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BRADLEY A. BENING — SBN: 104221
BRUCE D. MacLEOD — SBN: 130860
DAVIS, BENGTSON & YOUNG, APLC
1960 The Alameda, Suite 210
San Jose, CA 95126
Phone: 669.245.4200
Fax: 408.985.1814
Email: bbening@dby-law.com
Email: sdippell@dby-law.com
Attorneys for Defendants/Cross-Complainants
SCOTT LISSOY, an individual; IRA
GLASKY, an individual; ALBERT LISSOY,
an individual; ALBERT LISSOY, as trustee of
the Lissoy Family Trust U/D/T June 17, 1996;
THE LISSOY FAMILY TRUST U/D/T/ June
17, 1996; and LFT QSBC-2011 B, INC.
10
11 SUPERIOR COURT OF CALIFORNIA,
12 COUNTY OF MONTEREY
13
HMBY, LP, a California Limited Partnership, Case No. 21CV001478
14 NADER T. AGHA, an individual, MOSS
LANDING COMMERCIAL PARK, LLC, a
Tg California Limited Liability Company,
ANDALUCIA LTD., a California Limited DEFENDANTS’ OPPOSITION TO
16 Partnership, HOLMAN BUILDING MOTION TO QUASH DEPOSITON
ASSOCIATES, L.P., A California Limited SUBPOENA AND MOTION FOR
17 Partnership, GABILAN APARTMENTS, LLC, PROTECTIVE ORDER
a California limited liability company,
18 Date: February 2, 2024
Plaintiffs, Time: 9:00 a.m.
19
vs.
20
ALBERT LISSOY, an individual, et al.,
21
Defendants.
22
23
ALBERT LISSOY, et al.,
24
Cross-Complainants, vs.
25
HMBY, LP, et al.
26
Cross-Defendants.
27
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
I, INTRODUCTION
This motion to quash a deposition subpoena has been filed by Paul Hart, a participant in, and
witness to, events stretching out over an eight-year plus period that are now at the heart of this
litigation. His involvement in the transactions that led to this lawsuit included negotiations with
Defendants and third parties,. The evidence he has cannot be duplicated by other available
witnesses, and encompasses non-privileged information which he has admitted was “known and
recalled only by me[.]”!
Defendants acknowledge that the courts are wary of ordering the deposition of a party’s trial
attorney, but a deposition is warranted in this action because:
10 1 The defendants limited proposed scope of examination will not include attorney-client
11 privileged communications or work product;
12 The information sought is essential to this lawsuit as it includes facts relating to a
13 separate piece of litigation in which lending institutions were attempting to enforce loan
14 agreements they had with the Plaintiffs, and the resulting negotiations of the parties in
15 this lawsuit of “Binding Term Sheets” that resulted in the lawsuits being dismissed; and
16 3 Plaintiff's counsel has a broad range of knowledge, including information “known and
17 recalled only by [Mr. Hart]” regarding the settlement negotiations, and there are no
18 alternative sources of information.
19 Il, BACKGROUND FACTS
20 A. Mr. Hart’s Unique Knowledge of Relevant Facts
21 The Plaintiffs obtained a loan in 2010 from Bank of Monterey that was secured by a first
22 position Deed of Trust secured by Property known as Moss Landing Commercial Park, and
23 executed a series of related agreements (“MLCP”). In 2016, the Plaintiffs’ representatives
24 approached the Cross-Complainants (collectively “Lissoy) as part of the Plaintiffs’ efforts to avoid
25 foreclosure efforts on the loans. Pursuant to a series of agreements between the parties, spelled out
26
27 ! See, Exhibit C, 115 to the Declaration Of Bruce D. MacLeod In Support Of Defendants’ Opposition To Motion To
Quash Deposition Subpoena And Motion For Protective Order (hereinafter “MacLeod Declaration”.)
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
in a series of three “Binding Term Sheets” (*BTS”), the Lissoys paid for and/or took assignments of
the existing loans and made two additional loans to Mr. Agha totaling $3.5 million. See, e.g., First
Amended Complaint, pp. 8-9, [26-28; pp.11-13, 137-943.
