What Are We Doing?
Opposing the hostile take-over of Liberty Apple Valley
SAN BERNARDINO — Marc Puckett will be questioned by Liberty Utilities attorneys after both sides in Apple Valley’s eminent domain case agreed to move forward with his deposition, for now, sans a protective order requested in a motion by town attorneys.
Filed by Kendall MacVey and Gregory Snarr of Best Best & Krieger (BB&K), the motion blocked the Feb. 7 deposition, and documents show it sought to prohibit Liberty’s attorneys from questioning Puckett on his separate felony hit-and-run case, as well as the reasons for and terms of the termination of his assistant town manager position.
In San Bernardino County Superior Court on Tuesday, MacVey said the town was willing to agree to the deposition because Puckett had retained an attorney since the filing.
“The main concern was not having counsel there, and by having counsel there, hopefully, we will avoid a lot of the issues and problems that we were worried about,” MacVey said. “I don’t think an order for the deposition to proceed is necessary.”
David Moran — with Manatt, Phelps & Phillips (MP&P) — indicated as much prior to MacVey’s statements; however, that didn’t deter the Liberty attorney from airing opposition to the motion.
“With respect to a request for some sort of a protective order or limiting order, that is really, frankly, a solution looking for a problem,” Moran said. “We haven’t asked a single deposition question yet. There’s no indication that we intend to delve into areas that are improper or to ask improper questions. So at this point, there’s absolutely no good cause to issue some sort of a protective order to limit us.”
The deposition — tentatively scheduled for mid-April, according to Moran — will likely result in discovery that could be used as evidence during a looming right-to-take trial wherein BB&K attorneys must prove municipal ownership of the Apple Valley water system is a more necessary use to the public as compared to Liberty’s private ownership.
With that said, Moran and his colleague George Soneff noted that both sides agree MP&P has a legal right to depose Puckett, whose former position inside Town Hall provided “a wealth of relevant information.”
But because he is no longer a town employee, an inability exists on BB&K’s part to instruct Puckett if questions delve into matters protected by attorney-client privilege. His attorney’s presence, then, appeared to allay concerns of the town’s legal team.
As a result, Judge Donald Alvarez continued the motion to May 11; BB&K can revisit the matter if necessary.
“The motion is really moot at this point, as we’ve been able to agree on the deposition,” Alvarez said, “and that’s without prejudice to anybody’s rights to interpose any objections or whatever legal issues that may arise during that.”
The agreement afforded small victories on both sides of the legal battle. MP&P got its day with Puckett and BB&K got time, which was among the motion’s desired effects, court documents show.
Had Alvarez granted the motion in full, the protective order would have come with a 30-day stay of the deposition and provided an interlude for discussions of Puckett’s “unique circumstances,” including the felony case against him, as well as the eliminated Town Hall position.
So — given the tentative April time frame and despite Alvarez’s continuance — BB&K still garnered an extra month for preparation, albeit without the parameters requested via the protective order that could have kept MP&P from seeking “irrelevant, burdensome, embarrassing and prejudicial” information.
Soneff, meanwhile, voiced frustration after MacVey requested an hour-long conference in May with Alvarez to discuss other disagreements, including handling of the administrative record and how to have “an orderly discovery process.”
“I’ve never quite understood what it is we’re supposed to do in an hour,” Soneff said. “This case has been pending for two years. There’s been one deposition taken, and there’s no outstanding written discovery … The idea of coming in at this juncture for an hour with the court, I don’t understand.”
For his part, MacVey said the case had already brought disagreements, thus hampering progress and fostering a need, in his opinion, for the meet-and-confer scenario with the judge.
“I’ve already had to file another motion yesterday, your honor, which I reluctantly did,” MacVey said. “Just having that protective order motion today illustrates, I think, some of the issues that can come up.”
Still, Soneff’s comments highlighted a laborious path to trial that — if additional motions are any indication — will likely remain on rough terrain in the months ahead.
Both parties are due back in court April 5 for a hearing on a motion regarding the alleged benefits of the town’s acquisition of the water system, court records show. A trial-setting hearing, as well as the meeting with Alvarez, are scheduled for May 11.
Source: Matthew Cabe, Daily Press