Judge: David A. Rosen, Case: 19BBCV00276, Date: 2023-04-21 Tentative Ruling
Case Number: 19BBCV00276 Hearing Date: April 21, 2023 Dept: E
Hearing Date: 04/21/2023 – 8:30am
Case No: 19BBCV00276
Trial Date: 06/12/2023
Case Name: GARY LEFKOWITZ v. KHALED A. TAWNSEY, et al.
2 MOTIONS - TENTATIVE
RULINGS - MOTION TO COMPEL DEPOSITION and MOTION FOR TERMINATING SANCTIONS
MOTION 1
Moving Party: Cross-Complainant, Khaled A. Tawansy
Responding Party: No
Opposition Submitted.
Proof of Service
Timely Filed (CRC Rule 3.1300):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok. The proof of service for the instant motion shows that
D’Attaray was served via mail at 10262 Foothill Boulevard, Lake View Terrace,
California, 91342, the address for which D’Attaray has expressed clear
preference on, inter alia, his client’s operative Answer to the operative cross-complaint.
Although the proof of service for the instant motion lists the same email
address that the Court has on file for D’Attaray’s email address, the proof of
service for the instant motion does not purport to have served this motion via
email. It only states it was served via mail.
No Opposition or Reply submitted.
Moving Papers: Notice
of motion to compel and request for sanctions; Memorandum; William F. Clark
Declaration
Opposition Papers: No
Opposition
Reply Papers: No Reply
RELIEF REQUESTED
Cross-Complainant, Khaled A. Tawansy moves the Court for a motion to compel Cross-Defendant
Franciska K. Von Andrassy’s deposition and request for sanctions in the amount
of $3,390.00. Said motion shall be filed pursuant to CCP §2025.010.
Cross-Complainant requests sanctions due to Cross-Defendant’s failure to attend
her deposition.
BACKGROUND
On 11/09/2021,
Cross-Complainant Khaled A. Tawansy filed a cross-complaint against Cross-Defendants
Gary Lefkowitz, Franciska K. Von Andrassy, and Swiss Corrective Skin Care, LLC.
Cross-Complainant alleged the following cause of action: (1) Breach of Oral
Contract, (2) Breach of Contract Implied in Fact, (3) Breach of Implied-In-Law
Contract, (4) Breach of Fiduciary Duty, (5) Conversion, and (6) Accounting.
On November 29, 2021,
Plaintiff Gary Lefkowitz filed a Third Amended Complaint for Breach of Contract
against Khaled A. Tawansy; Khaled A. Tawansy M.D., a California Corporation;
Raymond Renaissance Surgery Center, a California LLC; Renaissance Surgical
Holdings, a California LLC; Golden State Eye Center, a California Corporation;
Golden State Eye Medical Group, a California Corporation; 95 N. Arroyo, a
California LLC. The TAC was subsequently dismissed.
On December 6, 2019,
Gary Lefkowitz filed a Cross-Complaint alleging 16 causes of action against
what appears to be Cross-Defendants James A. Frieden; Khaled A. Tawansy; Noel
Cabezzas; Robert M. Cohen; Zayda Cabezzas; Nehal Tawansy; and Viability
HealthCare Consultants LLC.
LEGAL STANDARD – MOTION TO
COMPEL DEPOSITION
C.C.P. §2025.450(a) provides, as follows: “If,
after service of a deposition notice, a party to the action or an officer,
director, managing agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without having
served a valid objection under Section 2025.410, fails to appear for
examination, or to proceed with it, or to produce for inspection any document,
electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent’s attendance and testimony, and the production for inspection of
any document, electronically stored information, or tangible thing described in
the deposition notice.”
C.C.P. §2025.450(b) provides, in pertinent part, as
follows:
(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.
TENTATIVE RULING
Cross-Complainant, Khaled A. Tawansy first
noticed the deposition for
Swiss Corrective Skin Care LLC’s Person Most Knowledgeable, Franciska
Von Andrassy, for April 20, 2022. Cross-Complainant met and conferred, but opposing
counsel never responded and the instant deposition never occurred and opposing
counsel never provided available dates for deposition to Cross-Complainant.
Cross-Complainant informed Cross-Defendant’s counsel that his client did not
appear for the April 20, 2022 deposition.
Cross-Complainant then noticed the deposition for Cross-Defendant Franciska
Von Andrassy for September 8, 2022. This deposition was for oral
examination and also requested the production of documents. Cross-Defendant
never served objections, but instead, on September 6, 2022, two days before the
deposition was to occur, emailed Cross-Complainant stating, “My client is not
available on September 8, 2022. But also my understanding is that the case is
stayed based on the pending appeal.” On October 3, 2022, Cross-Complainant notified
Cross-Defendant how Cross-Defendant did not appear for her September 8, 2022
deposition nor did Cross-Defendant produce the documents requested.