The status of the litigation between Plaintiffs and lenders at the time that the Plaintiffs and
Defendants began negotiating the agreements was a significant motivating factor for the Plaintiffs
during their negotiations of the BTS. As stated in the First Amended Complaint:
“Bank of the Sierra [“BOTS”] was aggressively pursuing litigation
and foreclosure proceedings in order to satisfy the Original Debt
Loan obligations. Monterey County Court appointed a receiver for
the Moss Landing Property. . . . The parties were litigating writs of
attachment and a civil action; the parties were litigating an
arbitration before Justice Agliano and the parties were having
10 repeated hearings on the receivership and the injunction.
Plaintiffs were able to prevent foreclosure for over two years, but
11 such success was unlikely to continue. .-[{] In this context, Agha
entered into the Original Binding Term Sheet Agreement with
12 Lissoy and Defendants on 7/29/15.”
13 First Amended Complaint (“FAC”), 9:1-19.
14 Settlement agreements and releases arising from the litigation involving the banks described
15 in the FAC play a significant role in the Plaintiffs’ pending “Motion for Leave to File Amended
16 Answer to Cross-Complaint”. In the Declaration of Paul Hart in Support of Motion for Leave to
17 File Amended Answer to Cross-Complaint (hereinafter “Hart Cross-Complaint Declaration”), Mr.
18 Hart lays out a series of facts and documents connected with the resolution of the banks’ litigation
19 against Mr. Agha and his entities which Mr. Hart contends are relevant to both the FAC and the
20 affirmative defenses which Mr. Agha desires to assert to the cross-complaint filed by the
21 Defendants. Jd., 2:9-3:1. Mr. Hart also describes the unique nature of his knowledge of those
22 facts®: “[T]he settlement and release agreement of 12/8/15, the dismissal of the 2014 & 2015
23 Actions with prejudice, and the reconveyances of the 2005 MCB Deed of Trust were facts known
24 and recalled only by me.” /d., 4:15-23.
25
26 2 A true and correct copy of the Hart Cross-Complaint Declaration is attached as Exhibit C to the Macleod
Declaration.
27
3 The “unique nature” of the knowledge he had is used to excuse the delay in bringing the motion to amend the Cross-
28 Complaint and Answer.
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
Mr. Hart’s claims that only he had knowledge of these facts is supported by the deposition
testimony of his law partner, Paul Moncrief*:
10:8-22: Mr. Moncrief was not involved in negotiations with lenders, and “Paul Hart was
involved in — in this matter and in dealing with the banks[.]”
19:5-13 “Q: And had you negotiated with the bank — the bank that was asserting ...a
default — had you negotiated with them in any way prior to the execution of the — this
original Binding Term Sheet?
A: I don’t recall having done that.
9 Q. Do you know if anybody did [that] on behalf of Mr. Agha?
10 A. My recollection would be that it was Mr. Hart.”
11 22:16-19 Mr. Hart was “taking a lead with regard to negotiating getting new financing.”
12 The only other person that might otherwise have been able to offer testimony related to these
13 negotiations is Albert Lissoy, who was the primary person for the Lissoys during these negotiations.
14 Unfortunately, due to medical difficulties, Mr. Lissoy is not able to provide that testimony.
15 MacLeod Declaration, JA.
16 B. Defendants’ Efforts to Meet and Confer and Limit the Scope of the Proposed
Deposition.
17
18 On January 10, 2024, counsel for Defendants participated in a conference with Mr. Hart
19 regarding the scope of the proposed deposition of Mr. Hart. During the call, defendant’s counsel
20 proposed that the anticipated scope of the deposition would include three areas of inquiry:
21 a. Communications — written and oral -- between Mr. Hart and the Lissoys
22 regarding the Binding Term Sheets.
23 The positions taken by each side and negotiations during a prior lawsuit between
24 MLCP’s prior lenders and some of the Plaintiffs. Defendants believe that the
25 positions taken by the banks that were a motivating factor for MLCP and in
26 negotiating the “Binding Term Sheets” that are central to this lawsuit.
27
28 a Copies of the relevant pages of Mr. Moncrief’s deposition are attached as Exhibit B to the MacLeod Declaration.
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
c. Information regarding other lenders that Mr. Agha might have had access to
(instead of the Lissoys) during that same time period.
MacLeod Declaration, §2. Counsel for the Defendants repeatedly assured Mr. Hart that they were
not interested in seeking information that would be protected by the attorney-client privilege or
attorney work product doctrine. MacLeod Declaration, J3. Despite these assurance, the parties
were unable to reach an agreement to go forward pursuant to this limited scope.
