Judge: John J. Kralik, Case: 23BBCV00663, Date: 2024-07-26 Tentative Ruling

Case Number: 23BBCV00663    Hearing Date: July 26, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Michael Green, Mia Cordes, Delia Reed, Zarinah Reed, and Jimmie Henry (“Plaintiffs”) allege that they reside at 6705 Riverton Avenue, North Hollywood, CA 91606 in various units.  Michael Green and Mia Cordes reside in Apartment 13, Jimmie Henry resides in Apartment C1, and Delia Reed and Zarinah Reed reside in Apartment 21.  Defendant Royal Garden Apartments Inc. (“Defendant”) is alleged to be the owner, agent, and manager of the 6705 Riverton Avenue property.  Plaintiffs allege that the premises have an infestation of roaches and rodents, lack adequate gas facilities, and lack smoke detectors.  They allege that the premises are uninhabitable. 

The complaint, filed March 23, 2023, alleges causes of action for: (1) breach of warranty of habitability; (2) breach of covenant of quiet enjoyment; (3) nuisance; (4) negligence (Civ. Code, §§ 1714(a), 3333); (5) premises liability (negligence per se); (6) unfair business practice and unfair competition; and (7) IIED.  

On August 16, 2023, Plaintiffs named J.K. Residential Services, Inc. as Doe 1. 

B.     Motions on Calendar

On June 12, 2024, Defendant filed a motion to compel the attendance, uninterrupted and without coaching testimony and the production of documents, of Plaintiff Michael Green.  On June 28, 2024, Plaintiff filed an opposition brief.  On July 2, 2024, Defendant filed a reply brief.

On June 12, 2024, Defendant filed a motion for protective order preventing Plaintiffs’ counsel from coaching the deponent and speaking on the cell phone during the deposition or, alternatively, appointing a discovery referee at the expense of Plaintiff.  On June 26, 2024, Plaintiff filed an opposition brief.  On June 27, 2024, Defendant filed a reply brief.

DISCUSSION RE MOTION TO COMPEL DEPOSITION

            Defendant moves to compel the deposition of Mr. Green, uninterrupted and without coaching testimony, and for the production of documents. 

Defendant argues that it has attempted to take Mr. Green’s deposition on multiple occasions, only to be notified about last-minute changes to time, location, and participation of Mr. Green and Plaintiffs’ counsel.  Defendant argues that Plaintiffs did not object to Defendant’s deposition notices and that Plaintiffs have not produced documents.  The parties met and conferred regarding the deposition of Mr. Green set for May 14, 2024.  On May 9, 2024, Plaintiffs’ counsel confirmed the deposition and stated that the time should be at 12:00 p.m. as Mr. Green no longer lived in California but would be in town that day.  (Mot., Ex. C.)  On May 13, 2024, Defendant accommodated the request by contacting the court reporter and moving the start time.  (Mot., Ex. C.)  That same day, Plaintiffs’ counsel emailed stating that Mr. Green would not be available in person, but could appear remotely as he lived in Las Vegas, Nevada.  (Mot., Exs. E-G.)  Defense counsel responded that the last-minute changes were unacceptable and that the deposition would be going forward at the noticed time and location.  (Mot., Ex. G.)  On May 14, 2024 at 10:00 a.m., the deposition went forward, but Plaintiffs’ counsel and Mr. Green did not appear, such that a notice of nonappearance was taken.  (Mot., Ex. I.)  

Plaintiffs argue that they informed defense counsel that Mr. Green lived in Nevada and would be available to appear for his deposition remotely or in Las Vegas.  They argue that despite attempts to set another deposition date or set a remote deposition, Defendant has refused to meet and confer regarding Mr. Green’s deposition. 

Prior to the deposition going forward on May 14, 2024, there appears to have been miscommunication between the parties regarding Mr. Green’s whereabouts or his residence.  On May 9, 2024, Plaintiffs’ counsel sought to push back the deposition time, stating that Mr. Green would be in town and available to attend his deposition.  On May 13, 2024, Plaintiffs’ counsel informed defense counsel that Mr. Green did not live in California and would now be made available for a remote deposition.  It is not clear when Plaintiffs’ counsel became aware of Mr. Green’s residency and whether this information could have been disclosed earlier.  However, based on the papers provided by the parties, it appears that Plaintiffs’ counsel disclosed Mr. Green’s Nevada address on May 13, 2024—one day before the noticed deposition. 

