Judge: Jon R. Takasugi, Case: 20STCV36831, Date: 2023-10-09 Tentative Ruling

Case Number: 20STCV36831    Hearing Date: October 9, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to compel deposition is GRANTED. Plaintiff’s protective order is GRANTED, with the exception of the appointment of a discovery referee. Defendant is sanctioned, jointly and severally with counsel, $5,250.

            On September 28, 2020, Plaintiff Applied Plant Science, Inc. filed suit against Jose L. Nazar and Land of the Free, L.P., alleging: (1) breach of contract; (2) promissory estoppel; (3) conversion; (4) failure to return security deposit in violation of Civil Code section 1950(G); and (5) unfair competition in violation of Business and Professions Code section 17200.

            Now, Plaintiff moves to compel Nazar and LOTR to appear for depositions, and seeks a protective order. Plaintiff also seeks sanctions totaling $28,970.00.

Discussion

            Plaintiff argues that good cause exists to: (1) compel the depositions of Nazar and LOTF on 10/19/2023 and 10/20/2023, respectively; and (2) grant a protective order, directing Nazar’s attorney Michael Yadegari from making improper objections, coaching the witness, demanding breaks, and ending the deposition early.

            After review, the Court agrees.

            As to the first contention, Plaintiff has been attempting to take Nazar’s deposition since September 2022. On 7/25/2022, Plaintiff’s counsel served Plaintiff’s Notice of Remote Deposition of Jose Nazar for 9/22/2022. (Id. ¶ 4, Ex. 1.) On 9/13/2022, i.e., nearly two months after service of the deposition notice and about a week before the deposition, Nazar’s counsel, Michael Yadegari, sent an email saying his client would not be in town on the date of the deposition and seeking alternative dates for the deposition. (Id. ¶ 5, Ex. 2.) On 9/16/2022, Plaintiff’s counsel sent an email to Yadegari asking him to provide alternative dates for a deposition the week of September 26, 2022. (Id. ¶ 6, Ex. 2.) Yadegari responded by saying that he was “dark” until October 23, i.e., after Plaintiff’s deadline to file a motion for summary judgment.

Plaintiff’s counsel told Yadegari that the only possible explanation for the last-minute cancellation and failure to reschedule until after the deadline to file a motion for summary judgment was that he was trying to prevent Plaintiff from moving for summary judgment. (Ibid.) Plaintiff’s counsel also said that if that was not the case, then Yadegari should have no problem stipulating to continuing trial and motion for summary judgment deadlines so Plaintiff could take the deposition the week of October 23. (Id., Ex. 2.) Yadegari did not respond. (Ibid.) As a result, at the 10/12/2022 case management conference, the Court granted a trial continuance from January 2023 to January 28, 2024, so that Plaintiff could take Defendants’ depositions.

On 10/17/2022, Plaintiff’s counsel sent an email to Yadegari requesting deposition dates for Nazar and LOTF. (Id. ¶ 10, Ex. 3.) After several follow-up emails, Yadegari finally responded by providing dates in February and March 2023, i.e., more than four months out. (Id. ¶ 13, Ex. 3.) Because Yadegari refused to provide any earlier dates, Plaintiff noticed Nazar’s and LOTF’s depositions for March 24, 2023. (Id. ¶ 14, Exs. 4, 5.) However, several months later and a few weeks before the depositions, Yadegari again notified Plaintiff’s counsel that he was unavailable and could not attend the depositions as scheduled. (Id. ¶ 15, Ex. 6.)

Plaintiff re-noticed Nazar’s and LOTF’s depositions for July 28, 2023, i.e., after the parties conducted mediation. Nazar’s deposition was set for 10:00 a.m., and LOTF’s deposition was scheduled for 1:00 p.m. However, Nazar’s deposition lasted only fifty minutes after it was prematurely ended by Nazar’s counsel, and LOTF’s deposition never commenced.

In support of its contention that Nazar and counsel engaged in bad faith throughout the deposition, Plaintiff submitted a number of examples including:

-         While Nazar’s deposition was set for 10:00 a.m., it did not start until 10:40 a.m. because Nazar was late.

-         Prior to the deposition commencing, Yadegari handed Plaintiff’s counsel a binder of documents responsive to the Request for Production of Documents contained in the Nazar deposition notice. The binder, however, did not contain any written communications itemizing damage to the Premises to APS after the June 24, 2019, walkthrough and before July 21, 2019.