III. DISCUSSION
The Memorandum of Points and Authorities in Support of Motion to Quash Deposition
Subpoena and Motion for Protective Order (hereinafter “Plaintiff's Brief’) focuses on an argument,
10 which Defendants do not dispute, that subjecting opposing to trial counsel can only occur by a
11 showing of “extremely good cause”. See, e.g., Carehouse Convalescent Hospital v. Superior Court
12 (2007) 152 Cal.App.4" 414, 424. However, while the Plaintiff’s Brief acknowledges the existence
13 of a three-part test for allowing depositions of counsel, it merely asserts that the Defendants have
14 failed to make the necessary showing under this test. An analysis of the reasons behind the rule
15 limiting counsel depositions, when applied to the defendants’ showing in support of their right to the
16 testimony, shows that the Defendants have met their burden for each part of the case.
17 A. The Three-Part Test for Determining Whether a Counsel Deposition Is Proper.
18 A three-part test for whether to allow the depositions of counsel, first developed by the
19 federal courts, was adopted by the 6" District Court of Appeal in Spectra-Physics, Inc. v. Superior
20 Court (1988) 198 Cal.App.3d 1487. The test, as stated in Spectra-Physics, required a party seeking
21 to take counsel’s deposition to show that ‘“(1) no other means exist to obtain the information than to
22 depose opposing counsel, [citation]; (2) the information sought is relevant and nonprivileged; and
23 (3) the information is crucial to the preparation of the case.’ [Citation.]” Spectra-Physics, supra at
24 1494-1495. This three-part test was subsequently adopted by other courts in California; see, e.g.,
25 Carehouse Convalescent, supra , 143 Cal.App.4" at 1563.
26 MI
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
B. Applying the Three-Part Test Compels a Conclusion That the Deposition Should Be
Allowed Pursuant to the Limited Scope Proposed by Defendants.
1 ‘“[N]o other means exist to obtain the information than to depose opposing
counsel’ [.]”
Mr. Hart’s own words, as set forth in the Hart Cross-Complaint Declaration detailed above,
demonstrate his “unique knowledge” regarding the negotiations, a position supported by his law
partner, Mr. Moncrief. Perhaps one of the few other individuals that might have any first-hand
knowledge, Al Lissoy, is not able to offer any testimony, but even his testimony would not include
information regarding the negotiations between MLCP and the lenders or the status of the litigation
between those parties.
10 Caselaw, including cases cited by the Plaintiff, which describe the rationale for the “no other
11 means” test demonstrate why the concerns are not an issue in this action. For example, in
12 Carehouse Convalescent, supra, the Plaintiff sought to take the deposition of an attorney that had
13 prepared an analysis of whether Carehouse’s staffing levels were consistent with requirements. The
14 court noted first that the parties seeking the deposition had access to the same underlying
15 documents, and concluded that the Plaintiff's arguments focused on “ease” rather than “necessity”,
16 and “California does not allow opposing counsel to be deposed simply for ‘the picking of his
17 brains.’ [Citations.]’” Carehouse, supra at 1564. Spectra-Physics involved efforts by a settling
18 defendant, Teledyne, to take the deposition of an attorney for a non-settling defendant to show that
19 the non-settling defendant had acted in bad faith in attempting to undermine the settling defendants’
20 settlement. The court observed that Teledyne had other means to obtain the information, but those
21 means do not exist in the current action: “For a start, [Teledyne] can discuss with the plaintiffs —
22 who have a joint intertest with Teledyne in achieving the good faith imprimatur of the settlement —
23 what overtures codefendants have made to plaintiffs, what discussions have taken place, what
24 settlement possibilities explored.” Spectra-Physics, supra, 198 Cal.App.3d at 1496. As to other
25 potential methods of showing that the Teledyne’s settlement was in “good faith”, the court observed
26 that “Depositions of codefense counsel are not essential for obtaining any of this evidence.” Jd., at
27 1497.
28 Unlike Spectra-Physics, there are no other parties to negotiations that took place eight years
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR.
PROTECTIVE ORDER
ago that might have a “joint interest”, nor are there other sources for obtaining that information.
2. “[T]he information sought is relevant and nonprivileged.”
The areas of examination identified by the Defendants relate to Mr. Hart’s interactions with
third parties and only implicate his communication with his clients to the extent they were
communicated to those third parties. None of this is privileged information.