            The parties do not dispute that Defendant may take the deposition of Mr. Green.  Rather, Plaintiffs’ counsel has offered to make Mr. Green available remotely or in person in Las Vegas, although notice of Mr. Green’s new residency was not provided until only a day prior to the noticed deposition date.  Further, Defendant knew that Mr. Green and Plaintiffs’ counsel were not able to make the deposition on May 14, 2024 at 10:00 a.m., but proceeded to conduct the deposition for that time.  (In the opposition brief, Plaintiffs argue that although they gave notice of Mr. Green’s non-residency, defense counsel failed to grant the accommodation for a slight change of time to allow Mr. Green to travel to California. [Opp. at p.5.].  However, this argument appears to contradict the emails wherein Plaintiffs’ counsel stated that Mr. Green would be available remotely for his deposition or that Defendant could conduct the deposition in Las Vegas.)  

            At this time, the Court will grant the motion to compel Mr. Green’s deposition as neither party disputes that Mr. Green’s deposition should go forward.  However, the parties should meet and confer regarding how the deposition will be conducted—in person or remotely.  Defendant should re-notice Mr. Green’s deposition, taking into consideration his non-residency in California.  (CCP § 2025.250(a) [“Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.”].)  Further, as no documents were produced and the request for documents was not objected to nor addressed in the opposition brief, Mr. Green is ordered to produce the documents requested prior to the deposition.

Defendant seeks $2,589.46 in sanctions against Mr. Green and his counsel, which accounts for $1,572.50 in attorney’s fees and $1,016.85 for the cost of the non-appearance.  (Flesch Decl., ¶¶19-23.)  Plaintiffs seek $3,200 in sanctions against Defendant for the time spent by counsel to oppose the motion.  (Ekpenisi Decl., ¶21.)  At this time, the Court declines to award sanctions on this motion.  The parties should have engaged in further meet and confer efforts once they realized that the May 14, 2024 deposition would not be going forward as discussed in their emails and based on Mr. Green’s updated residency.  While the process of scheduling the deposition may have been frustrating for both counsel, both counsel are tasked with acting with civility towards one another in scheduling a deposition.  (See LASC Local Rule, Appendix 3.A. Guidelines for Civility in Litigation at (e)(2) [“In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the client’s rights.”].)  If further issues arise regarding the inability to conduct Mr. Green’s deposition or Mr. Green’s deposition was unnecessarily delayed, the Court will consider imposing sanctions at that time. 

DISCUSSION RE MOTION FOR PROTECTIVE ORDER

            Defendant moves for a protective order so that it can depose Plaintiffs, uninterrupted and without coaching by Mr. Ekpenisi. 

CCP § 2025.420 states in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

…

(5) That the deposition be taken only on certain specified terms and conditions.

(CCP § 2025.420.) 

Defendant argues that Plaintiffs’ counsel Macauley Ekpenisi has a history of disruptive conduct during depositions and last-minute requests prior to depositions going forward.  With respect to Plaintiff Mia Cordes’ deposition scheduled for May 22, 2024 at 10:00 a.m., Mr. Ekpenisi requested on May 20, 2024 that the deposition start at 11:30 a.m. and be conducted remotely.  On May 21, 2024, Mr. Ekpenisi asked that Ms. Cordes’ deposition be conducted at 2:00 p.m., as he had 3 different unlawful detainer actions in Pasadena courthouse on May 22, 2024.   Defendant denied these requests and Plaintiffs’ counsel confirmed that the deposition would go forward.  Defendant states that Ms. Cordes’ deposition began on May 22, 2024 at around 10:00 a.m., but during the deposition, Mr. Ekpenisi got on his cell phone, began talking about an unrelated matter with a federal court judge, and left the deposition.  (Mot., Ex. J.)  Upon his return, Defendant argues that Mr. Ekpenisi began coaching Ms. Cordes before she had an opportunity to answer a question (or began answering deposition questions himself), and when instructed not to coach Ms. Cordes, Mr. Ekpenisi began pointing to documents to inform Ms. Cordes how to respond.  (Mot., Ex. K, Ex. L.)  Defendant argues that similar conduct occurred in Plaintiffs Zarinah and Delia Reed’s depositions as Plaintiffs’ counsel showed up 45 minutes late to the depositions, made phone calls during the depositions, and coached the witnesses.  (Mot., Ex. M [Zarinah Reed Depo. re start time of deposition]; Exs. N and O [Mr. Ekpenisi answering questions on Zarinah Reed’s behalf]; Ex. P [Mr. Ekpenisi answering questions on Delia Reed’s behalf during her deposition].)  Defendant also refers to the motion to compel Mr. Green’s deposition to argue that Mr. Ekpenisi has a history of making last-minute requests for depositions.

