Robert Kimball vs City of Santa Barbara et al

Case Number

22CV01181

Case Type

Hearing Date / Time

Fri, 02/23/2024 - 10:00

Nature of Proceedings

Motion: Protective Order

Tentative Ruling

For all reasons discussed herein, plaintiff’s motion for a protective order is denied.

Background:

On March 25, 2022, plaintiff Robert Kimball filed a complaint against defendants the City of Santa Barbara (the City) and C.A. Rasmussen, Inc. (Rasmussen), alleging three causes of action: (1) dangerous condition of public property; (2) negligence; and (3) premises liability. As alleged in the complaint:

On February 28, 2021, plaintiff was riding his bicycle on Modoc Road north of the intersection with Ferrara Way in the City of Santa Barbara, County of Santa Barbara, State of California when he encountered temporary cones changing the road configuration and shifting vehicle traffic in his direction. (Complaint, ¶¶ 8, 9.) The traffic cone configuration caused a vehicle approaching from the opposite direction to move toward plaintiff’s bicycle lane, forcing plaintiff to his right which caused plaintiff to hit either a cone or the new curb construction and tumble violently onto gravel and concrete. Plaintiff personal injuries including a fractured neck, severe right arm injury, nerve damage, and numerous scrapes and contusions throughout his body. (Complaint, ¶ 9.)

The City had contracted with Rasmussen to perform improvements on Las Positas and Modoc Roads as part of the “Las Positas & Modoc Roads Multiuse Path Project” (the project). (Complaint, ¶ 10.) As part of the project, Rasmussen submitted a traffic control plan to the City which the City approved, and was in charge of traffic control during the construction of the project. (Complaint, ¶ 11.) The cone and traffic configuration which caused plaintiff’s accident was placed by Rasmussen as part of the traffic control plan approved by the City. (Complaint, ¶ 13.) In addition to the dangerous condition of the traffic and bike lane configuration at the site of the incident, the roadway was not sufficiently illuminated. (Complaint, ¶ 15.)

On May 18, 2022, the City filed its answer to plaintiff’s complaint generally denying its allegations and asserting fourteen affirmative defenses. Also on May 18, 2022, the City filed a cross-complaint (the City cross-complaint) alleging causes of action for express contractual indemnity, equitable indemnification, and apportionment of fault against Rasmussen and Tierra Contracting, Inc. (Tierra).

On May 24, 2022, Rasmussen filed its answer to plaintiff’s complaint generally denying its allegations and asserting thirteen affirmative defenses.

On May 27, 2022, plaintiff filed an amendment to the complaint substituting Tierra for the fictitious name Doe 1 wherever it appears in the complaint.

On June 23, 2022, Rasmussen filed its answer to the City cross-complaint generally denying its allegations and asserting twenty-two affirmative defenses.

On August 4, 2022, Tierra filed its answer to plaintiff’s complaint generally denying its allegations and asserting fifty-two affirmative defenses, and its answer to the City cross-complaint also generally denying its allegations and asserting forty-five affirmative defenses.

On September 27, 2023, Tierra filed a motion for summary judgment, or, in the alternative, summary adjudication of the negligence and premises liability causes of action alleged in the complaint on the grounds that plaintiff lacks and cannot obtain evidence necessary to prove that Tierra breached a duty owed to plaintiff or evidence establishing that Tierra had ownership, possession, or control of the premises where the incident occurred. The motion was opposed by plaintiff and Rasmussen.

On December 15, 2023, the court issued its Minute Order denying the Tierra motion for summary judgment.

Court records reflect that on February 8, 2024, the court entered an order pursuant to the parties’ stipulation continuing the expert discovery cut-off in this matter to March 7, 2024.

On February 1, 2024, plaintiff filed a motion under Code of Civil Procedure Section 2034.250, subdivision (b)(5) and (6), for a protective order that “some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts … be made by any side so created”, that Tierra and the City be deemed the same “side” based on identity of interests, that Tierra and the City be limited to one accident reconstruction expert and one construction expert, and that all three defendants be precluded from designating cumulative experts and limited to one human factors expert. (Notice at ¶¶ 1-3.) The City, Rasmussen, and Tierra (collectively, defendants) have each filed separate oppositions to plaintiff’s motion.

