Judge: Gail Killefer, Case: 19STCV03280, Date: 2022-08-12 Tentative Ruling
Case Number: 19STCV03280 Hearing Date: August 12, 2022 Dept: 37
HEARING DATE: August 12, 2022
CASE NUMBER: 19STCV03280
CASE NAME: West Hollywood
Collision Center v. Elizabeth Kathryn Davies, et al.
MOVING PARTIES: Consolidated Defendants, Hovhannes
Keshishian; Rodolfo Hernandez; Arsen Kazanchian; Holistic Alternative, Inc.
#57/D; Kevork Kazanchian; Onnik Kazanchian
OPPOSING PARTY: Consolidated Plaintiff, Elizabeth Kathryn Davies
TRIAL DATE: September 6, 2022
PROOF OF SERVICE: OK
MOTION: Motion for Protective Order
OPPOSITION: August 1, 2022
REPLY: August 5, 2022
TENTATIVE: Defendants’ motion is granted.
Defendant is to give notice.
Background
This action arises out of Cross-Complainant and Defendant,
Elizabeth Davies’ (“Plaintiff”) accident involving her 2018 BMW and the
corresponding services provided to Plaintiff by Defendants Hovhannes
Keshishian, Rodolfo Hernandez, Arsen Kazanchian, Holistic Alternative, Inc.
#57/D, Kevork Kazanchian and Onnik Kazanchian (collectively “Defendants”)
On October 23, 2020, the court signed a stipulation and
order submitted by Defendants’ counsel ordering the consolidation of this
action with Action No. 19STCV12569 for all purposes, and designating
19STCV03280 as the lead case.
On October 22, 2020, the parties attended a Case Management
Conference before this court. Counsel for Defendants was present and waived
notice. The court set a post-mediation status conference for December 1, 2021;
a final status conference for March 15, 2022; and a jury trial on March 22,
2022. Counsel for Defendants was present and waived notice.
On December 1, 2021, the parties attended a Post-Mediation
Status Conference and informed the court that mediation had not taken place.
Counsel for Defendants was present at that hearing and informed the court that
the corporate defendant’s status had been suspended, so he was not appearing on
its behalf. The court set an order to show cause hearing for January 21, 2022,
and counsel was present. Plaintiff’s counsel was directed to give notice. There
was no proof of service of the notice filed.
On January 21, 2022, Defendants failed to appear before the
court for an Order to Show Cause. Since no reviver was filed Defendant West
Hollywood’s answer was stricken and its claims were dismissed. Counsel for
Plaintiff was ordered to give notice. Notice was filed on February 3, 2022,
with a proof of service on Defendants’ counsel showing electronic service.
On March 15, 2022, Defendants failed to appear for the Final
Status Conference before trial. No changes were made to the scheduled trial
date.
On March 22, 2022, Defendants failed to appear, and after
hearing evidence from Plaintiff, the court found that Plaintiff was entitled to
judgment against remaining Defendants and ordered Plaintiff’s counsel to
prepare a proposed judgment.
On April 4, 2022, Plaintiff submitted a proposed judgment
and served it on Defendants electronically to the same address as the prior
service. On April 7, 2022, Defendants moved to set aside or vacate the March
22, 2022 Judgment and filed an ex parte application to advance the hearing
date. On May 5, 2022, the court granted Defendants’ motion to set aside or
vacate the March 22, 2022 Judgment.
Defendants now move for a
protective order as follows: “will move the court for an order
prohibiting Plaintiffs, through counsel, and their agents, servants and
representatives, from engaging in the following discovery: 1) SUBPOENA FOR
APPEARANCE AT DEPOSITION AND PRODUCTION OF DOCUMENTS – JOAN KENEGOS 2) SUBPOENA
FOR APPEARANCE AT DEPOSITION AND PRODUCTION OF DOCUMENTS – Maria Sandoval 3)
SUBPOENA FOR APPEARANCE AT DEPOSITION AND PRODUCTION OF DOCUMENTS – JEREMY
ROSENBERG.” Consolidated Plaintiff oppose the motion.
Consolidated
Defendants’ Objections
In
defiance of Cal. Rules of Court Rule 3.1354, Defendants have submitted
evidentiary objections without following one of the two allowed formats—namely,
Defendants fail to number the objections and as such, fail to accurately refer
to each objection individually. Although this failure is reason for the court to
overrule the objections entirely, the court will address the objections
individually.
