Judge: Kristin S. Escalante , Case: 21STCV26454, Date: 2023-05-09 Tentative Ruling



DEPARTMENT 24 - LAW AND MOTION RULINGS
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Case Number: 21STCV26454    Hearing Date: May 9, 2023    Dept: 24

The Motion for Terminating, Issue and Evidentiary Sanctions against Defendants and Request for Monetary Sanctions for failure to comply with the January 31, 2023 Court Order regarding the Deposition of Shlomo Rechnitz; reservation no.: 512532521834 filed by Genevieve Thomas, by and through her Successor in Interest Joycelyn Thomas on 03/22/2023 is GRANTED in part and DENIED in part.

 

The court grants Plaintiff’s request for issue sanctions. The court orders that Plaintiff has proven, by clear and convincing evidence Defendants B-Spring Valley, LLC, Brius Management Co., and Shlomo Rechnitz engaged in a joint venture, part of a single enterprise, and/or are the alter egos of each other.

 

The court imposes monetary sanctions in the reduced amount of $1,000 on Defendants B-Spring Valley, LLC, Brius Management Co., and Shlomo Rechnitz and their attorneys of record Giovanniello Law Group, jointly and severally, payable to Arias Sanguinetti Wang & Torrijos upon notice of this order.

 

In all other respects the motion is denied without prejudice.

 

Plaintiff Genevieve Thomas (“Plaintiff”) moves for an order imposing terminating sanctions against Defendants B-Spring Valley LLC, Birus Management Co., and Shlomo Rechnitz (“Rechnitz”) (collectively “Defendants”). (Notice of Mtn., at p. 2.) Alternatively, Plaintiff seeks issue and/or evidentiary sanctions. Plaintiff also seeks monetary sanctions in the amount of $5,860.00. (Notice of Mtn., at pp. 2-3.)

 

By way of background, Plaintiff has been trying since June 2022 to take the deposition of Rechnitz. On September 22, 2022, the court denied Defendants’ motion for a protective order for Rechnitz. (Minute Order, Sept. 22, 2022.) Then on January 31, 2023, the court granted Plaintiff’s motion to compel the Rechnitz deposition. (Minute Order, Jan. 31, 2023.) Specifically, the court ordered the deposition to take place on 03/22/2023 at 10:00 am at the Law office of Arias Sanguinettie Wang & Torrijos LLP, located at 6701 W. Center Dr., Suite 1400, Los Angeles, CA 90045. (Minute Order, Jan. 31, 2023.) Rechnitz did not appear for the court ordered deposition. (Motion, Ex. 6 [“Certificate of Nonappearance”].) Plaintiff received a letter from Defendants later that day stating that Rechnitz was “medically unfit” to sit for deposition. (Motion, Ex. 7)

 

As the parties raise the issue of Rechnitz’s fitness again in this motion, the court briefly summarizes the prior information the parties provided the court with regarding Rechnitz’s fitness. As part of the briefing on the January 2023 motion to compel Defendants initially stated Rechnitz could not be deposed because he was out of the country. When Plaintiff submitted deposition testimony from Rechnitz attesting to his presence in California in December 2022, Defendants submitted supplement evidence. In the supplemental declaration, Defendants’ counsel stated that he had incorrect information regarding Rechnitz location. Additionally, he recently learned that on December 23, 2022, Rechnitz fell at his home, had a subsequent surgery, and was taking pain medications which inhibited his ability to give deposition testimony. Counsel attached the declaration from Jonathan Nissanoff, M.D. stating (i) he performed surgery on Rechnitz on December 23,2022, (ii) Rechnitz experienced bleeding complications, (iii) Rechnitz remained in the hospital until December 26, 2022, and (iv) he cannot be deposed for at least six weeks because of his surgery. Defendants requested the deposition be postponed until March 1, 2023. The court granted Plaintiff’s motion and ordered the deposition to take place on March 22, 2023—after the minimum period Defendants identified.

In the reply, Plaintiff requests a continuation of the hearing past April 20, 2023 because the parties have recently agreed for Rechnitz deposition to take place on April 20, 2023. The court permitted the continuance. (Minute Order, Apr. 19, 2023.) On April 24 and 28, respectively, the parties provided supplemental declarations. The declarations show that on April 20, 2023, Rechnitz appeared for approximately an hour of testimony before stating he could not continue to give testimony to the best of his ability. Plaintiff’s counsel’s lay opinion—that Rechnitz appeared lucid and capable of continuing—provides some value but is ultimately not dispositive of the issue. As Defense counsel correctly points out, Plaintiff’s counsel is not a medical professional capable of determining whether Rechnitz could continue. Nevertheless, regardless of whether the a portion deposition took place on April 20, 2023, the court finds sanctions appropriate.