-         At the beginning of the deposition, Yadegari asserted objections by simply stating “objection” and then the bases for objection, e.g., “Objection. Speculation.” See e.g., id., Ex. 9 at 69–70 (Nazar Tr. at 12:10–12, 13:12–14). But that was short-lived, and Yadegari resorted to speaking objections in an attempt to coach Nazar. For example, Plaintiff’s counsel asked Nazar if he had seen the Deposition Notice prior to the deposition. Nazar confirmed that he had not. See id., Ex. 9 at 73 (Nazar Tr. at 16:10–12). Plaintiff’s counsel then asked Nazar if it was fair to say that because he had not seen the Deposition Notice (and therefore the RFP), Nazar did not search for any of the documents requested. Instead of allowing Nazar to answer or simply asserting an objection, Yadegari responded by testifying on behalf of Nazar. See id., Ex. 9 at 73–74 (Nazar Tr. at 16:22–17:12) (“Objection. His counsel did so for him” . . . “we also provided that in this book”); id., Ex. 9 at 74–75 (Nazar Tr. at 17:21–18:8) (“I’ll object as he delegated that duty to me and I did that for him”); id., Ex. 9 at 75 (Nazar Tr. at 18:9–15) (“He did so through his attorney.”).

-         In total, Yadegari asserted speaking objections and/or testified for Nazar twenty-five times during only fifty minutes of testimony. See id., Ex. 9 at 71–79, 83–84, 86, 92, 94–95, 97–99. (Nazar Tr. at 14:2–4; 15:24–16:1; 17:1–5; 17:10–11; 18:1–2; 18:7–8; 18:11– 12; 19:3–4; 20:1–2; 20:24–21:1; 22:14–15; 26:19; 27:5–7; 29:2–4; 29:16–19; 35:7–8; 37:3; 37:7– 8; 37:14–16; 37:21; 38:1–2; 38:4–6; 40:25–41:2; 41:23–42:16; 42:23–24).

-         Eventually, Nazar admitted that he did not search for any of the documents identified in the RFPs. See Dean Decl., Ex. 9 at 78–79 (Nazar Tr. at 21:21–22:5). Plaintiff’s counsel then asked Nazar if he searched for any documents relating specifically to RFP No. 10, which sought any documents relating to the June 24, 2019, walkthrough at the Premises. See id., Ex. 9 at 79 (Nazar Tr. at 22:8–13). Yadegari frantically objected by saying, “I’m going to take a five-minute break. Let’s take a five-minute.” See id., Ex. 9 at 79– 80 (Nazar Tr. at 22:8–23:6). Plaintiff’s counsel rejected Yadegari’s attempt to disrupt the deposition and coach the witness. But Yadegari refused to accept this and continued to demand a break so that he could coach Nazar on how to respond. See id., Ex. 9 at 80–82 (Nazar Tr. at 23:7– 25:12). Nazar finally admitted that there were no documents responsive to RFP No. 10.

-         After confirming that Nazar never sent any written communications relating to the June 24, 2019, walkthrough, Yadegari again insisted on, and took, his “five-minute break” at 11:06 a.m., i.e., after being on record for only twenty-six minutes. See id., Ex. 9 at 84 (Nazar Tr. at 27:17–19)

-         Yadegari and Nazar did not return from their “five-minute break” until 11:42 a.m., i.e., thirty-six minutes after beginning the “five-minute break.” See Dean Decl., Ex. 9 at 84–85 (Nazar Tr. at 27:17–19, 28:7–16)

-         When he went back on record, Nazar immediately changed his testimony from saying there were no documents to saying there were “[p]lenty of documents.” See id., Ex. 9 at 85–88 (Nazar Tr. at 28:18–31:9). Then, Nazar changed his testimony from saying he did not search for any documents to saying he handed documents to his lawyer that were responsive to the RFPs. See id., Ex. 9 at 89 (Nazar Tr. at 32:5–13).

-         Plaintiff’s counsel questioned Nazar on these changes, and when reminded that he was speaking under penalty of perjury, Nazar changed his testimony (again) to say that he did not search for or provide any such documents. See id., Ex. 9 at 89–90 (Nazar Tr. at 32:15–33:24)

-         Naturally, Plaintiff’s counsel continued to question Nazar about his changing testimony and efforts to search for documents, but instead of allowing Nazar to answer these questions, Yadegari again decided to testify on his behalf and identify Yadegari’s purported search efforts. See id., Ex. 9 at 94–95 (Nazar Tr. at 37:5–38:6)

-         Then, Nazar’s wife, Kathleen Martinez whispered into Yadegari’s ear and instructed him to stop the deposition, which Yadegari tried to do. See id., Ex. 9 at 95–96 (Nazar Tr. at 38:7–39:10).