Objections
to the Declaration of Hovanes Margarian
Overruled: 1-3, 5
Sustained: 4, 6-10
Objections
to the Declaration of Elizabeth Kathryn Davies
Overruled: 1-9, 11-12, 15, 17-21
Sustained in part: 10, 16
Sustained: 13-14, 22-29
Meet
and Confer
A motion for a protective order under CCP § 2031.060
must be accompanied by a meet and confer declaration. (CCP § 2031.060(a).) The
declaration must state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented in the motion. (CCP §
2016.040.) “[A] reasonable and good faith attempt at informal
resolution entails something more than bickering with [opposing]
counsel…. Rather, the law requires that counsel attempt to talk the
matter over, compare their views, consult, and deliberate.” (Clement
v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A
determination of whether an attempt at informal resolution is adequate involves
the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87
Cal.App.4th 1006, 1016, internal ellipses omitted.) Where a party fails
to make any real effort at informal resolution, a particularly egregious
failure may justify an immediate and outright denial of further
discovery. (Obregon v. Superior Court (1998) 67 Cal.App.4th
424, 433-34, citing Townsend v. Superior Court (1998) 61
Cal.App.4th 1431, 1437.)
Defendants
submit the declaration of their counsel, Jerry Kaplan (“Kaplan”), in support of
the instant motion. Kaplan attests that “Joan Kenegos, a partner at my firm, has
made reasonable and good faith efforts to reach an informal resolution to each
issue addressed in the motion, however, the parties cannot reach an agreement.
By way of a letter from Consolidated Plaintiff’s counsel dated June 8, 2022,
Consolidated Plaintiff has refused to withdraw the subpoena or modify it in any
satisfactory way.” (Kaplan Decl. ¶ 9.) However, for the first
time, Defendants in their Reply introduced new evidence, namely the Declaration
of their counsel, Joan Kenegos (“Joan Kenegos”) who attests that on May 9,
2022, Kenegos sent an email “explaining my objections to his request to take
the depositions of opposing counsel and a secretary in my office,” further
citing Care Convalescent Hospital v. Superior
Court (2006) 143 Cal.App.4th 1558 to contend
“taking opposing counsel’s attorneys [sic] deposition is rarely if ever
allowed.” (Kenegos Decl. ¶4.)
First, the court
reminds the parties that the purpose of a reply brief is to address arguments
made in the Opposition; it may not be used to raise new arguments, present new
authorities, or introduce new evidence. Supporting authority consistently
provides that points raised for the first time in a reply brief ordinarily will
not be considered because such consideration would either deprive respondent of
an opportunity to counter the argument or require the effort and delay of
additional brief by permission. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, (2002) 98 Cal.App.4th 1316; Marriage
of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 ["Obvious
reasons of fairness militate against consideration of an issue raised initially
in the reply brief."].)
Second, the court notes that neither counsel’s declaration
explains or elaborates that the parties have attempted to meet and confer as to
these depositions, outside of a single email sent with objections to the
depositions which were noticed by Plaintiff’s counsel. The declarations do not
show “a reasonable and good faith attempt
at an informal resolution of each issue presented in the motion.” (CCP §§
2016.040; 2031.060.)
They further do not evince an attempt by the counsels “to talk the matter over,
compare their views, consult, and deliberate.” (Clement v. Alegre,
supra, 177 Cal.App.4th at 1294.) However, as the declarations do not
evince a particularly egregious failure to meet and confer, the court continues
with the parties’ arguments.
Discussion
I.
Legal Authority
“When
an inspection, copying, testing, or sampling of documents, tangible things,
places, or electronically stored information has been demanded, the party to
whom the demand has been directed, and any other party or affected person, may
promptly move for a protective order.” (CCP § 2031.060(a).) “The court, for
good cause shown, may make any order that justice requires to protect any party
or other person from unwarranted annoyance, embarrassment, or oppression, or
undue burden and expense.” (CCP § 2031.060(b.)
II.
Analysis
A. Requested Protective Order
Defendants
seek a protective order regarding subpoenas for the depositions of two opposing
counsel, Joan Kenegos and Jeremy Rosenberg and a secretary who works in
counsel’s office, Maria Sandoval.