Discussion

When a party “fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., § 2023.450.) “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort . . .” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192, disapproved of on other grounds in Presbyterian Camp &Conference Centers, Inc v. Superior Court (2021) 12 Cal.5th 493, 516, fn. 17.)

Defendants again raise in their opposition brief, that Rechnitz’s deposition is improper under the Civil Discovery Act. The court previously discussed and addressed these arguments its September 22, 2022, minute order denying Defendants motion for a protective order on the same grounds. The court declines to change its prior ruling. As discussed in the September minute order, Rechnitz has relevant information to Plaintiff’s theory of the case. A protective order was not, and still is not, justified under the apex doctrine. Defendants also attempt to argue again that Plaintiff may obtain less intrusive discovery. However, the court already considered and rejected these arguments as part of the January 2023 motion to compel. And after so deciding, the court ordered the deposition to take place on 03/22/2023. (Minute Order, Jan. 31, 2023.) As of the filing of the motion, Rechnitz has not sat for deposition. It remains to be seen whether he will sit for his scheduled deposition on April 20, 2023.  

As to Defendants’ continued dispute regarding the remote deposition, the court still has no evidence that would justify a departure from the general rule that Plaintiff’s counsel is entitled to be physically present at the deposition. The fact that Plaintiff may effectuate service on Rechnitz during the remote deposition is not relevant as Plaintiff has articulated valid reasons for taking Rechnitz’ deposition. As with the prior motions, Defendants have provided no authority or argument as to whether the law permits service at a deposition, or whether it would be effective. In the absence of any legal argument or authority as to whether a party may properly serve papers on a California resident during a deposition in California or during a remote deposition, the court refuses to deny the motion on that ground. The court also declines to prejudge whether the law allows any such service, or whether it would be effective. Notably, Rechnitz appeared to be evading service of process in this action before he was dismissed.

Here, terminating sanctions are too harsh a penalty. However, the court finds issues sanctions appropriate given Rechnitz’s failure to sit for a court ordered deposition and Defendants lack of evidence demonstrating why Rechnitz could not sit for deposition on March 22, 2023. (See Code Civ. Proc., § 2025.450 subd, (h).) Rechnitz’s agreement to sit for what amounted to an hour of testimony on the eve of the motion for terminating sanctions does not establish he has complied with the court’s order.

 

Defendants argue that sanctions are improper because Rechnitz has not acted willfully. (Opp., at p. 7:12-15 [citing Mileikowsky v. Tenant Healthsystem (2005) 128 Cal.App.4th 262].) Specifically, Defendants rely on the declaration from Dr. Nissanoff previously attached the motion to compel in January 2023. (Compendium of Ex., Ex 7.) This declaration does not support that Rechnitz is currently medically unfit. The declaration stated Rechnitz could sit for deposition approximately six weeks after his December 26, 2022, surgery, e.g., February 2023. (Compendium of Ex., Ex 7.) Defendants provide no information or evidence supporting that Rechnitz has ongoing medical issues, such as counsel’s, Dr. Nissanoff’s, or Rechnitz’s declaration.

The court orders that Plaintiff has proven, by clear and convincing evidence Defendants B-Spring Valley, LLC, Brius Management Co., and Shlomo Rechnitz engaged in a joint venture, part of a single enterprise, and/or is the alter ego of each other (as is alleged in the Complaint at ¶¶10-22, 27-31).

 

In lieu of, or in addition to an evidentiary sanction, the court may impose a monetary sanction. (Code Civ. Proc., § 2025.450.) Plaintiff request $5,860.00 in monetary sanctions and properly noticed the request for sanctions. (Code Civ. Proc., § 2023.040.) However, in Plaintiff’s supporting declaration, Plaintiff’s counsel states amount incurred without setting forth any facts supporting the requested amount such as hours worked and billing rate. (Code Civ. Proc., § 2023.040) As such, the court imposes reduced sanctions in the amount of $1,000.

 

Accordingly, the motion is granted in part.

 

Moving party is directed to give notice.