In support of the motion, plaintiff submits the declaration of his counsel, Jonathan D. Miller, who declares that the parties exchanged expert witness designations on January 18, 2024. (Miller Dec., ¶ 5 & Exhs. 1-4.) Plaintiff designated eight retained experts. (Id., Exh. 1 at pp. 1-2.) Available information demonstrates that the City designated eight retained experts, that Rasmussen designated six retained experts, and that Tierra designated six retained experts. (Id. at Exhs. 2-4.)

Available information further demonstrates that the City, Rasmussen, and Tierra each designated as retained experts the following three persons: Rocco Richard Calderone (Calderone); Mary Jesko, (Jesko); and Jules H. Kamin (Kamin). (Miller Decl., Exhs. 2-4.) In addition, the City and Tierra have each designated Deborah L. Noonkester (Noonkester) and Jessica Bohne (Bohne) as retained experts. (Id. at Exhs. 2 & 4.) The City also designated John A. Martinet (Martinet), Christian Engelmann (Engelmann), and Gerald Bretting (Bretting) as its retained experts. (Id. at Exh. 2.) Further, Rasmussen has designated Jeffrey S. Bonsall (Bonsall), James C. Jeffery (Jeffery), and David Krauss (Krauss) as retained experts. (Id. at Exh. 3.) Tierra has designated as an additional retained expert Daniel Melcher (Melcher). (Id. at Exh. 4.) Collectively, defendants have designated 12 retained experts. (Id. at ¶ 5.)

Plaintiff asserts that defendants’ designation of four accident reconstruction experts (Bonsoll, Krauss, Melcher, and Bretting) and three construction experts (Jeffery, Martinet, and Engelmann) are at issue in the present motion. (Miller Decl., ¶ 6(i) & (ii).) Plaintiff’s counsel contends that the anticipated testimony of each set of experts is duplicative. (Id. at ¶ 8.) Plaintiff’s counsel met and conferred with counsel for each defendant to request that defendants voluntarily withdraw the duplicative experts but defendants have not agreed to do so. (Ibid.)

Analysis:

“A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.250, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Code Civ. Proc., § 2034.250, subd. (b).) Relevant here, a protective order may include a direction that “some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts as described in subdivision (b) of Section 2034.210 be made by any side so created” and that “a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210.” (Code Civ. Proc., § 2034.250, subd. (b)(5) & (6).)

Plaintiff contends the City and Tierra are parties to an express agreement under which Tierra must indemnify the City for any liability incurred by the City in this matter. Plaintiff further contends that in November 2023, eighteen months after the City filed its cross-complaint, Tierra agreed to defend and indemnify the City. Therefore, plaintiff argues, the City and Tierra have a unity of interests in defending this action against plaintiff’s claims and are on the same “side” for purposes of Code of Civil Procedure section 2034.250, subdivision (b)(5) and (6).

Plaintiff further contends that the City also has an indemnity agreement with Rasmussen. Plaintiff asserts that the defense and indemnity language, which are required in the City’s contracts, is the same for Rasmussen and Tierra. Therefore, plaintiff anticipates that Rasmussen will defend and indemnify the City by the time this case presents at trial. Plaintiff further asserts that, presumably, Rasmussen will at some point split the defense and indemnity of the City with Tierra. Therefore, plaintiff argues, Rasmussen should at some point in the future share the same unity of interests with the City and Tierra.

In addition, plaintiff asserts that accident reconstruction experts Bonsoll, Krauss, Melcher, and Bretting will offer the same testimony. Plaintiff further asserts that construction experts Jeffery, Martinet, and Engelmann will also offer the same testimony. Because the anticipated testimony of the four accident reconstruction experts and three construction experts designated in this matter is nearly identical, plaintiff argues, permitting defendants to designate multiple experts in each specialty will violate the rule against one expert per specialty per side. Plaintiff also asserts that the designations of experts in the same field of specialty will cause plaintiff unwarranted burden and expense because plaintiff will be required to expend thousands of dollars deposing these witnesses.

