Judge: Douglas W. Stern, Case: 20STCV47167, Date: 2023-03-24 Tentative Ruling

Case Number: 20STCV47167    Hearing Date: March 24, 2023    Dept: 68

Pellitteri v. Krane & Smith 20STCV47167

The Court has read the deposition transcript.  Rarely has the Court seen such obstructive behavior by an attorney as that undertaken by Plaintiff’s counsel Samuel D. Almon.  Virtually every question drew an improper objection.  When the witness failed to answer the question (which was a significant portion of the time) counsel for Plaintiff routinely prevented Defendant’s counsel from seeking an answer (or at least attempted to prevent an answer from being obtained).  “Asked and Answered” was  perhaps the most utilized three words in the transcript.  But rarely was anything answered.

The Court shall not catalogue all the conduct of Plaintiff’s counsel.  (Nor does the Court see any value in a Separate Statement that would merely burden the court with a very large document.)  There are many examples that could be set forth.  This is but one.

“Q  Okay.  In the context of this litigation that we’re here for today did you do anything to search for documents relevant to this case?

MR. ALMON:  I’m going to object on the basis of attorney-client privilege. The manner in which plaintiff searched for documents is attorney-client privilege and work product so I instruct her not to answer. If you have issues with our -- with discovery in this case we can meet and confer on that through the discovery process.”  Pg. 114:10-19.

Little was obtained from Plaintiff in her deposition.  She evidenced a meaningful lack of memory.  Yet Plaintiff’s counsel attempted to preclude questioning about her inability to recall.  And the witness ultimately professed to have no memory problems.  She thereafter seemed incapable of remembering much.

It appears that about half the time the speaker is counsel for Plaintiff making improper objections, with few answers provided by the sworn witness.  When Plaintiff failed to answer, Plaintiff’s counsel would next include objections that the question had been asked and answered.  Here is but one example.

“Q  I’m not talking about [paper documents] in your possession in the room you’re in right now. I’m talking about in your general possession do you have paper documents regarding your product development cases, whether that be in your house, in your garage, your office, anywhere?

[Almon interposes an objection and there is colloquy.]

Q  Do you understand the question Ms. Pellitteri?

A  Say that again, the question.

Q  Sure, I’m just trying to understand if you have any paper documents concerning your product development business.

A  I – go ahead. I’m sorry. I keep forgetting to wait.

MR. ALMON:  I said objection. The question has been asked and answered.

MR. BROOKS:  Go ahead.

THE WITNESS:  Whatever my answer was.

BY MR. BROOKS:

Q  What was your answer?

A  I don’t recall now, if you can tell me.

THE COURT REPORTER:  I never heard an answer because there was an objection.”  Pg. 120:13-121:22

The Plaintiff’s testimony regarding the claimed assignment and her declaration attesting to the assignment was totally evasive and non-responsive and her attorney actively and improperly precluded Defendant from obtaining an answer.  (Pages 315-339.)

The purpose of the deposition shall be fulfilled.  The Plaintiff shall provide sworn testimony and responsive answers.  Improper objections shall not continue to interfere with the deposition process.  Improper instructions not to answer questions shall be ruled upon by the Court at the continued deposition.

Defendant’s Request for Judicial Notice is DENIED.  The Court is aware of the appellate decision in the underlying case that resulted in this malpractice case.

The Motion is GRANTED.

1.       Plaintiff is ordered to appear for further deposition to take place in Department 68 of the Stanley Mosk Courthouse.  The parties shall confer prior to the hearing of this motion to select a date within the next 2 weeks for conducting the deposition.

2.       Given the prior conduct of Plaintiff’s counsel, the Court shall allow at least 7 additional hours of deposition time for Plaintiff’s deposition.  That time may be extended should the behavior observed in the prior sessions continue.

3.       Plaintiff Marcia Pellitteri and her counsel Makarem & Associates are ordered to pay sanctions in the amount of $5,720 to Defendant’s counsel within 45 days of service of this Order on Plaintiff’s counsel.