorney-client privilege because his initial status is that of a possible expert witness. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure; if the party provides privileged documents or testifies as an expert (such as by stating his opinion in a declaration or at a deposition) the privilege is waived.”].) Here, the parties do not dispute Herzog had not yet been deposed and had not stated his opinion in a declaration.

Defendant asserts the work product protection does not apply to Herzog because it was reasonably certain Herzog would testify at the time Plaintiff removed his expert designation and because there is no evidence to suggest Herzog is currently retained as Plaintiff’s consultant. (Opposition, pgs. 6-7, citing County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 656.) However, Defendant’s assertion it was reasonably certain Herzog would testify is conclusory, especially given the dismissal of AmGroup rendered Herzog’s potential testimony moot. In addition, as Defendant is seeking testimony protected by the work product doctrine, Plaintiff does not have the evidentiary burden of submitting evidence Herzog is currently retained as Plaintiff’s consultant. Defendant has not submitted evidence suggesting Herzog is not retained as a consultant. In addition, County of Los Angeles v. Superior Court, supra, 222 Cal.App.3d at 657–658 only addresses a situation in which an opposing party’s communication with an un-designated expert retained as a consultant is barred; but the Court of Appeal does not address whether such communication would be barred if expert had not been retained as a consultant. Moreover, even if Herzog is not currently retained as Plaintiff’s consultant, his testimony is protected given Plaintiff withdrew Herzog’s designation before it was known with reasonable certainty Herzog would actually testify. (See Shooker v. Superior Court, supra, 111 Cal.App.4th at 928-930.)

Defendant also argues the work product protection does not apply to an expert whose designation was withdrawn when the designation was withdrawn to deliberately suppress evidence. (Opposition, pgs. 7-10.) However, Defendant has not submitted evidence suggesting Herzog’s designation was withdrawn to deliberately suppress evidence. Notably, in County of Los Angeles v. Superior Court, supra, 222 Cal.App.3d at 656, the Court of Appeal found the expert designation had not been withdrawn to suppress evidence, as asserted by the plaintiff in that case, given the facts differed from Williamson v. Superior Court (1978) 21 Cal.3d 829, 836, and as such, the court concluded the County could withdraw its previously designated witness before the expert’s deposition. The facts here differ significantly from Williamson v. Superior Court, supra, 21 Cal.3d 829, in which the court concluded an agreement between two defendants to withdraw an expert and withhold his report in exchange for indemnification was essentially an agreement to suppress evidence and, as such, against public policy. There are no such facts underlying the withdrawal of Herzog’s designation in the instant matter, which occurred after Plaintiff dismissed AmGroup as a defendant, rendering Herzog’s planned testimony moot. Defendant submits no evidence suggesting Williamson applies. Defendant also relies on Petterson v. Superior Court (1974) 39 Cal.App.3d 267, 273 in which the court allowed the deposition of an expert based on evidence suggesting the expert had been designated for the purpose of preventing his testimony. (Opposition, pgs. 8-9.) However, Defendant has not submitted admissible evidence suggesting the withdrawal of Herzog’s designation was for an improper purpose of suppressing relevant damaging evidence; rather, Defendant’s assertion is based on hearsay and speculation.

Based on the foregoing, Plaintiff’s motion to quash the deposition subpoena is granted.

Sanctions

Plaintiff requests monetary sanctions against Defendant in the amount of $3,200. Defendant does not address Plaintiff’s request for monetary sanctions in opposition, and Plaintiff does not discuss the request in reply.

C.C.P. ;1987.2(a) provides as follows: “[I]n making an order pursuant to [a motion to quash deposition subpoena], 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.”

Plaintiff is not entitled to an award of monetary sanctions against Defendant. While Plaintiff prevailed on the motion, the Court does not find the motion was opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

Based on the foregoing, Plaintiff’s request for monetary sanctions is denied.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court



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