The information sought is also relevant. First, communications between Mr. Hart and the
Defendants go to the parties understanding of the terms of the agreements, a key point for any
arguments related to what the BTS’ intended. (See, e,g., Mountain Air Enterprises, LLC v.
Sundowner Towers, LLC (2017) 3 Cal.5th 744, 763; Pacific Gas & Electric Co. v. G.W. Thomas
10 Drayage & Rigging (1968) 69 Cal.2d. 33,37.) Second, the Plaintiffs increasingly appear to be
11 focusing on the theory that the Plaintiffs gave away more than the investments provided by the
12 Defendants justified. In this context, the positions of the financial institutions that were involved in
13 the prior lawsuit are directly relevant.
14 3. “[T]he information is crucial to the preparation of the case.”
15 As stated in §1II(B)(2), supra, the information sought goes to central points of each side’s
16 position. The Hart Cross-Complaint Declaration itself pronounces the importance of the
17 information of which he alone has knowledge. Hart Cross-Complaint Declaration, 4:16-22.
18 Further, the information identified is not equally available to the defendants because either
19 they were not parties to the discussions (e.g., the information described in §3(a)) or because Albert
20 Lissoy, who was the primary negotiator on the Binding Term Sheets for the Lissoy side is no longer
21 capable of providing testimony due to subsequent medical problems which have been identified to
22 the Plaintiffs’ counsel. MacLeod Declaration, 4.
23 IV.CONCLUSION
24 Defendants noticed the deposition of Paul Hart to obtain a limited universe of information
25 connected to events that preceded the current litigation, which is directly related to the current
26 litigation, cannot be obtained from other sources and does not involve privileged communications or
27 confidential work product. Defendants attempted to work with Mr. Hart in an attempt to resolve
28 any issues that might arise, but were unsuccessful. With this background, Defendants respectfully
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DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR
PROTECTIVE ORDER
1 request that the court deny the motion, and order Mr. Hart’s deposition to proceed
2 || within 10 days of the hearing of this matter on a date that is mutually agreeable to all parties
3 DATED: January 22, 2024
4 DAVIS, BEN) IN
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BrucéD. MacLeod
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BRADLEY A. BENING — SBN: 104221 BRUCE D. MacLEOD — SBN: 130860 DAVIS, BENGTSON & YOUNG, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 Phone: 669.245.4200 Fax: 408.985.1814 Email: bbening@dby-law.com Email: sdippell@dby-law.com Attorneys for Defendants/Cross-Complainants SCOTT LISSOY, an individual; IRA GLASKY, an individual; ALBERT LISSOY, an individual; ALBERT LISSOY, as trustee of the Lissoy Family Trust U/D/T June 17, 1996; THE LISSOY FAMILY TRUST U/D/T/ June 17, 1996; and LFT QSBC-2011 B, INC. 10 11 SUPERIOR COURT OF CALIFORNIA, 12 COUNTY OF MONTEREY 13 HMBY, LP, a California Limited Partnership, Case No. 21CV001478 14 NADER T. AGHA, an individual, MOSS LANDING COMMERCIAL PARK, LLC, a Tg California Limited Liability Company, ANDALUCIA LTD., a California Limited DEFENDANTS’ OPPOSITION TO 16 Partnership, HOLMAN BUILDING MOTION TO QUASH DEPOSITON ASSOCIATES, L.P., A California Limited SUBPOENA AND MOTION FOR 17 Partnership, GABILAN APARTMENTS, LLC, PROTECTIVE ORDER a California limited liability company, 18 Date: February 2, 2024 Plaintiffs, Time: 9:00 a.m. 19 vs. 20 ALBERT LISSOY, an individual, et al., 21 Defendants. 22 23 ALBERT LISSOY, et al., 24 Cross-Complainants, vs. 25 HMBY, LP, et al. 26 Cross-Defendants. 27 28 DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER I, INTRODUCTION This motion to quash a deposition subpoena has been filed by Paul Hart, a participant in, and witness to, events stretching out over an eight-year plus period that are now at the heart of this litigation. His involvement in the transactions that led to this lawsuit included negotiations with Defendants and third parties,. The evidence he has cannot be duplicated by other available witnesses, and encompasses non-privileged information which he has admitted was “known and recalled only by me[.]”