In its opposition to the motion, the City asserts that the location of the subject incident was the site of two separate construction projects. (See also Rasmussen Opp. at p. 3, ll. 6-10 [describing two separate projects at the site of the incident, one handled by Rasmussen and the other by Tierra].) The City does not dispute that its separate contracts with Tierra and Rasmussen each contain an indemnity provision whereby Tierra and Rasmussen have agreed to indemnify and defend the City for claims “arising out of or in connection with” Tierra or Rasmussen’s work under their respective contracts.

The City further asserts that while Tierra and Rasmussen’s insurance carriers have accepted the City’s tender of defense in this matter, neither Tierra, Rasmussen, or the insurance carriers have agreed to indemnify the City for any verdict that may be entered against the City. Instead, the parties’ insurance carriers have taken the position that the issue of indemnity remains unresolved because that issue is based on any liability of Tierra and Rasmussen. Therefore, the City asserts, the experts designated by each party will present opinions specific to each defendant.

The City further contends that if Tierra and Rasmussen successfully defend this action, this could adversely affect the City’s right to indemnification from these parties. For this reason, the City argues, defendants’ defenses are not identical nor aligned as plaintiff suggests.

In its opposition to the motion, Rasmussen does not dispute that it is defending the City in this matter. However, for the same reasons offered by the City, Rasmussen contends that there does not exist a unity of interest as to liability. By way of example, Rasmussen asserts that the City contends that any dangerous condition at the incident location was due to traffic configurations put in place by either Tierra or Rasmussen, whereas Tierra contends that any dangerous condition present at the subject location was due to Rasmussen’s traffic control devices and their placement. Rasmussen contends that any dangerous condition was due to the City failing to properly coordinate traffic control as between Rasmussen and Tierra and Tierra’s failure to properly restripe lane lines, among other things. (See Tingen Decl., Exhs. 1, 2 & 3 [defendants’ respective responses to plaintiff’s form interrogatory no. 16.1 setting forth defendants’ contentions regarding causation and liability for the subject incident].)

Rasmussen also argues that requiring it to de-designate any of its experts before the depositions of all liability experts have concluded would be unduly prejudicial because Rasmussen would be forced to share an expert retained by another party who may have opinions adverse to Rasmussen. Should that occur, Rasmussen argues, it will have no ability to rebut any such adverse opinion with its own expert’s testimony.

Tierra also does not dispute that it has accepted the City’s tender of defense and agreed to defend the City in this action. Tierra contends, however, that liability is still under investigation. (See Kaufman Decl., ¶¶ 7, 9, 16, 19.) Tierra also asserts that the location of the subject incident involved two separate construction projects progressing at various times in the weeks leading up to the incident. Based on the time within which Tierra completed its work, Tierra contends that traffic control at the subject location was solely the responsibility of Rasmussen. Tierra also notes that its motion for summary judgment filed on September 27, 2023, in this matter was opposed by Rasmussen which Tierra contends demonstrates that the parties are adverse. Though Tierra agreed to share certain damages experts with Rasmussen, all liability experts were kept separate as defendants maintain separate positions as to assignment of liability in this matter. (Id. at ¶ 19.)

“Generally, indemnity is defined as an obligation of one party to pay or satisfy the loss or damage incurred by another party.” (Rideau v. Stewart Title of California, Inc. (2015) 235 Cal.App.4th 1286, 1294.) With respect to the scope of a contractual duty to indemnify, unless the language of the contract demonstrates a contrary intent, “the law will imply, in an agreement to indemnify, an agreement to defend actions brought against the indemnitee ‘in respect to the matters embraced by the indemnity.’ [Citation.]” (City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 249 (Bell).)

“However, sometimes it will not be clear whether an action brought against the indemnitee is within the scope of the indemnity until after the underlying action has been resolved. In those situations, the duty to defend nonetheless arises. That is to say, the law implies in every indemnity contract, unless the contract provides to the contrary, the duty to defend claims which, at the time of tender, allege facts that would give rise to a claim of indemnity.” (Bell, supra, 220 Cal.App.4th at p. 249, original italics, citing Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 564 (Crawford) [“the duty to defend upon the indemnitee’s request, … is distinct from, and broader than, the duty … to reimburse an indemnitee’s defense costs as part of any indemnity otherwise owed”].)
 