(Motion, 4-6.) The depositions of counsel and their secretary were
noticed as “Consolidated Plaintiff alleges that Kaplan Kenegos & Kadin has
been ‘advancing the crimes’ of its clients.” (Motion, 4.)
According
to Defendants, this protective order is required because the requested
depositions are “presumptively improper and must meet an extremely high
standard.” (Motion, 5.) Defendants rely on Carehouse Convalescent
Hospital v. Superior Court to contend that depositions of opposing counsel
are “presumptively improper, severely restricted, and require extremely good
cause.” (Id.)
The
court in Carehouse further explains:
“Attorney depositions chill the
attorney-client relationship, impede civility and easily lend themselves to
gamesmanship and abuse. "`Counsel should be free to devote his or her time
and efforts to preparing the client's case without fear of being interrogated
by his or her opponent.'"” (Carehouse Convalescent v. Superior Court,
supra, 143 Cal.App.4th at 1563.)
Thus,
Defendants explain a three-prong test has been established by the court to
determine the right to deposing opposing counsel. (Motion, 5-6; Carehouse
Convalescent v. Superior Court, supra, 143 Cal.App.4th at 1563 [“To
effectuate these policy concerns, California applies a three-prong test in
considering the propriety of attorney depositions. First, does the proponent
have other practicable means to obtain the information? Second, is the
information crucial to the preparation of the case? Third, is the information
subject to a privilege? ”].) Defendants here further contend that even under
the crime-fraud exception to privileged information, Plaintiff bears the burden
of proof of the existence of a crime or fraud. (Motion, 6.) Defendants explain:
“The crime-fraud exception is ‘a
very limited exception to the [attorney-client] privilege’ and the ‘proponent
of the exception bears the burden of proof of the existence of crime or fraud.’
(Geilim v. Superior Court (1991) 234 Cal.App.3d 166, 174.) To trigger
the crime-fraud exception, a ‘party must make a prima facie showing that the
communication at issue furthered a crime or fraud.’ (State Farm Fire &
Cas. Co. (1997) 54 Cal.App.4th at 643.) ‘Mere assertion of fraud is
insufficient; there must be a showing the fraud has some foundation in fact.’ (BP
Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240,
1262.) ‘[T]he [proponent] must also establish a reasonable relationship between
the fraud and the attorney client communication.’ (Id.) Extreme caution must be exercised when an
accusation is made which will invade the attorney-client relationship in
connection with ongoing litigation. (State Farm Fire & Casualty Co. v.
Superior Court, supra, 54 Cal.App.4th at 644–645.) Crime/fraud exception
only applies to attorney-client privileged materials; it does not apply to work
product privilege. (Id.)” (Motion, 6.)
Thus, Defendants here first
contend Plaintiff has failed to rebut the presumption against deposing counsel
as “Plaintiff has failed to show that (1) she lacked
other practicable means of obtaining the demanded information, and (2) such
information is crucial to her case. Moreover, Plaintiff's deposition subpoena
demands documents covered by the work-product doctrine.” (Motion, 6.)
Defendants point out that Plaintiff has not propounded discovery requests for two
years, emphasizing that Plaintiff has not propounded any discovery on these
Defendants. (Id.) Defendants explain that Plaintiff’s counsel only
requested discovery after this court granted Defendants’ motion and set aside
the judgment in this matter. (Id.) They further contend that the
depositions of opposing counsel are not necessary as they are “not crucial to
her cause” and “fall outside the scope of [Plaintiff’s] Complaint.” (Motion,
7.)
Next,
Defendants contend “there is no evidentiary basis to show [Defendants] engaged
in a crime fraud [sic], let alone that [their] counsel engaged in a
crime or fraud.” (Motion, 7.) Therefore, Defendants contend Plaintiff “attempts
to use inadmissible hearsay evidence to implicate the [Defendants’] involvement
in a crime or fraud,” again emphasizing that no factfinding through discovery
has taken place by Plaintiff’s counsel to establish Defendants’ conduct.
(Motion, 8.) Lastly, Defendants again contend that the requested documents
accompanying the subpoenas are barred by the work product doctrine, which does
not have a crime-fraud exception. (Id.)
