(October 16)  Yucca Valley Town Attorney Lona Laymon has made a motion with the Superior Court to quash subpoenas filed by the attorney for a town resident which call for the  depositions of the members of the town council.
A deposition is questioning of witnesses or participants in  legal actions such as a lawsuit or prosecution under oath, i.e., the penalty of perjury.
Fritz Koenig, who owns property on Hoot Owl Trail, has been engaged in a lawsuit against a nearby resident, David Falossi, since January 2009.  Key to the litigation between Koenig and Falossi is a road which traverses Koenig’s property and over which all but one of Koenig’s neighbors transit to reach their residential properties. The road is not subject to an easement, although Koenig lets his neighbors use it as “a neighborly accommodation.”
Falossi is an accomplished artist and sculptor who works in many media, including large heavy objects intended as outdoor venue decorations and art pieces. He works from his home studio.
Koenig has objected to what he characterizes as the industrial nature of Falossi’s fabricating operation that is central to his sculpturing and artwork, which involves welding, stone grinding and glass grinding. Koenig maintains that such activity is incompatible with a rural residential neighborhood and out of compliance with the town’s codes that were in effect since shortly after the town’s incorporation.
Moreover, Koenig has objected to Falossi utilizing the dirt road across his property to bring forklifts and a large truck to transport both the raw material Falossi uses in his fabrication process as well as the finished artwork, which in some cases weighs several thousand pounds, to and from his home studio.
Falossi, who lives at  his home studio with his wife and four children,  has accused Koenig of harassing him and members of his family.
The contretemps between Koenig and Falossi spread from across their adjoining property line into the courts, entailing the granting of restraining orders. The matter spilled over into Yucca Valley Town Hall when Falosi applied for a home occupation permit, which Koenig then opposed.   Koenig brought the matter before the town council when he appealed a planning commission decision in favor of Falossi in which he  sought to have the town enforce elements of the town code pertaining to permissible activities in a residential zone. Koenign maintains the town code has been violated because at least some of the fabricating activity Falossi engages in at his studio is excluded from all residential zones. Koenig’s objection resulted in the town reexamining its land use policy, with the planning commission considering changes to the development code to allow greater latitude with regard to the type and nature of home-based businesses that can locate in the town’s residential zones. This begat some degree of controversy as some residents objected to what they perceived as the potential of commercializing or industrializing their neighborhoods.
Simultaneously, the town council began looking into the circumstance on Hoot Owl Trail, including at one point, driving out the road that led across Koenig’s property to Falossi’s studio, looking at his equipment and vehicles used to transport his supplies and finished artwork and touring the studio itself. Falossi has never permitted Koenig to come into his studio. Nor has the court granted Koenig access to it to fully examine the scope of its operations.  In pursuing the ongoing litigation, Koenig has been seeking to establish that the activity there is of such an intensity and nature that it is in violation of the town code. In discussing their tour of the Falossi property in an open public forum, members of the town council indicated that manufacturing of an industrial nature was occurring there, as when town council member Bob Leone referenced glass grinding taking place on the premises.
Consequently, Koenig has moved to take the depositions of all five council members, hoping to learn from them whether they observed any activity on the property which would buttress his case.
After notice of the depositions was made, however, Lona Laymon, the Yucca Valley Town Attorney, gave indication she was moving to block Koenig and his attorney, John B. Barriage, from moving forward with that questioning under oath.
While the law does provide a governmental board’s members with confidential privilege relating to its decision making and  deliberative processes, that privilege is not absolute and Koenig may have legal grounds for learning from the town council and its individual members what facts or circumstances they encountered in their fact finding process.
Barriage told the Sentinel he does not think Laymon will have adequate grounds to bar him from questioning the council members.
“They are percipient witnesses of conditions on the property,” Barriage said of the council. “I am not going to ask about what was on their minds. I merely what to find out from them what they saw while they were inspecting the studio on the Falossi property. I am not going after their decision making process.”
Laymon filed five separate similarly worded objection’s to Koenig’s deposition requests on behalf of each of the council members.
According to Laymon, “Town and town concilmember object to the subpoena, including all definitions and instructions, to the extent that it seeks the disclosure of information protected from discovery by the attorney-client privilege… the attorney work-product doctrine… the tax filing privilege, the trade secret or proprietary information privilege, the deliberative process privilege, the official information privilege… the trade secret privilege, the town councilmember’s rights of privacy and/or any other applicable privilege or immunity. Town and town councilmember object to the subpoena as unduly burdensome to the extent it seeks to impose on town councilmember the obligation to ascertain facts that are not known to him/her. Town councilmember has little or no personal knowledge of the ongoing personal disputes between Friederich Koenig and his neighbors and/or other matters alleged in the lawsuit(s) underlying the subpoena.  Town council official actions upon the “home occupation permit”as demanded in the subpoena bear no relevance to the above-captioned case(s) and there is no basis to believe that the town councilmember can add any evidence that is relevant and material to the personal disputes between Friederich Koenig and his neighbors.”
It is anticipated that Barriage will oppose Laymon’s motion, which ultimately will be decided upon by Judge David Cohn.