21STCV32018 ANGELA SHALOME STREAT WILSON vs SHLOMO RECHNITZ, et al.

Plaintiff’s Motion to Compel the Deposition of Shlomo Rechnitz and for Actual Production of Documents; Request for Monetary Sanctions Against Defendant Shlomo Rechnitz and his Attorneys of Record Cowdrey Jenkins LLP

TENTATIVE RULING:  Plaintiff’s Motion to Compel the Deposition of Shlomo Rechnitz and for Actual Production of Documents; Request for Monetary Sanctions Against Defendant Shlomo Rechnitz and his Attorneys of Record Cowdrey Jenkins LLP is GRANTED.  Defendant Shlomo Rechnitz is ordered to appear for deposition on August 29, 2022 at 9:00 a.m. via electronic means and produce all responsive documents no later than August 25, 2022.  Pursuant to Code of Civil Procedure section 2025.450(g)(1), the Court imposes sanctions against Defendant Shlomo Rechnitz and his counsel of record, jointly and severally, in the amount of $3,060.00 payable to Plaintiff, via her counsel of record, within 60 days.

Background

On August 30, 2021, Plaintiff Angela Shalome Streat Wilson, by and through her Guardian ad Litem, Megan Frilot filed this action against Defendants Shlomo Rechnitz, The Healthcare Center of Down, LLC, Rechnitz Lakewood GP, Rockport Administrative Services, and Steven Stroll. The complaint alleged two causes of action: (1) Dependent Adult Abuse and (2) Negligent Hiring and Supervision. The complaint alleges that the Defendants, through various entities, aided and abetted wrongful acts and omissions at the direction of Shlomo Rechnitz, resulting in Plaintiff, a dependent adult, eloping from the facility and being allowed to roam the streets for two months. Defendants allegedly failed to staff enough individuals, hired unqualified employees, and provided sub-standard care to the patients, including Plaintiff.   

Motion to Compel Further Responses

On December 22, 2021, Plaintiff filed this motion to compel Defendant Shlomo Rechnitz to appear for a deposition and produce documents pursuant to a deposition notice.

Opposition

In opposition, Defendant contends he offered dates for his deposition on several occasions, two of which have not lapsed, his objections are warranted, and sanctions should not be imposed. 

Reply

In reply, Plaintiff argues Defendant will not appear absent a court order and failed to justify any of its objections.

Motion to Compel Deposition 

Standard 

Pursuant to Code of Civil Procedure section 2025.450(a), “[i]f, 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.”

The motion must be accompanied by a meet and confer declaration and “shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450(b).) “[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, [the motion must be accompanied] by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.”  (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.) The opposing party bears the burden to justify any objections. (See e.g. Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) 

Background of Discovery and Meet and Confer Prior to the Motion Filing

On December 7, 2021, Plaintiff served the notice of deposition upon Defendant Shlomo Rechnitz with the deposition set for December 23, 2021. (Garcia Decl. ¶ 7, Ex. 1.) The deposition notice included four requests for production related to “staffing, census, budget, financial performance, interaction with the Department of Public Health Services, interaction with the Centers for Medicare & Medicaid Services and/or regulatory compliance issues during the time frame of January 1, 2021 through June 17, 2021,” Rechnitz’s status as a general partner of Rechnitz Lakewood, GP and manager of Lakewood Park BM, LLC and/or Boardwalk Administrative Services, and documents reflecting his ownership interest in any of Rechnitz Lakewood, GP., The Healthcare Center of Downey, LLC., and Boardwalk West Financial Services, LLC. (Ibid.) Plaintiff included a letter with the notice indicating a willingness to reschedule the deposition to any date prior to January 31, 2022. (Ibid.)  

On December 16, 2021, Defendant served objections to the notice indicating they were not available at the date and time noticed, would provide alternative dates, and objecting to the first, third, and fourth document requests. (Id. Ex. 2.) Defendant did not provide an alternative date for the deposition. On December 19, 2021, Plaintiff sent a meet and confer letter noting Defendant did not separately seek a continuance of the deposition and addressing Defendant’s objections. (Id. Ex. 3.) On December 21, 2021, Plaintiff’s counsel’s office sent an email requesting to meet and confer. (Id. ¶ 9.) Defendant did not appear for his deposition on December 23, 2021. Plaintiff satisfied the meet and confer requirements and demonstrated Defendant failed to appear pursuant to a valid deposition notice. 