! Defendants acknowledge that the courts are wary of ordering the deposition of a party’s trial attorney, but a deposition is warranted in this action because: 10 1 The defendants limited proposed scope of examination will not include attorney-client 11 privileged communications or work product; 12 The information sought is essential to this lawsuit as it includes facts relating to a 13 separate piece of litigation in which lending institutions were attempting to enforce loan 14 agreements they had with the Plaintiffs, and the resulting negotiations of the parties in 15 this lawsuit of “Binding Term Sheets” that resulted in the lawsuits being dismissed; and 16 3 Plaintiff's counsel has a broad range of knowledge, including information “known and 17 recalled only by [Mr. Hart]” regarding the settlement negotiations, and there are no 18 alternative sources of information. 19 Il, BACKGROUND FACTS 20 A. Mr. Hart’s Unique Knowledge of Relevant Facts 21 The Plaintiffs obtained a loan in 2010 from Bank of Monterey that was secured by a first 22 position Deed of Trust secured by Property known as Moss Landing Commercial Park, and 23 executed a series of related agreements (“MLCP”). In 2016, the Plaintiffs’ representatives 24 approached the Cross-Complainants (collectively “Lissoy) as part of the Plaintiffs’ efforts to avoid 25 foreclosure efforts on the loans. Pursuant to a series of agreements between the parties, spelled out 26 27 ! See, Exhibit C, 115 to the Declaration Of Bruce D. MacLeod In Support Of Defendants’ Opposition To Motion To Quash Deposition Subpoena And Motion For Protective Order (hereinafter “MacLeod Declaration”.) 28 -2- DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER in a series of three “Binding Term Sheets” (*BTS”), the Lissoys paid for and/or took assignments of the existing loans and made two additional loans to Mr. Agha totaling $3.5 million. See, e.g., First Amended Complaint, pp. 8-9, [26-28; pp.11-13, 137-943. The status of the litigation between Plaintiffs and lenders at the time that the Plaintiffs and Defendants began negotiating the agreements was a significant motivating factor for the Plaintiffs during their negotiations of the BTS. As stated in the First Amended Complaint: “Bank of the Sierra [“BOTS”] was aggressively pursuing litigation and foreclosure proceedings in order to satisfy the Original Debt Loan obligations. Monterey County Court appointed a receiver for the Moss Landing Property. . . . The parties were litigating writs of attachment and a civil action; the parties were litigating an arbitration before Justice Agliano and the parties were having 10 repeated hearings on the receivership and the injunction. Plaintiffs were able to prevent foreclosure for over two years, but 11 such success was unlikely to continue. .-[{] In this context, Agha entered into the Original Binding Term Sheet Agreement with 12 Lissoy and Defendants on 7/29/15.” 13 First Amended Complaint (“FAC”), 9:1-19. 14 Settlement agreements and releases arising from the litigation involving the banks described 15 in the FAC play a significant role in the Plaintiffs’ pending “Motion for Leave to File Amended 16 Answer to Cross-Complaint”. In the Declaration of Paul Hart in Support of Motion for Leave to 17 File Amended Answer to Cross-Complaint (hereinafter “Hart Cross-Complaint Declaration”), Mr. 18 Hart lays out a series of facts and documents connected with the resolution of the banks’ litigation 19 against Mr. Agha and his entities which Mr. Hart contends are relevant to both the FAC and the 20 affirmative defenses which Mr. Agha desires to assert to the cross-complaint filed by the 21 Defendants. Jd., 2:9-3:1. Mr. Hart also describes the unique nature of his knowledge of those 22 facts®: “[T]he settlement and release agreement of 12/8/15, the dismissal of the 2014 & 2015 23 Actions with prejudice, and the reconveyances of the 2005 MCB Deed of Trust were facts known 24 and recalled only by me.” /d., 4:15-23. 25 26 2 A true and correct copy of the Hart Cross-Complaint Declaration is attached as Exhibit C to the Macleod Declaration. 27 3 The “unique nature” of the knowledge he had is used to excuse the delay in bringing the motion to amend the Cross- 28 Complaint and Answer. 3+ DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER Mr. Hart’s claims that only he had knowledge of these facts is supported by the deposition testimony of his law partner, Paul Moncrief*: 10:8-22: Mr. Moncrief was not involved in negotiations with lenders, and “Paul Hart was involved in — in this matter and in dealing with the banks[.]” 19:5-13 “Q: And had you negotiated with the bank — the bank that was asserting ...a default — had you negotiated with them in any way prior to the execution of the — this original Binding Term Sheet? A: I don’t recall having done that. 9 Q. Do you know if anybody did [that] on behalf of Mr. Agha? 10 A. My recollection would be that it was Mr. Hart.” 11 22:16-19 Mr. Hart was “taking a lead with regard to negotiating getting new financing.” 