Case Number: 21STCV13920    Hearing Date: March 6, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Plaintiff/Cross-Defendant Randall L. Bort.

OPPOSITION:                      Defendants/Cross-Complainants KBS Holdco, LLC and Brian Kennedy.

REPLY:                                 Plaintiff/Cross-Defendant Randall L. Bort.

Background

Plaintiff/Cross-Defendant Randall L. Bort sues Defendants/Cross-Complainants KBS Holdco, LLC, Brian Kennedy (KBS’s owner), and Does 1-50 pursuant to claims of (1) Breach of Contract, (2) Promissory Estoppel, (3) Quantum Meruit, and (4) Account Stated. The claims are based on allegations that the Defendants (KBS and Kennedy) entered into a written Agreement with Plaintiff Bort to employ his professional services to perform various tasks—including obtaining financing—for the Defendants’ asset purchase of a company named Regency Outdoor Advertising (“Regency”), with Plaintiff Bort to be paid a Retainer Fee of $50,000 to be offset against a Success Fee of $1,470,000 if the Regency Project was structured as an asset purchase. Plaintiff Bort claims his efforts helped the Defendants successfully purchase Regency on February 2, 2021 but that the Defendants breached the Agreement by only paying Plaintiff Bort a $10,000 down payment and no other monies, causing Bort damages of $1,460,000.

Defendants KBS and Kennedy bring a Cross-Complaint against Plaintiff Bort and ROES 1-10 pursuant to claims of (1) Breach of Contract, (2) Rescission, (3) Unfair Competition, and Declaratory Relief. The claims are based on allegations that Defendant Kennedy—an 82-year-old individual—acquired Regency through use of his own funds and that Plaintiff Bort breached the Agreement by failing to secure the financing contemplated by the parties’ contract, for which reason a rescission of the Agreement is merited and Plaintiff Bort is not entitled to the $1,460,000 sought in the Complaint.

Now before the Court is Plaintiff Bort’s opposed Motion for an Order Compelling the Deposition of Defendant and Cross-Complainant Brian Kennedy and an associated Request for Sanctions. In their Opposition, KBS and Kennedy make a responsive Request for Sanctions.

Motion to Compel Deposition: MOOT.

On October 14, 2020, Plaintiff Bort filed with the Court a Motion for an Order Compelling the Deposition of Defendant and Cross-Complainant Brian Kennedy on the ground that Defendant Kennedy failed to appear to a Deposition scheduled for September 30, 2022.

On February 6, 2023, Defendant Kennedy sat for his Deposition. (Opp’n, Angioni Decl., ¶ 10.)

Accordingly, Plaintiff’s Motion to Compel is MOOT.

Bort’s Request for Sanctions: GRANTED.

The court must impose monetary sanctions against the deponent or, if the deponent is a party-affiliated witness, against the party, when the deponent either did not appear for or refused to proceed with the deposition or did not produce for inspection any documents, ESI, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025, subds. (a), (g)(1), (g)(2).) Further, the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

In his Motion to Compel, Plaintiff Bort argues that the Court should award him $1,860 in monetary sanctions against the Defendants and their attorneys Kaedian LLP as compensation for the attorney’s fees and costs incurred by plaintiff’s counsel in bringing this motion, particularly where Defendant Kennedy did not act with substantial justification in refusing to appear for the September 30, 2022 deposition or provide alternative deposition dates for deposition between September 1, 2022 and September 30, 2022. (Mot., 8:7-23, Dreibholz Decl., ¶¶ 3-12 [communications between parties regarding September 1, 2022 notice of deposition and follow-up communications for alternative dates], 13 [breakdown of sanctions requested] & Exs. 3-10 [copies of emails showing, showing defense counsel, at most, proposed deposition in October or November 2022 without providing specific dates] & Ex. 11 [September 27, 2022 Objections to Deposition by Kennedy].)

In opposition, Defendants KBS and Kennedy argue that sanctions are not warranted because the Defendants objected to the deposition of Defendant Kennedy, as well as requesting sanctions of their own against Plaintiff Bort for (a) failing to meet and confer regarding later deposition dates for Defendant Kennedy and (b) failing to take this motion off calendar once Defendant Kennedy submitted to deposition on February 6, 2023. (Opp’n, 5:19-6-28, Angioni Decl., Ex. C [copy of Objections, served September 27, 2022] & Exs. D-J [showing email communications, including efforts at deposing Defendant Kennedy in or after October 2022, and plaintiff’s counsel communications indicating they would only take this motion off calendar if paid reasonable fees and costs].)

In reply, Plaintiff Bort reiterates the arguments in his motion and argues that Defendant Kennedy only made himself available for deposition in early February 2023, meriting sanctions. (Reply, 11:14-12:1.)

The Court agrees with Plaintiff Bort and finds that Defendant Kennedy acted without substantial justification in failing to appear at the September 30, 2022 deposition. Though Kennedy filed an objection to the deposition (Opp’n, Angioni Decl., Ex. C), such objection was filed shortly before the September 30 date and the emails between the parties show that while defense counsel generally recommended that a deposition of Kennedy take place in October or November 2022, defense counsel was not proactive in fixing a date therefor prior to the September 30, 2022 deposition. (Mot., Dreibholz Decl., Exs. 3-10.) The deposition did not take place until February, 2023. Last, even though Kennedy sat for deposition on February 6, 2023, the Court may award sanctions pursuant to California Rules of Court, rule 3.1348.

The Court thus GRANTS Plaintiff Bort’s Requests for Sanctions in the amount of $1,860 against Defendants KBS and Kennedy and Kaedian LLP, jointly and severally.

The Court DENIES Defendants KBS and Kennedy’s responsive Request for Sanctions, noting that Defendant Kennedy only submitted himself to deposition on February 6, 2023, long after the original deposition date of September 30, 2022.

Conclusion

Plaintiff/Cross-Defendant Randall L. Bort’s Motion for an Order Compelling the Deposition of Defendant and Cross-Complainant Brian Kennedy is MOOT because Defendant Kennedy submitted himself to deposition on February 6, 2023.

Plaintiff/Cross-Defendant Randall L. Bort’s Request for Sanctions is GRANTED in the amount of $1,860, against Defendants KBS and Kennedy and Kaedian LLP, jointly and severally, to be paid in THIRTY DAYS.

Defendants/Cross-Complainants KBS Holdco, LLC and Brian Kennedy’s responsive Request for Sanctions is DENIED.