Though plaintiff contends that Tierra and Rasmussen’s defense of the City under a contractual indemnity agreement demonstrates a unity of interest between defendants, available information appears to indicate that any statutory or contractual duty to defend the City arose upon Tierra and Rasmussen’s proper tender without respect to whether indemnity under the parties’ respective contracts was owed and notwithstanding whether it is later determined that Tierra or Rasmussen were not negligent. (See Crawford, supra, 44 Cal.4th at p. 553.) Stated another way, to the extent that plaintiff’s action is founded on claims alleging damage or loss arising from Tierra or Rasmussen’s negligent conduct, the information indicates that these parties had a contractual obligation to defend the City with respect to claims embraced by the parties’ indemnity agreement regardless of the outcome of the litigation. (Ibid.) The fact that Tierra or Rasmussen may or do owe a duty to defend the City does not require the court to conclude that there exists an identity of interest.

Further, Tierra and Rasmussen’s acceptance of the City’s tender of defense of this matter suggests at most that there exists a potential for indemnity. However, these facts are also insufficient to demonstrate an identity of interest between defendants that would justify a protective order directing that these parties be divided into a common side for purposes of Code of Civil Procedure section 2034.250, subdivision (b)(5). (See Safeco Ins. Co. of America v. Fireman’s Fund Ins. Co. (2007) 148 Cal.App.4th 620, 629 [a duty to defend may exist even when coverage for the claim is in doubt].) Plaintiff fails to sufficiently explain why any duty to defend the City alone demonstrates an identity of interest as between defendants.

Moreover, there exists no information or evidence to demonstrate that Tierra or Rasmussen have agreed to indemnify the City. (See Buss v. Superior Court (1997) 16 Cal.4th 35, 46 [a duty to indemnify arises “only after liability is established”]; see also Centex Golden Const. Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 997 [not every claim for indemnity requires a showing of fault].) Available information offered by defendants as further discussed above demonstrates that defendants each contend that they are not responsible for plaintiff’s injuries and that other persons contributed to the occurrence of the subject incident and the injuries claimed by plaintiff irrespective of whether Tierra and Rasmussen have agreed to defend the City pursuant to a contractual indemnity provision. As noted above, a duty to defend may arise notwithstanding whether coverage for the City’s claims exists. For these additional reasons, there exists insufficient evidence to demonstrate an identity of interest justifying a protective order under Code of Civil Procedure section 2034.350., subdivision (b)(5) & (6).

Plaintiff also contends that he will be forced to expend significant money to depose the experts designated by defendants and that the though the anticipated testimony will be, according to plaintiff, identical. Available information demonstrates that the expected testimony of the experts at issue in the present motion is not necessarily identical in all respects.

Some burden is inherent in all discovery. (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418 (West Pico).) Though a court has broad discretion to control the course of discovery and may limit its scope if the burden or expense outweighs its benefit (see Code Civ. Proc., § 2017.020, subd. (a)), the party claiming the burden has an obligation to supply the basis for this determination.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Apart from asserting conclusory statements with respect to the expense of conducting expert discovery, plaintiff offers no evidence demonstrating any unreasonable or atypical financial burden considering the claims asserted in this matter, no evidence demonstrating that defendants intend to create any unreasonable burden, or that any burden is incommensurate with the results sought, (West Pico, supra, 56 Cal.2d at p. 417.)

On February 20, 2024, plaintiff late-filed a reply brief responding to defendants’ oppositions to the motion. (See Code Civ. Proc., § 1005, subd. (b) [requiring reply papers to be filed at least five court days prior to the hearing].) “A court has broad discretion to accept or reject late-filed papers….” (Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1289 [also noting the general rule that new evidence is not permitted on reply].) Even if the court were to consider plaintiff’s late-filed reply brief, the factual and legal arguments offered therein do not change the court’s analysis of the issues presented in the motion.

For all reasons discussed above, plaintiff has failed to demonstrate good cause for a protective order under Code of Civil Procedure section 2034.250, subdivision (b)(5) and (6). Therefore, the court will deny plaintiff’s motion.