In
opposition, Plaintiff first contends that Defendants’ counsel has represented
Defendants in other matters before. (Opposition, 8.) Plaintiff also contends
Defendants have failed to show good cause for the protective order and have not
made reasonable efforts to meet and confer. (Opp., 9.) Also, Plaintiff contends
she “has no other means of obtaining information regarding Defendants who do
not [sic] longer exist as entities.” (Opp., 11.) Plaintiff then contends
counsel’s “longtime representation of Defendants in various cases by the same
Counsel allows [sic] to assume the Counsel is in a unique position with
the access to this type of information.” (Opp., 11.) Plaintiff provides no
supporting authority to justify such an assumption.
Plaintiff
then contends the crime-fraud exception applies because Defendants are mostly “represented
by a singular defense firm in this matter which illustrates unity in form and
purpose among these. Further, Defendant’s Counsel participated directly in the extortion
scheme by filing a lawsuit against Plaintiff.” (Id.) Again, Plaintiff
provides no supporting authority for these contentions or assumptions.
Plaintiff then explains the allegedly fraudulent “scheme,” and makes assertions
as to Defendants’ counsel’s involvement. (Opp., 12-13.) Plaintiff therefore
contends that since counsel has represented Defendants in other matters,
“[t]his gives reason to assume that it was familiar with their practices in
general and was at least aware of the scheme if not directly involved in it,”
and asserts it is “highly unlikely” counsel was unaware of investigations by
the Bureau of Automotive Repairs and the West Hollywood Police Department. (Id.)
Again, Plaintiff provides no supporting authority for these claims.
Plaintiff then contends all
necessary documents are in the possession of counsel, and are otherwise
impossible for Plaintiff to find since most of the named entities no longer
exist. (Opp., 14.) Plaintiff then seeks to rely on Hickman
v. Taylor, (1947) 329 U.S. 495, but that
provides no support as Hickman concerned itself with “non-privileged
facts” where counsel here alleges privilege. (Id.) Plaintiff further
contends that Defendants’ counsel “either failed to investigate” Defendants’
claims or participated in the alleged crimes. (Opp., 14-15.) However, Plaintiff
fails to show how Defendants’ counsel’s filing of a complaint can amount to
such an inference.
Lastly,
Plaintiff explains that Defendants’ unresponsiveness is to blame for the lack
of discovery conducted in this matter, and that Defendants only appeared after
Plaintiff filed judgment against them. (Opp., 15.) Plaintiff contends “Defendants
involvement in a crime/fraud scheme has been established by government agencies/bodies,”
but provides no supporting evidence as to this assertion. (Opp., 17-18.)
It
is undisputed that this motion pertains to privileged documents and the conduct
of opposing counsel, and precedent shows us that the deposing of opposing
counsel and the factfinding regarding such conduct should be done with great
hesitancy. While Plaintiff explains that Defendants’ counsel maintains
information about entities which are no longer operating, Plaintiff does not
show how the three-prong test in Carehouse is satisfied or provide prima
facie evidence that a crime or fraud was committed or perpetrated here. As
“extreme caution must be exercised” with the invoking of the crime-fraud
exception to privilege, the court finds Plaintiff has not established a prima
facie showing that a crime or fraud was committed with the aid or enabling of
counsel. (State Farm Fire & Casualty Co. v. Superior Court, supra,
54 Cal.App.4th at 644–645.)
For
these reasons, Defendants’ motion is granted.
The court may
impose sanctions against any party for engaging in conduct constituting a
“misuse of the discovery process.” (CCP § 2023.030 (a).) Misuse of
the discovery process includes “failing to respond or submit to an authorized
method of discovery.” (CCP § 2023.010 (d).)
Here,
Defendants request monetary sanctions in the amount of $4,631.65 in
connection with this motion. (Motion, 8.) Defendants contend Plaintiff’s refusal
to withdraw or modify the subject subpoena amounts to a “misuse” of the
discovery process. (Id.)
Plaintiff
also requests $2,000 in attorney’s fees in connection with this motion on the
grounds that Defendants should be sanctioned for their lack of good faith
efforts to meet and confer before bringing this motion and no explanations were
offered as to their objections. (Opp., 18-19.)
However, both
parties cite to no legal authority in support of their request for attorney’s
fees. In light of Defendants’ failure to meaningfully meet and confer in their
discussions with Plaintiff’s counsel prior to bringing this motion, and in
further light of the equities between the parties, the court does not find a
misuse of the discovery process to have taken place. Thus, the parties’ requests
are both denied.
Conclusion
Defendants’
motion is granted. Both parties’ requests for attorney fees are denied.
Defendants are to give notice.