Judge Michael P. Linfield, Case Number: 22STCV17303, Date: 2023-07-11 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV17303, Date: 2023-07-11 Tentative Ruling

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Case Number: 22STCV17303 Hearing Date: July 11, 2023 Dept: 34

SUBJECT: Motion (1) to Compel the Depositions of Defendants[, and] (2) for Sanctions Against Defendants

Moving Party: Plaintiff United Broadway, LLC

Resp. Party: Defendants Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc.

The Motion is GRANTED. Defendants shall appear for their currently-scheduled deposition on July 24, 2023 at 9:30 a.m.

The Request for Sanctions is DENIED.

PRELIMINARY NOTE:

¿¿¿¿ ¿The discovery motions filed in this matter indicate a lack of civility between Counsel.¿

“The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.” (In re Mahoney¿(2021)¿65 Cal.App.5th 376.)

"We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive."¿¿(In re Marriage of Davenport¿(2011) 194 Cal.App.4th 1507, 1537.)

¿¿¿¿ ¿¿¿¿The Court expects all counsel to familiarize themselves with, and comply with, the¿Los Angeles Superior Court’s Local Rules, Appendix 3.A:¿¿“Guidelines for Civility in Litigation.”

BACKGROUND:

On May 25, 2022, Plaintiff United Broadway, LLC filed its Verified Complaint against Defendants TMV Enterprises LLC, Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc. on causes of action arising from Defendants’ tenancy with Plaintiff.

On July 12, 2022, Defendants Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc. filed their Verified Answer.

On August 11, 2022, by request of Plaintiff, the Clerk’s Office entered default on Defendant TMV Enterprises, LLC.

On September 19, 2022, Plaintiff amended its Verified Complaint to substitute Doe 1 with Michael & Tal Vincent Enterprises, LLC. This defendant is listed as a Nevada limited liability company.

On September 20, 2022, Plaintiff amended its Verified Complaint to substitute Doe 2 with Michael & Tal Vincent Enterprises, LLC. This defendant is listed as a California limited liability company.

On June 1, 2023, Plaintiff filed its Motion (1) to Compel the Depositions of Defendants[, and] (2) for Sanctions Against Defendants (“Motion”). Plaintiff concurrently filed: (1) Declaration of Maurice Wainer; and (2) Proof of Service.

On June 27, 2023, Defendants Michael Hajek, Tal Hajek, and Michael Vincent Academy, Inc. (“Defendants”) filed their Opposition.

On July 5, 2023, Plaintiff filed its Reply.

ANALYSIS:

I. Legal Standard

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court 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., § 2025.450, subd. (g).)

II. Discussion

A. The Parties’ Arguments

Plaintiff moves the Court to compel the depositions of Defendants. (Motion, p. 13:2–3.) Plaintiff argues that good cause exists for an order compelling the depositions. (Id. at p. 11:8.)

Defendants oppose the Motion, arguing: (1) that the Motion should be denied because Defendants were willing and able to attend the noticed deposition; and (2) Plaintiff’s Counsel failed to meet and confer in good faith. (Opposition, pp. 4:11–12, 6:7.)

Plaintiff reiterates its argument in its Reply.

B. Discussion

On August 3, 2022, Plaintiff served Defendants with a deposition notice for Defendant Michael Hajek. (Decl. Wainer, Exh. A.) However, that deposition did not proceed due to Defendants’ objection. Despite Counsels’ ongoing discussions, it appears no depositions have occurred. (Reply, p. 6:4–6.)

Counsel have sufficiently communicated with each other such that the Court finds that the meet and confer requirement has been met here. (Decl. Wainer, Exh. C.)

The evidence suggests that Defendants’ Counsel repeatedly cancelled and delayed the depositions. (Decl. Waiver, ¶¶ 3–25.) For example, this occurred as to the April 19, 2023 deposition, when despite giving dates well in advance of the deposition, Defendant’s Counsel cancelled the deposition days before it was scheduled to occur.

However, the evidence also suggests that, after Defendants had engaged in dilatory tactics, Plaintiff’s Counsel also engaged in cancel and delay tactics. (Opposition, Decl. Park, ¶¶ 2–4.) For example, Plaintiff’s Counsel repeatedly asked Defendants’ Counsel to sign a stipulation and then did not share the deposition link for the June 20, 2023 deposition when Defendants’ Counsel refused to sign the stipulation, even though Defendants repeatedly confirmed their availability for the deposition.

Eleven months of delay in taking Defendants’ depositions is unreasonable. However, given both Counsel’s conduct, sanctions are not warranted at this time.

III. Conclusion

The Motion is GRANTED. Defendants shall appear for their currently-scheduled deposition on July 24, 2023 at 9:30 a.m.

The Request for Sanctions is DENIED.