Judge: Cherol J. Nellon, Case: 20STCV12553, Date: 2024-03-18 Tentative Ruling

Case Number: 20STCV12553    Hearing Date: March 18, 2024    Dept: 14

Rodin v. Westbourne

Case Background

Plaintiff alleges that he is a member of a homeowners association. The association has been deadlocked for nearly two decades and has never held elections to select a board of directors who could act on its behalf. Nevertheless, in 2006, one of the defendants essentially appointed herself as director and implemented various policies and fee assessments which impacted Plaintiff. Plaintiff retained counsel and settled the issue – at least one assessment was withdrawn pursuant to this settlement.

            Then, in 2019, a different defendant essentially appointed himself director and recorded a notice of default and HOA lien against Plaintiff’s house, claiming that he hadn’t paid his assessments. This notice was then served on Plaintiff at the wrong address. Nevertheless, Plaintiff discovered the lien and in October of 2019 he protested in writing to the lien servicer. Defendants ignored this protest and held a foreclosure sale in February of 2020, selling the house for $502,000.00. Plaintiff then filed this lawsuit and obtained a preliminary injunction preventing the transfer of title pursuant to this sale.

Plaintiff views this series of events as nothing less than attempted theft. It is his position that the lien and notice of default are invalid because, among other things (a) the HOA has no properly elected directors and thus cannot legally undertake any such measures (b) the notices were not properly served (c) the charges billed to him were invalid, and (d) even if everything else is valid, he had 90 days to pay the back HOA fees and redeem his house, which he had the funds to do. In proof of that ability, he posted a bond in the amount of the back fees: $30,788.87.

On August 4, 2020, Defendant SBS recorded two notices of rescission, indicating that the notice of default and foreclosure sale have been rescinded pursuant to Plaintiff’s right of redemption. Plaintiff maintains this case to establish whether or not the fees were ever owed, to clear all possible clouds on his title, and to recover incidental damages.

Complaint

On March 30, 2020, Plaintiff filed his verified Complaint for (1)-(2) Declaratory Relief, (3) Quiet Title, (4) Wrongful Foreclosure, (5) Cancellation of Instruments, (6) Unfair Competition, (7) Civil Conspiracy, and (8) Violation of Civil Code § 5145 against Defendants Westbourne Townhouses Homeowners Association (“HOA”), Pegasus Management Maintenance and Real Estate, Inc. (“Manager”), Robert P. Heiman (“Heiman”), Leslie M. Rabb (“Rabb”), SBS Trust Deed Network (“SBS”), Mitchell J. Willett (“Willett”), Catamount Properties 2018, LLC (“Catamount”), and DOES 1-10.

On June 15, 2020, Defendant Catamount filed its Answer.

On June 25, 2020, Judge James C. Chalfant, sitting in Department 85, issued a preliminary injunction halting any foreclosure proceedings.

On July 13, 2020, Defendant Rabb filed her Answer.

On July 14, 2020, Defendants Manager and Heiman filed their respective Answers.

On September 17, 2023, this court sustained the demurrer of Defendants SBS and Willett to the third and sixth causes of action, without leave to amend.

On September 28, 2020, Defendants SBS and Willett filed their joint Answer.

            On October 23, 2023, pursuant to a stipulation and with leave of court, Intervenor Allstate Insurance Company (“Allstate”) filed a document erroneously captioned “Verified Complaint in Intervention.” The document was in fact a verified answer, filed on behalf of Defendant HOA, Allstate’s insured.

            On December 1, 2020, Plaintiff voluntarily dismissed Defendant Catamount, with prejudice.

Catamount Cross-Complaint

            On June 15, 2020, Defendant Catamount filed a Cross-Complaint for (1) Comparative Indemnity, (2) Equitable Indemnity, (3) Contribution, and (4) Declaratory Relief against Cross-Defendants HOA and MOES 1-20.

            On July 21, 2020, Cross-Complainant Catamount voluntarily dismissed its cross-complaint, with prejudice.

SBS and Willett Cross-Complaint

            On September 28, 2020, Defendants SBS and Willett filed a Cross-Complaint for (1) Implied Indemnity, (2) Comparative Indemnity, (3) Declaratory Relief, (4) Equitable Indemnity, (5) Contractual Indemnity, and (6) Contribution against Cross-Defendants HOA, Manager, and ROES 1-50.

            On October 28, 2020, Cross-Defendant Manager filed its Answer.

            On November 9, 2020, Intervenor Allstate filed an Answer on behalf of Cross-Defendant HOA.

Trial Date

Jury trial is currently set for April 15, 2024.

Instant Motion

            Defendants HOA, Manager, Heiman, and Rabb now move this court for an order compelling Plaintiff to sit for deposition. They also seek an order awarding sanctions in the amount of $1,485.00.

Decision

            The motion is GRANTED. If his deposition has not been completed during the briefing period for this motion, Plaintiff is ORDERED to sit for deposition on or before March 22, 2024. Plaintiff is to pay $870 in sanctions to counsel for the moving party within 30 days.