12 The only other person that might otherwise have been able to offer testimony related to these 13 negotiations is Albert Lissoy, who was the primary person for the Lissoys during these negotiations. 14 Unfortunately, due to medical difficulties, Mr. Lissoy is not able to provide that testimony. 15 MacLeod Declaration, JA. 16 B. Defendants’ Efforts to Meet and Confer and Limit the Scope of the Proposed Deposition. 17 18 On January 10, 2024, counsel for Defendants participated in a conference with Mr. Hart 19 regarding the scope of the proposed deposition of Mr. Hart. During the call, defendant’s counsel 20 proposed that the anticipated scope of the deposition would include three areas of inquiry: 21 a. Communications — written and oral -- between Mr. Hart and the Lissoys 22 regarding the Binding Term Sheets. 23 The positions taken by each side and negotiations during a prior lawsuit between 24 MLCP’s prior lenders and some of the Plaintiffs. Defendants believe that the 25 positions taken by the banks that were a motivating factor for MLCP and in 26 negotiating the “Binding Term Sheets” that are central to this lawsuit. 27 28 a Copies of the relevant pages of Mr. Moncrief’s deposition are attached as Exhibit B to the MacLeod Declaration. 7 DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER c. Information regarding other lenders that Mr. Agha might have had access to (instead of the Lissoys) during that same time period. MacLeod Declaration, §2. Counsel for the Defendants repeatedly assured Mr. Hart that they were not interested in seeking information that would be protected by the attorney-client privilege or attorney work product doctrine. MacLeod Declaration, J3. Despite these assurance, the parties were unable to reach an agreement to go forward pursuant to this limited scope. III. DISCUSSION The Memorandum of Points and Authorities in Support of Motion to Quash Deposition Subpoena and Motion for Protective Order (hereinafter “Plaintiff's Brief’) focuses on an argument, 10 which Defendants do not dispute, that subjecting opposing to trial counsel can only occur by a 11 showing of “extremely good cause”. See, e.g., Carehouse Convalescent Hospital v. Superior Court 12 (2007) 152 Cal.App.4" 414, 424. However, while the Plaintiff’s Brief acknowledges the existence 13 of a three-part test for allowing depositions of counsel, it merely asserts that the Defendants have 14 failed to make the necessary showing under this test. An analysis of the reasons behind the rule 15 limiting counsel depositions, when applied to the defendants’ showing in support of their right to the 16 testimony, shows that the Defendants have met their burden for each part of the case. 17 A. The Three-Part Test for Determining Whether a Counsel Deposition Is Proper. 18 A three-part test for whether to allow the depositions of counsel, first developed by the 19 federal courts, was adopted by the 6" District Court of Appeal in Spectra-Physics, Inc. v. Superior 20 Court (1988) 198 Cal.App.3d 1487. The test, as stated in Spectra-Physics, required a party seeking 21 to take counsel’s deposition to show that ‘“(1) no other means exist to obtain the information than to 22 depose opposing counsel, [citation]; (2) the information sought is relevant and nonprivileged; and 23 (3) the information is crucial to the preparation of the case.’ [Citation.]” Spectra-Physics, supra at 24 1494-1495. This three-part test was subsequently adopted by other courts in California; see, e.g., 25 Carehouse Convalescent, supra , 143 Cal.App.4" at 1563. 26 MI 27 28 5- DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER B. Applying the Three-Part Test Compels a Conclusion That the Deposition Should Be Allowed Pursuant to the Limited Scope Proposed by Defendants. 1 ‘“[N]o other means exist to obtain the information than to depose opposing counsel’ [.]” Mr. Hart’s own words, as set forth in the Hart Cross-Complaint Declaration detailed above, demonstrate his “unique knowledge” regarding the negotiations, a position supported by his law partner, Mr. Moncrief. Perhaps one of the few other individuals that might have any first-hand knowledge, Al Lissoy, is not able to offer any testimony, but even his testimony would not include information regarding the negotiations between MLCP and the lenders or the status of the litigation between those parties. 