Judge: Armen Tamzarian, Case: 21STCV26273, Date: 2024-03-26 Tentative Ruling

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Case Number: 21STCV26273    Hearing Date: March 26, 2024    Dept: 52

Plaintiff/Cross-Defendant Glaser Weil’s Motion to Compel Deposition of Defendant Shlomo Rechnitz and Request for Sanctions

Plaintiff/cross-defendant Glaser Weil Fink Howard Avchen & Shapiro LLP (Glaser Weil) moves to compel the deposition of defendant/cross-complainant Shlomo Rechnitz.  One may move to compel the deposition of a party who fails to appear and testify at deposition “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).)

            Rechnitz concedes he failed to appear and testify at his deposition.  He argues doing so was justified because of his medical condition.  Glaser Weil challenges the credibility of Rechnitz’s statements regarding his condition.  As a practical matter, Rechnitz’s alleged condition may be a reasonable basis for not testifying, but it is not a valid objection under Code of Civil Procedure section 2025.410.  That section refers to objections to “a deposition notice that does not comply with Article 2 (commencing with section 2025.210),” not for other reasons a party cannot testify at deposition.       

Rechnitz also argues his testimony is not critical and Glaser Weil should depose other witnesses first.  Generally, a party to an action has the right to decide when and in which order it conducts discovery.  “The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant.”  (CCP § 2025.210(b).)  A party who seeks to delay his deposition “may promptly move for a protective order.”  (CCP § 2025.420(a).)  Rechnitz moved for a protective order on March 14, the day after he filed his opposition to this motion.  Moving for a protective order over a month after failing to appear and only after opposing a motion to compel deposition is not prompt. 

Glaser Weil is entitled to an order compelling Rechnitz’s deposition.            

Sanctions

Glaser Weil moves for $23,041.17 in sanctions against Rechnitz.  “If a motion” to compel deposition “is granted, the court shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2025.450(g)(1).) 

Glaser Weil’s request for monetary sanctions includes $20,725 in attorney fees.  It cannot recover those fees because it is a law firm representing itself.  “[L]aw firms and attorney litigants are precluded from recovering attorney fees for self-representation.”  (Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1488.)  There is no exception for discovery sanctions.  (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020 [“a pro se lawyer cannot recover attorney’s fees as a discovery sanction”]; see also Musaelian v. Adams (2009) 45 Cal.4th 512, 515 [under CCP § 128.7, courts cannot award “sanctions in the form of an award of attorney fees to self-represented attorneys”].) 

Though another law firm, Nemecek & Cole, also represents Glaser Weil in this action, its papers on this motion are signed only by Joel N. Klevens and Alaina Bird of Glaser Weil.  Klevens’s declaration states the attorney fees were for work by unidentified associates and himself.  (Klevens Decl., ¶¶ 15, 18, 21.)  Glaser Weil fails to show it incurred these attorney fees for anything other than as a law firm representing itself. 

Even if Glaser Weil could recover attorney fees, the court finds imposing sanctions for them would be unjust under the circumstances.  Rechnitz presents evidence he had valid reasons for not testifying at his deposition: a medical condition causing “debilitating pain, which is currently being treated with medication that affects [his] ability to process questions and answer competently.”  (Rechnitz Decl., ¶ 10.) 

Glaser Weil is entitled to recover other reasonable expenses as a monetary sanction.  Those other expenses total $2,316.17: $1,120 for the court reporter, videographer, and transcript for the deposition on January 30, 2024 (Klevens Decl., ¶ 15), another $1,120 for the deposition on February 8, 2024 (id., ¶ 18), and $76.17 “for hearing reservation and filing fees” (id., ¶ 21).  It is just to impose $2,316.17 in sanctions against Rechnitz.  If not, Glaser Weil would bear those expenses.  Rechnitz may have had a valid reason for not attending the depositions, but he is responsible for the depositions not going forward.  Glaser Weil did nothing to prevent the depositions. 

Disposition

            Plaintiff/cross-defendant Glaser Weil Fink Howard Avchen & Shapiro LLP’s motion to compel deposition of defendant/cross-complainant Shlomo Rechnitz is granted.  Shlomo Rechnitz is ordered to attend and testify at deposition within 20 days. 

            Defendant/cross-complainant Shlomo Rechnitz is ordered to pay Glaser Weil Fink Howard Avchen & Shapiro LLP $2,316.17 in sanctions within 20 days.