Governing Statute

            Code of Civil Procedure § 2025.450 provides in relevant part as follows:

(a) If, after service of a deposition notice, a party to the action…without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it…the party giving the notice may move for an order compelling the deponent's attendance and testimony.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

            …

(g)(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”

Discussion

            Plaintiff has been served with five different notices of deposition, the latest of which was served on January 29, 2024, and indicates a deposition date of February 28, 2024. (Declaration of Phillip A. Denny Exhibits A-E). That notice was preceded by three email requests for agreeable dates. (Id. ¶¶ 7-8). Plaintiff’s counsel failed to respond to any of these requests. (Id.).

            On February 23, 2024, Plaintiff served an objection to the deposition notice. (Id. Exhibit F). The sole basis for the objection is that Defendants did not consult Plaintiff before selecting the deposition date. This is not a “valid objection,” under Section 2025.450. Although consultation on deposition dates is a common professional courtesy encouraged by this court’s Local Rules, it is not a legal prerequisite to the service of a deposition notice.

In any event, as outlined above, Defense counsel did attempt to consult Plaintiff. And for his part, Plaintiff’s counsel could have used the 25 days between service of the notice and his objections to call Defense counsel and stipulate to a new date. The deposition notice was effective, and Plaintiff was obliged to appear on February 28, 2024.

On February 23, 2024, the same day the objection was served, Plaintiff’s counsel sent Defense counsel a one-line email stating that he was “working on a resolution.” (Declaration of Phillip A. Denny Exhibit G). The parties were eventually able to set up a phone call, which occurred on February 27, 2024; in that phone call, Plaintiff’s counsel said that neither he nor his client would attend on February 28, 2024. (Id. ¶ 15). That is in fact what happened, and Defense counsel took Plaintiff’s non-appearance on February 28, 2024. (Id. ¶ 16).

On March 1, 2024, Defense counsel sent Plaintiff’s counsel a letter asking when his client could be deposed. (Id. Exhibit H). Having heard nothing in response, and with the discovery deadline only two weeks away, Defense filed this motion on March 4, 2024. (Id. ¶ 18).

Plaintiff does not dispute the timeline offered by Defense, or any of the individual details. In opposition, Plaintiff has filed the declaration of his counsel, Mr. Michael D. Murphy. The bulk of that declaration goes to discuss case background and the parties’ efforts to settle the litigation. The most directly relevant portions of Mr. Murphy’s declaration are paragraphs 7-11.

Mr. Murphy represents that, after this motion was filed, Plaintiff had agreed to sit for deposition on March 12, 2024. In the meantime, the parties had (wisely) continued to discuss settlement. On March 11, 2024, Defense counsel verbally asked Mr. Murphy to confirm that the deposition was going forward. In Mr. Murphy’s words, “[a]lthough he did not explicitly say so, I interpreted from [Defense counsel’s] question, that he believed it is reasonable to postpone the deposition for a few more days, in case this new attempt to resolve the case is unsuccessful.” (Declaration of Michael D. Murphy ¶ 9). Plaintiff thereupon sent an email postponing the deposition to an unnamed date.

The court does not find this acceptable. If Plaintiff wishes to bring a lawsuit, he must sit for deposition. If Plaintiff wishes to settle the lawsuit, he may settle it. It is not fair for Plaintiff to put off his deposition during the entire pendency of a four-year case, in the hopes of a settlement which has never seemed to materialize. It is not fair for Plaintiff, after finally agreeing to sit for deposition on almost the last possible day, to again put the matter off to an undetermined date based on his “interpretation” of the intention behind a scheduling question from opposing counsel.

Plaintiff was legally obliged to sit for deposition on February 28, 2024. He did not appear. Defense counsel was forced to file this motion, and they have fulfilled the legal prerequisites for doing so. Trial is in a month. If Plaintiff has not sat for his deposition, he must do so by the end of the week.

Pursuant to Code of Civil Procedure § 2025.450(g)(1), Defense is entitled to recover monetary sanctions for (a) the expense of having a court reporter appear at a deposition that did not occur, and (b) the expense of having to file this motion. Defense has presented evidence that the court reporter and videographer cost them a combined total of $810, and that there was a $60 filing fee for this motion. (Declaration of Phillip A. Denny ¶¶ 20-22). Defense also presents evidence that this motion cost them 3 hours of attorney time. (Id.). However, they present no evidence regarding their hourly rates. In the absence of such evidence, the court cannot award any fees for that time.

Conclusion

            The court is glad to hear that counsel continue to try and settle this case. That is always a wise course of action. However, all counsel have an obligation to continue preparing their case, even while they talk settlement. The one should not prohibit the other, especially in a case of this age. Defense served a valid notice of deposition. Plaintiff did not serve a valid objection. Therefore, the motion is GRANTED. If his deposition has not been completed during the briefing period for this motion, Plaintiff is ORDERED to sit for deposition on or before March 22, 2024. Plaintiff is to pay $870 in sanctions to counsel for the moving party within 30 days.