10 Caselaw, including cases cited by the Plaintiff, which describe the rationale for the “no other 11 means” test demonstrate why the concerns are not an issue in this action. For example, in 12 Carehouse Convalescent, supra, the Plaintiff sought to take the deposition of an attorney that had 13 prepared an analysis of whether Carehouse’s staffing levels were consistent with requirements. The 14 court noted first that the parties seeking the deposition had access to the same underlying 15 documents, and concluded that the Plaintiff's arguments focused on “ease” rather than “necessity”, 16 and “California does not allow opposing counsel to be deposed simply for ‘the picking of his 17 brains.’ [Citations.]’” Carehouse, supra at 1564. Spectra-Physics involved efforts by a settling 18 defendant, Teledyne, to take the deposition of an attorney for a non-settling defendant to show that 19 the non-settling defendant had acted in bad faith in attempting to undermine the settling defendants’ 20 settlement. The court observed that Teledyne had other means to obtain the information, but those 21 means do not exist in the current action: “For a start, [Teledyne] can discuss with the plaintiffs — 22 who have a joint intertest with Teledyne in achieving the good faith imprimatur of the settlement — 23 what overtures codefendants have made to plaintiffs, what discussions have taken place, what 24 settlement possibilities explored.” Spectra-Physics, supra, 198 Cal.App.3d at 1496. As to other 25 potential methods of showing that the Teledyne’s settlement was in “good faith”, the court observed 26 that “Depositions of codefense counsel are not essential for obtaining any of this evidence.” Jd., at 27 1497. 28 Unlike Spectra-Physics, there are no other parties to negotiations that took place eight years -6- DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR. PROTECTIVE ORDER ago that might have a “joint interest”, nor are there other sources for obtaining that information. 2. “[T]he information sought is relevant and nonprivileged.” The areas of examination identified by the Defendants relate to Mr. Hart’s interactions with third parties and only implicate his communication with his clients to the extent they were communicated to those third parties. None of this is privileged information. The information sought is also relevant. First, communications between Mr. Hart and the Defendants go to the parties understanding of the terms of the agreements, a key point for any arguments related to what the BTS’ intended. (See, e,g., Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 763; Pacific Gas & Electric Co. v. G.W. Thomas 10 Drayage & Rigging (1968) 69 Cal.2d. 33,37.) Second, the Plaintiffs increasingly appear to be 11 focusing on the theory that the Plaintiffs gave away more than the investments provided by the 12 Defendants justified. In this context, the positions of the financial institutions that were involved in 13 the prior lawsuit are directly relevant. 14 3. “[T]he information is crucial to the preparation of the case.” 15 As stated in §1II(B)(2), supra, the information sought goes to central points of each side’s 16 position. The Hart Cross-Complaint Declaration itself pronounces the importance of the 17 information of which he alone has knowledge. Hart Cross-Complaint Declaration, 4:16-22. 18 Further, the information identified is not equally available to the defendants because either 19 they were not parties to the discussions (e.g., the information described in §3(a)) or because Albert 20 Lissoy, who was the primary negotiator on the Binding Term Sheets for the Lissoy side is no longer 21 capable of providing testimony due to subsequent medical problems which have been identified to 22 the Plaintiffs’ counsel. MacLeod Declaration, 4. 23 IV.CONCLUSION 24 Defendants noticed the deposition of Paul Hart to obtain a limited universe of information 25 connected to events that preceded the current litigation, which is directly related to the current 26 litigation, cannot be obtained from other sources and does not involve privileged communications or 27 confidential work product. Defendants attempted to work with Mr. Hart in an attempt to resolve 28 any issues that might arise, but were unsuccessful. With this background, Defendants respectfully T+ DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER 1 request that the court deny the motion, and order Mr. Hart’s deposition to proceed 2 || within 10 days of the hearing of this matter on a date that is mutually agreeable to all parties 3 DATED: January 22, 2024 4 DAVIS, BEN) IN 5 6 (VEZ BrucéD. MacLeod 7 Attorneys for Defendants 8 10 11 12 13 14 15 16 17 18 19 20 21 22: 23 24 25 26 27 28 -8- DEFENDANTS’ OPPOSITION TO MOTION TO QUASH DEPOSITON SUBPOENA AND MOTION FOR PROTECTIVE ORDER