Defendant Must Appear for His Deposition and Produce Responsive Documents

In opposition, Defendant states “[a]s of the date of this opposition, defendant Rechnitz has offered to sit for his deposition on either August 29 or August 30, 2022.” (Opp. at 2:18-19.) Defendant provides a March 14, 2022 email indicating Defendant would be available for his deposition on three dates at the end of April. (Cowdrey Decl. Ex. A.) Plaintiff agreed to take the deposition via Zoom on April 27, 2022. (Id. Ex. B.) On April 25, 2022, Defendant’s counsel sent an email stating “[d]ue to an oversight on my part, I did not inform Mr. Rechnitz or Avi Wagner, Esq., that this deposition date had been selected,” Defendant was no longer available, and offering two dates in May. (Id. Ex. C.) 

On April 26, 2022, Plaintiff selected May 18, 2022 provided Defendant signed a stipulation and order regarding the deposition. (Id. Ex. D.) On May 6, 2022, Defendant indicated he was not agreeable to the stipulation and order, was no longer available for May 18, 2022, and offered June 7 and June 8 as alternative dates. (Id. Ex. E.) On May 9, 2022, Plaintiff accepted the June 7, 2022 date offered and requiring the deposition proceed in Plaintiff’s counsel’s officer or at another office. (Id. Ex. F.) On May 11, 2022, Defendant sought to change the deposition time to 10:30 a.m. (Id. Ex. G.) While Plaintiff had selected June 7, 2022 in the meet and confer process, Plaintiff served the deposition notice on May 27, 2022 for June 8, 2022. (Id. Ex. H.) 

On June 2, 2022, Defendant sent a letter indicating June 8, 2022 is not convenient, offering June 23 and 24 as alternative dates, and stating the deposition should proceed via Zoom due to rising COVID-19 counts. (Id. Ex. I.) On June 3, 2022, Plaintiff noted Defendant has never been concerned with COVID-19 exposure, frequently meeting with others, including Plaintiff’s counsel, indoors without masks, and had recently recovered from COVID-19. (Id. Ex. J.) On July 28, 2022, Defendant offered August 29, 2022 and August 30, 2022 as alternative dates. (Id. Ex. K.) 

The evidence demonstrates Defendant’s persistent refusal to sit for this duly noticed deposition and an order compelling his deposition is warranted. 

Plaintiff’s motion and separate statement demonstrate good cause for the documents sought as they specifically relate to allegations in the operative complaint. In opposition, Defendant summarily states “[w]ith regard to the requests for production of documents, the court should sustain defendant’s objections.” (Opp. at 4:9-10.) Defendant has therefore not met its burden to justify its objections and must produce all responsive documents. As argued by Plaintiff, Defendant’s objections lack merit. 

Plaintiff’s motion is GRANTED. 

In reply, “Plaintiff respectfully requests for the Court to Order Defendant Shlomo Rechnitz to appear for deposition on August 29, 2022 via Zoom at 9:00 a.m. and produce all documents Mr. Rechnitz intends to produce at deposition by no later than noon on August 26, 2022, the business day prior to the deposition via DropBox.” (Reply at 2:19-22.) The Court finds this request generally reasonable. However, the Court shall not mandate the use of specific products nor impose a noon deadline. 

Defendant Shlomo Rechnitz is ordered to appear for deposition on August 29, 2022 at 9:00 a.m. via electronic means and produce all responsive documents no later than August 25, 2022.  

Sanctions are Warranted 

Pursuant to Code of Civil Procedure section 2025.450(g)(1), “[i]f 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.”

Plaintiff seeks sanctions in the amount of $3,750.00 against Defendant and its counsel of record consisting of two hours of paralegal time at a rate of $150.00 per hour, one hour of attorney time on the motion and two hours for the reply and hearing at a rate of $900.00 per hour, “at least $750.00 in court reporter fees  at the hearing” and $60.00 for the filing fee. (Garcia Decl. ¶ 12.) 

The Court finds sanctions are warranted. In opposition, Defendant’s counsel states he did not “direct the witness not to appear at his deposition.” (Cowdrey Decl. ¶ 2.) However, Defendant’s counsel asserted meritless objections that it did not attempt to justify in the opposition. Sanctions are warranted against Defendant and his counsel as neither acted in good faith or with substantial justification. 

However, the Court does not include anticipated Court Reporter fees as a discovery sanction. Accordingly, the Court imposes sanctions against Defendant Shlomo Rechnitz and his counsel of record, jointly and severally, in the amount of $3,060.00, consisting of two hours of paralegal time at a rate of $150.00 per hour, three hours of attorney time at a rate of $900.00 per hour, and the $60.00 filing fee.