Judge: David A. Hoffer, Case: 30-2020-1137497, Date: 2022-08-22 Tentative Ruling

The “Motion to Compel Deposition of Plaintiff Milton Crews Clark, Request for Monetary Sanctions Against Plaintiff and his Counsel of Record in the Sum of $6,270.20, and Request for Terminating Sanctions,” filed on 7/14/22 by moving parties Golden Ticket Real Estate II, Inc. and David Michael Delaney (here collectively “MPs”), is GRANTED IN PART.

As a preliminary matter, Plaintiff’s counsel has continued to make personal, disparaging, and unprofessional comments about the other attorneys in the case, despite two prior orders specifically addressing such conduct. (See M.O.s of 10/18/21 and 4/18/22.) As previously noted, personal attacks on opposing counsel are unprofessional and inappropriate.  (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 130, 132–134.) Yet Plaintiff’s Opposition to this motion again refers to defense counsel having acted “with their usual, deceptive, and dishonest practices.” (See ROA 654 at pp. 2 and 5.) Mr. Naghash has also made such statements under oath.  (See ROA 656 at ¶ 17 [“Consistent with their usual, deceptive, and dishonest practices and gamesmanship…”].) 

An Order to Show Cause re: Sanctions against plaintiff's counsel Mr. Roger Naghash for failure to comply with the Court’s rulings on 10/18/21 and 4/18/22 is thus scheduled for 9/12/22 at 1:30 p.m. in Department C-16.

As for the merits of this Motion, this Court already ordered on 4/18/22 that Plaintiff Milton Crews Clark (“Plaintiff”) appear for his deposition. That deposition commenced on 5/4/22, but was not completed due to Plaintiff’s stated inability to proceed.  (Although Plaintiff’s counsel presents an entirely different characterization of events, the transcript plainly refutes that claim - see e.g. ROA 656 Ex. C, at pp. 127 and 154-156.)

At a discovery conference on 5/6/22, the parties addressed the dispute concerning the deposition and the Court directed counsel to prepare a stipulation as to the continued deposition, among other things. But Plaintiff’s counsel thereafter refused to sign a stipulation consistent with the agreements reached at that conference. (See M.O. of 6/1/22.)  On 6/17/22, the defense thus noticed the continued deposition for Plaintiff for 6/29/22. (Baghdassarian Decl.,  ¶ 8, Ex. 6.)  Plaintiff responded with objections on 6/22/22 in which Plaintiff refused to appear for any continued deposition. (Id. at ¶ 10, Ex. 8, p. 2.)  Plaintiff also asserted objections, but the objection based on C.C.P. § 1985.3 was baseless, as the notice was to a party. (See C.C.P. § 2025.280(a).)  None of the other objections were even potentially sufficient to excuse Plaintiff’s nonappearance.  Yet Plaintiff failed to appear.

As Plaintiff was previously ordered to appear for his deposition but then prevented the defense from completing it, and then failed to appear for the continued examination as noticed, the request to compel the continued deposition of Plaintiff is granted. The Court will set an imminent and specific date for the continued deposition at the time of the hearing. 

MPs’ request for sanctions is GRANTED IN PART under C.C.P. §§2023.010(d), (e), (g) and (h), 2023.030(a), and   2025.450(g)(1), for the reasons stated above. The Court finds that the hourly rate and time claimed are reasonable here, except that the time claimed for the hearing appears excessive. The Court thus imposes sanctions in the reduced sum of $5,970.20 on both Plaintiff and his counsel of record, Law Offices of Roger E. Naghash, jointly and severally, here.  Such sanctions are to be paid to MPs, through their counsel of record, within 60 days after service of notice of this ruling.

However, MP’s request for terminating sanctions is DENIED, without prejudice.  Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 606.) The Court is not persuaded that Plaintiff’s conduct in discovery to date warrants a terminating sanction, although continued misconduct could warrant such a result.

Counsel for MPs is ordered to give notice of this ruling.