            In opposition, Plaintiffs argue that they requested accommodations for their counsel’s scheduling conflicts, but Defendant refused to make such accommodations before the depositions or during the depositions (when Mr. Ekpenisi asked for a short break).  However, Plaintiffs have not shown why they did not object to deposition notices based on scheduling conflicts or seek accommodations earlier.  Based on the ordinary business of the courts, advance notice of hearings is given to litigants and their counsel regarding hearing dates and times.  Further, the deposition transcript shows that Mr. Ekpenisi disrupted his own client’s answer by seeking a short break for himself to handle a federal matter.  (See Mot., Ex. J at pp.12-13.) 

Plaintiffs argue that the motion is not accompanied by a meet and confer declaration, such that this motion is improper.  However, based on counsels’ interactions over email and at the deposition, it appears that further meet and confer efforts on this particular topic would have been ineffective.  For example, during Ms. Cordes’ deposition, when defense counsel asked Mr. Ekpenisi whether he understood that when defense counsel was asking Ms. Cordes a question, he was expecting an answer from her, Mr. Ekpenisi stated: “No, it’s not.”  (Mot., Ex. K at p.20.)  Based on the deposition record, Mr. Ekpenisi responded to questions on behalf of his clients/the deponents despite being asked repeatedly not to answer or coach the witness. 

            There appears to be a course of conduct regarding Mr. Ekpenisi making last-minute requests for accommodations of depositions (to move the times or to make them remote), appearing to the depositions late, interrupting defense counsel or the witness, and answer on behalf of his clients or coaching them on how to respond to deposition questions.  For these reasons, the motion for a protective order is granted such that the Court will order Mr. Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi.  Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege.

            In the notice of motion, Defendant seeks $3,211 against Plaintiffs’ counsel, while the conclusion in the memorandum of points and authorities seeks $3,630 against Plaintiffs.   Defense counsel Daniel G. Flesch’s declaration seeks $3,211 in sanctions (= 10.5 hours x $185/hour, plus $1,268.60 in costs for the deposition of Ms. Cordes). (Flesch Decl., ¶¶27-31.)  In opposition, Plaintiffs seek $3,600 in sanctions.  The Court will award sanctions to Defendant in the reasonable sum of $2,500 for counsel’s time spent on this matter, plus $1,268.60 for Ms. Cordes’ suspended deposition. 

CONCLUSION AND ORDER

Defendant Royal Garden Apartments, Inc.’s motion to compel the deposition of Plaintiff Michael Green is granted.  The parties are ordered to meet and confer regarding a mutually agreeable date and time to conduct the deposition and whether the deposition will be proceeding remotely or in person.  Following meet and confer efforts, Defendant is ordered to re-notice Plaintiff Michael Green’s deposition on the mutually agreeable date and time or, if the parties were unable to agree upon a date, within 60 days of this order.  Plaintiff is ordered to produce documents responsive to the request for documents prior to the deposition date.  No sanctions will be awarded on this motion. 

Defendant Royal Garden Apartments, Inc.’s motion for a protective order is granted such that the Court will order Macauley Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi.  Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege.   Plaintiffs’ counsel is ordered to pay monetary sanctions in the amount of $3,768.60 to Defendant, by and through counsel, within 20 days of notice of this order.

Defendant shall provide notice of this order.

DATED: July 26, 2024                                                           ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court