-         Plaintiff’s counsel continued with the deposition and again got Nazar to admit that there are no communications relating to the June 24, 2019, walkthrough.

-         After this admission, Martinez tapped Yadegari on the shoulder and asked him to step outside and talk to her. See id., Ex. 9 at 101 (Nazar Tr. at 44:2–19). Yadegari again asked for a “five-minute break.” See id. Yadegari and Martinez stepped outside to talk briefly while still on the record, then Yadegari and Martinez returned and immediately stopped the deposition because Nazar did not “have his earpiece.” See id., Ex. 9 at 101–103 (Nazar Tr. at 44:20–46:6)

-         Nazar never once stated that he could not understand or hear any of the questions or that he needed an earpiece. In fact, quite the opposite. Nazar confirmed at the beginning of the deposition that he could understand Plaintiff’s questions and that there was no reason he could not give his best testimony. See id., Ex. 9 at 66 (Nazar Tr. at 9:16–21). In fact, when asked if there was “any reason you can’t give your best testimony today,” Nazar responded “No.” See id., Ex. 9 at 67 (Nazar Tr. at 10:10–12).

(See Dean Decl.)

In opposition, Defendant fails to provide any adequate justification for this conduct.

As for the repeated scheduling delays and last-minute cancellations, Mr. Yadegari contends that he was unavailable for a period from September 26 through October 23 due to the observance of Jewish Holidays during that time frame.” (Opp., pg. 4: 4-5.) However, even accepting this explanation, Mr. Yadegari fails to offer any explanation as to why he waited nearly two months after receiving notice of the deposition, and with full awareness of when the Jewish Holidays fall, to cancel the deposition. Mr. Yadegari’s explanation also fails to explain why in October 2022 he was only able to offer deposition dates in February and March 2023. 

As for the conduct during the deposition, Mr. Yadegari offers no persuasive explanation this facially unreasonable behavior. Nazar never once stated that he could not understand or hear any of the questions or that he needed an earpiece or that he was missing an earpiece. Rather, Nazar confirmed at the beginning of the deposition that he could understand Plaintiff’s questions and that there was no reason he could not give his best testimony. Moreover, the timing of this issue, and the manner in which it was raised, strongly suggests that it was a strategic tactic to exit the interview.

The Court finds Mr. Yadegari’s conduct to be highly concerning. The transcript supports Plaintiff’s contentions that he was repeatedly attempting to coach Defendant in his answers, and would seek breaks when his client was giving testimony he wished to coach him out of.

The Court readily concludes it should compel Nazar to sit for a deposition in his personal capacity on October 19, 2023, and in his capacity as the corporate representative for LOTF on October 20. The Court also compels Nazar to produce all documents responsive to the RFPs prior to the depositions.

Moreover, the Court finds good cause to grant a protective order, with the exception of the appointment of a discovery referee. The appointment of such a referee is proper when there are “exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.” (Id. § 639(d)(2).) Here, while the Court finds Mr. Yadegari’s conduct to be improper, it does not rise to the level of exceptional, such that this relief is necessary at this time. However, the Court notes that if Mr. Yadegari obstructs the future depositions, the Court will likely appoint a referee and could order counsel to pay Defendant’s share of the referee fees as a sanction for misuse of the discovery process. (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8K-5, Id. 8:1805.1 (citing Andrews v. Superior Court (2000) 82 Cal. App. 4th 779, 783.)  

The Court also finds sanctions to be warranted, though the Court finds Plaintiff’s request for $28,970.00 to be excessive. While Plaintiff states this was the sum incurred in preparing this motion, Plaintiff did not explain how this figure was calculated or submit a declaration establishing this claim. The Court sanctions Defendant, jointly and severally with counsel, $5,250. ($350/hr x 15 hr.)

Based on the foregoing, Plaintiff’s motion to compel deposition is granted. Plaintiff’s protective order is granted, with the exception of the appointment of a discovery referee. Defendant is sanctioned, jointly and severally with counsel, $5,250.

It is so ordered.

Dated:  October    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.