Cross-Complainant then noticed the deposition for Cross-Defendant Franciska Von
Andrassy for January 4, 2023. The deposition notice requested oral
examination and the production of documents. Cross-Defendant’s counsel never
served objections. Cross-Defendant’s counsel emailed the day before the
deposition was to occur and said, “I am in Vienna Austria and not due to return
to the United States until January 7, 2023, and my office until January 9,
2023.”
“Any party served with a deposition notice that does
not comply with Article 2 (commencing with Section 2025.210) waives any error
or irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days prior to the
date for which the deposition is scheduled, on the party seeking to take the
deposition and any other attorney or party on whom the deposition notice was
served.” (CCP §2025.410(a).)
Therefore, Cross-Defendant’s email was not a valid
objection, and it was untimely.
On January 9, 2023, Cross-Complainant met and
conferred and stated how Franciska Von Andrassy failed to appear for her
deposition that was noticed for January 4, 2023. In this meet and confer
letter, Cross-Complainant requested dates for a deposition, and Cross-Defendant
did not respond.
Based on the instant set of facts, the Court is
GRANTING Cross-Complainant’s motion to compel the deposition of Cross-Defendant
Franciska K. Von Andrassy.
Sanctions
“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.” (CCP
§2025.450(g)(1).)
Here, moving party requested sanctions in the amount
of $3,390.00.
Cross-Complainant’s counsel arrived at this request of
$3,390 as follows: An hourly rate of $450; 2.4 hours sending correspondence in
attempt to schedule the deposition; 1.5 hours to prepare this motion; 2.75
hours to review opposition and reply papers; 1 hour for the remote appearance;
and $60 for the filing fee.
The Court awards reasonable discovery sanctions of
$1,400.00 to moving party and against Cross-defendant Von Andrassy and her
attorney of record, jointly and severally, to be paid no later than May 15,
2023.
MOTION 2
Moving Party: Cross-Complainant, Khaled A. Tawansy
Responding Party: No
Opposition Submitted.
Proof of Service
Timely Filed (CRC Rule 3.1300):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok. The proof of service for the instant motion shows that
D’Attaray was served via mail at 10262 Foothill Boulevard, Lake View Terrace,
California, 91342, the address for which D’Attaray has expressed clear
preference on, inter alia, his client’s operative Answer to the operative cross-complaint.
Although the proof of service for the instant motion lists the same email
address that the Court has on file for D’Attaray’s email address, the proof of
service for the instant motion does not purport to have served this motion via
email. It only states it was served via mail.
No Opposition or Reply submitted.
Moving Papers: Notice
of Motion for terminating sanctions and request for sanctions; memorandum;
Declaration of William F. Clark
Opposition Papers: No
Opposition
Reply Papers: No Reply
RELIEF REQUESTED
Cross-Complainant, Khaled A. Tawansy moves the Court for a motion for
terminating sanctions and request for sanctions in the amount of $2,175.00.
Said motion shall be filed pursuant to CCP §2030.290(c). Cross-Complainant
requests sanctions due to Cross-Defendant’s failure to provide responses to
Special Interrogatories as ordered by the Court.
CCP 2030.290(c)
“The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a response to
interrogatories, unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust. If a party then fails to obey an order compelling
answers, the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a terminating
sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to that sanction, the court may impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010).” (CCP §2030.290(c).)
TENTATIVE RULING
Cross-Complainant
served special interrogatories on Von Andrassy, and Von Andrassy failed to
respond to said special interrogatories. Cross-Complainant brought a motion to
compel responses to said special interrogatories, and on December 16, 2022, the
Court granted Cross-Complainant’s motion. On December 16, 2022, the Court ordered
Von Andrassy to answer the subject special interrogatories, under oath and
without objections, within 20 days. Further, on December 16, 2022, the Court
ordered sanctions against Von Andrassy in the amount of $1,410.00 to be paid
within 35 days.
Cross-Complainant now moves for terminating sanctions and
monetary sanctions because Cross-Complainant alleges that he sent a letter
demanding responses to the special interrogatories, but he still has not
received a response. Cross-Complainant also requests that the Court strike Von
Andrassy’s Answer to the Cross-Complaint.
Here, the Court DENIES the motion in part and grants
the motion in part. The Court denies Cross-Complainant’s request for
terminating sanctions and denies Cross-Complainant’s request to strike
Cross-Defendant’s answer to the Cross-Complaint.
However, the Court GRANTS Cross-Complainant’s request
for monetary sanctions.
Cross-Complainant requested monetary sanctions in the
amount of $2,175.00. This number was arrived at as follows: An hourly rate of
$450; 0.6 hours to draft the meet and
confer letter requesting the response to the SROGs; 1.4 to prepare this motion;
1.5 to review opposition and prepare reply; 1.2 for remote appearance; and $60
for the filing fee.
The Court awards reasonable discovery sanctions of
$960.00 to movant, and against Cross-defendant Von Andrassy and her counsel of
record, jointly and severally, to be paid no later than May 15, 2023.