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HomeMy WebLinkAbout001 2022-03-03 012624_ Palm Desert_ Sherry Mesa et al - CONFIDENTIAL ATTORNEY - CLIENT COMMUNICATION.pdf1 Gloria Sanchez From:Kevin Borgen <kborgen@gibbsandfuerst.com> Sent:Thursday, March 3, 2022 2:20 PM To:Varon, Tim Cc:Mike Gibbs; Karen Hernandez; Cora Gaugush; Steve Aryan; Robert Hargreaves Subject:RE: 3012624, Palm Desert, Sherry Mesa et al - CONFIDENTIAL ATTORNEY - CLIENT COMMUNICATION Attachments:We sent you safe versions of your files; Mesa Notice of Taking Deposition of City PMK.pdf Mimecast Attachment Protection has deemed this file to be safe, but always exercise caution when opening files. Tim, Mediation in this case is scheduled for May 16, 2022, with the Hon. Robert G. Taylor (Ret.). In the meantime, we request authority to prepare a motion for summary judgment (discussed further below) with the hope that the motion will educate the other parties on the issue of duty, provide some leverage at the mediation, and hopefully resolve the case if mediation is unsuccessful. Plaintiffs’ counsel served the attached deposition notice for City’s person most qualified on several subjects. The deposition was set unilaterally for April 7, 2022. We believe most of the subjects are objectionable for vagueness and overbreadth and/or because the subjects are legal issues. We are optimistic we can resolve the issues about the scope and specificity of the subjects. However, we seem to be completely at odds on the propriety of the subjects covering legal issues, specifically subjects 1, 2 & 6. The subjects propose that a City PMQ should explain the Presidents Plaza Property and Business Improvement District and testify about the City’s and property owners’ respective responsibilities and obligations relative to the parking lot. We do not believe the City must or should produce a witness to offer legal explanation, opinions, or contentions at a deposition. Counsel for the other parties can analyze for themselves the nature and legal effect of Presidents Plaza Property and Business Improvement District by reference to the Streets & Highways Code provisions regarding Business Improvement Districts and the documents produced by the City relative to the Presidents Plaza Property and Business Improvement District. We are trying to convince the other parties to at least postpone the PMQ deposition until after the May 16 mediation. We will keep you posted on this discovery issue. While the other parties’ counsel can analyze issues of duty for themselves, it appears they have not considered anything much further than general principles of premises liability. In relation to the Presidents Plaza Property and Business Improvement District, counsel for the other parties are both under the misimpression that there is an agreement between the City and private owners of the property on which the parking lot sits and seem to believe the supposed agreement makes the City fully responsible for the parking lot. We propose to bring a motion for summary judgment limited to the question of duty. The gist of the argument would be that, regardless of whether the City owed some duty to the general public, the City had no duty to maintain this property for the benefit of the private owner or its commercial tenant. Further, a Business Improvement District is a mechanism for making assessments to be used for the special benefit of property owners with a District; it is not a transfer of legal responsibility for private property to a public entity. As indicated above, we believe it would be helpful to prepare an MSJ regarding duty to educate the parties on the issue and the City’s position before the mediation, to provide settlement leverage at the mediation, and, if mediation were 2 unsuccessful, to get a ruling as early as possible that will either resolve the case for the City or allow the City to re- evaluate its settlement position based on the court’s ruling on the question of duty. Please grant us authority to prepare a motion for summary judgment, and please let us know if you have any comment or question. 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