Judge: Joel L. Lofton, Case: EC068858, Date: 2023-01-03 Tentative Ruling

Case Number: EC068858    Hearing Date: January 3, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      January 3, 2023                                  TRIAL DATE: March 7, 2023

CASE:                         JOHN C. LUKES v. GLENN GOLDER, an individual; SOTHEBY’S INTERNATIONAL REALTY, a California corporation; GREGORY ROLLIN PROUT, an individual; N3 INC., a California corporation dba PACIFIC REALTY CENTER; MKK CAPITAL LLC, a limited liability company, and DOES 1 through 25. 

CASE NO.:                 EC068858

MOTION TO QUASH

MOVING PARTY:               Defendants Gary Casmano, Michael Kronsburg, and MKK Capital LLC (“Moving Parties”)

RESPONDING PARTY:      Plaintiff John C. Lukes and Defendants Glenn Golder and Sotheby’s International Realty

SERVICE:                              Filed November 8, 2022

OPPOSITION:                       Filed December 19, 2022.

REPLY:                                   Filed December 23, 2022

RELIEF REQUESTED

            Moving Parties move to quash Defendant Sotheby’s International Realty’s Notice of Deposition for Plaintiff’s deposition and for a protective order.

BACKGROUND

             This case arises out of Plaintiff John C. Lukes’s (“Plaintiff”) claim that a property he purchased contained serious and undisclosed defects. Plaintiff filed this complaint against Defendants Glenn Golder (“Golder”), Sotheby’s International Realty (“Sothesby”), Gregory Rollin Prout (“Prout”), N3 Inc. (“N3”), dba Pacific Realty Center, MKK Capital LLC (“MKK”), Clipper Commodities, Inc. (“Clipper”), Gary Casmano (“Casmano”), Joseph Gorman (“Gorman”) and Michael Kronsburg (“Kronsburg”).

Plaintiff filed a fifth amended complaint (“FAC”) on March 16, 2022, alleging thirteen causes of action for (1) breach of contract for sale of real property, (2) violation of Civil Code section 1102 et seq., (3) fraudulent concealment, (4) breach of fiduciary duty, (5) fraud, (6) breach of duty to disclose, (7) breach of duty to be honest and truthful, (8) negligence, (9) negligent misrepresentation, (10) constructive fraud, (11) breach of contract (broker), (12) civil conspiracy, and (13) aiding and abetting breach of fiduciary duty.

TENTATIVE RULING

            Moving Parties’ motion to quash Plaintiff’s deposition, or in the alternative for a protective order, is DENIED.

            All requests for sanctions are DENIED.

LEGAL STANDARD

“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.” (Code Civ. Proc. section 2025.410, subd. (a).) “In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code Civ. Proc. section 2025.410, subd. (c).)

DISCUSSION

            Motion to Quash

             The primary issue presented is whether Moving Parties’ counsel is entitled to be physically present at Plaintiff’s deposition.

            Moving Parties provide that on October 25, 2022, Defendant Sotheby’s International Realty served a Notice of Deposition to take Plaintiff’s deposition. (Ferrari Decl. ¶ 3, Exhibit A.) Plaintiff’s deposition was noticed for November 9, 2022, and was scheduled to be conducted remotely. (Ibid.) Moving Parties’ counsel provides that he attempted to reach an agreement for a completely in-person deposition or to make arrangements to be in the same room as Plaintiff during the deposition. (Id. ¶ 4.)

            “Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.” (Code Civ. Proc. section 2025.310, subd. (b).)

            Moving Parties contend that Code of Civil Procedure section 2025.310, subdivision (b), (“section 2025.310”) entitles him to be in the same room as Plaintiff during the deposition. Moving Parties is incorrect. The plain language of section 2025.310 provides that a party or attorney of record “may, but is not required to, be physically present”. The statute does not provide any language to establish that a remote deposition is impermissible.

            Further, California Rules of Court Rule 3.1010, subdivision (a), provides that “[a]ny party may take an oral deposition by telephone, videoconference, or other remote electronic means”, provided certain procedural requirements are met. California Rules of Court Rule 3.1010, subdivision (b), provides that “[a]ny party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means”.

            Both the Code of Civil Procedure and California Rules of Court provide a mechanism for a party or attorney to appear for a deposition remotely. The Court recognizes that Moving Parties have a strong preference to be physically present at Plaintiff’s deposition and it appears that the other parties have been less than cooperative in making that a possibility. However, Moving Parties’ motion, in effect, seeks to mandate that counsel be allowed to be physically present, but Moving Parties have failed to identify an authority that provides their counsel is entitled to physically appear at another party’s deposition if remote access was provided. Section 2025.310 merely provides a permissible avenue for Moving Parties’ counsel to be physically present.

            Moving Parties’ motion to quash and a motion for a protective order is denied.

            Sanctions

            Moving Parties also request sanctions totaling $2,400. In opposition, Defendant Glenn Golder and Sotheby’s International Realty argue that Moving Parties should be sanctioned in the amount of $2,800.

            “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 quash a deposition notice, 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.” (Code Civ. Proc. section 2025.410, subd. (d).)

            Moving Parties’ motion lacks a legal basis for the relief sought. However, because it appears that the parties have been disinclined to meet and confer on the issue of whether Moving Parties’ counsel could be physically present at Plaintiff’s deposition, circumstances exist the make sanctions unjust and all requests for sanctions are denied.

CONCLUSION

            Moving Parties’ motion to quash Plaintiff’s deposition, or in the alternative for a protective order, is DENIED.

            All requests for sanctions are DENIED.

Dated:   January 3, 2023                                 ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org