Judge Randolph M. Hammock, Case 21STCV23995 2023-01-27 Tentative Ruling

Plaintiff Pablo Vasquez brought this action against Defendants York Healthcare & Wellness Centre, LP; G4 Wellness GP, LLC; and Shlomo Rechnitz. Plaintiff was a resident of a skilled nursing facility owned and/or operated by Defendants. Plaintiff alleged that Defendants failed to use reasonable care, resulting in a severe unstageable pressure sore. Plaintiff alleged causes of action for (1) elder abuse and (2) negligent hiring and supervision. Plaintiff is now deceased; Belen Ramirez has been appointed Plaintiff’s Successor in Interest.

Plaintiff’s Motion to Compel the Deposition of Shlomo Rechnitz is GRANTED.

An award of monetary sanctions is issued in favor of the Plaintiff, and against Defendant Shlomo Rechnitz and his attorney, Giovanniello Law Group, both jointly and severally, in the amount of $1,835.00, to be paid within 60 days.

(a) 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.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

On June 14, 2022, Plaintiff served a notice for the deposition of Defendant Shlomo Rechnitz. Defendant did not appear. Instead, he filed a motion for a protective order to preclude his deposition. On September 21, 2022, this court denied Defendants’ motion for a protective order. In doing so, this court permitted reasonable accommodations, including the right to elect that the court reporter appear remotely, and that the deposition occur at a reasonable place of Defendant’s choosing. (See 09/21/2022 Ruling.)

Thereafter, Plaintiff contends that it made attempts to schedule Defendant’s deposition by letter on September 21, 2022, by phone call around October 10, 2022, and by another letter on November 2, 2022. Plaintiff says these attempts have been ignored and Defendant has “gone silent.” (Mtn. 4: 7.)

In opposition, Defendant contends that on September 30, 2022, he “travelled to Israel and remains there to this day.” (Opp. 1: 15-16.) Thus, an in-person deposition “became nigh impossible to schedule.” (Id.) Defendant’s counsel contends they “proactively reached out to Plaintiff’s counsel requesting an agreement to conduct a remote deposition which could then occur within a shorter window than an in-person deposition would require.” (Opp. 1: 17-20.) As was argued in his motion for protective order, Defendant still “believe[s] less intrusive means of discovery must be accomplished first,” and that “Mr. Rechnitz does not have knowledge of Plaintiff’s case or any day-to-day operations of York Healthcare.” (Opp. 1: 24-27.) Defendant contends Plaintiff’s only motivation for deposing Defendant Rechnitz is to serve him with process. Indeed, the parties had apparently attempted to come to an agreement whereby Defendant’s deposition could occur remotely if he agreed to accept service. Be that as it may, it appears the parties agree Defendant Rechnitz was personally served in this case on September 30, 2022, while appearing in Plaintiff’s counsel’s office for a deposition in another matter. (See Proof of Service, filed 09/30/2022.)

Interesting, the September 30th day of service is the same day Defendant purportedly left for Israel. Plaintiff presents further evidence that Defendant Rechnitz stated in a December 15, 2022, deposition in a separate matter that he was conducting the deposition from his home in Los Angeles. (See Reply Exh. 2, at 6:7-7:2.) Rechnitz is represented by the same law firm in this case and that one. Thus, Plaintiff argues the idea that Rechnitz is in Israel is false, and Defense counsel knows it.

In a supplemental declaration, [FN 1] Defendant’s Counsel backtracks on the assertion that Rechnitz is in Israel. Counsel Mark Figaro says he “based this representation on the facts available to [him] at the time [he] drafted [his] declaration after having conferred with numerous individuals within the firm Giovanniello Law Group and correspondence with Mr. Rechnitz’s personal counsel.” (Figaro Supp. Decl. ¶ 3.) He continues that “at the time of drafting the original declaration on file, it was unknown” to him that another attorney at Giovanniello Law Group “defended Mr. Rechnitz during a remote deposition on December 15, 2022, in a separate matter.” (Id.) Counsel Figaro does not dispute the veracity of Rechnitz’s statement “that he was then currently at his residence” in Los Angeles. (Id.) Thus, counsel submits his “cited representation was unknowingly inaccurate.” (Id.)

Be that as it may, Counsel Figaro now attests that “Mr. Rechnitz suffered a fall at his residence on December 23, 2022,” leading to “the diagnosis of a displaced fracture in Mr. Rechnitz’s proximal humerus.” (Id. ¶ 4.) He also “developed significant bleeding…and continues to have anemia, fatigue, and pain which requires pain medications.” (Id.) “The medications cause confusion, forgetfulness, sleepiness, slurred speech, and diminished memory with compounding complications caused by his anemia.” (Id.) Per the advice of Jonathon Nissanoff, M.D., a board certified licensed orthopedic surgeon, “the preceding medical complications and medications prevent Mr. Rechnitz from maintaining the requisite mental capacity to give competent testimony until at least March 1, 2023.” (Id.)

Here, Defendant has failed to appear for his noticed deposition, and has failed to agree on a reasonable date even with the accommodations previously granted by this court. On the other hand, Plaintiff has demonstrated again he is entitled to depose Defendant Rechnitz. Although this court is sympathetic to any legitimate health issues Rechnitz is experiencing, using those conditions as yet another means to avoid the deposition is too little too late.

Code of Civil Procedure section 2025.450 (g)(1), provides that, “[i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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 sanction acted with substantial justification or that other circumstances make the imposition of sanction unjust.” Thus, the award of monetary sanctions in connection with the motion to compel deposition, is mandatory upon the granting of same, absent two exceptions, to wit, (1) “substantial justification” by the opposing party; and/or (2) the imposition of sanctions would be “unjust” under the totality of the circumstances. CCP § 2025.450 (g)(1).

Here, there are no facts which would make the imposition of sanction unjust. Likewise, this court cannot find that Defendant acted with substantial justification. Rather, Defendant and his counsel willingly and knowingly avoided Defendant Rechnitz’s deposition—even after this court denied their attempts to do so once before. Defendant and his counsel then represented to Plaintiff and this court that Rechnitz could not be deposed because he was out of the country, a representation which was revealed to be completely false.

This Court agrees with the Plaintiff that an award against both persons are justified based upon the record before this Court. The monetary sanctions to be award under CCP § 2025.450 (g)(1) — vis-à-vis CCP § 2023.030 (a) — is not limited to the mere filing and argument of the motion. Instead, it is expressly to the “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” CCP § 2023.030 (a) (Emphasis added.) Hence, this would include all of the reasonable efforts made by the Plaintiff’s counsel made in an effort to get the Defendant (and his attorney) to agree to appear for this deposition.

Plaintiff seeks sanctions in the total amount of $1,835.00. This reflects “one hour of paralegal time” to prepare “a draft of this motion, separate statement and supporting declarations” at a rate $150.00 per hour. (Partain Decl. ¶ 8.) It also includes “one hour preparing and finalizing these papers,” and another one and a half hours considering the opposition, preparing a reply and attending the hearing of this motion” at the attorney’s rate of $650.00 per hour. This also includes the $60.00 filing fee.

This Court agrees that a reasonable hourly rate for Plaintiff’s counsel is $650 per hour, as requested. By utilizing a lodestar methodology, this Court also finds that the time quoted was reasonably incurred by the Plaintiff as a result of Defendant Rechnitz’s and his attorney’s refusal to attend the deposition at issue. Additionally, the $60.00 filing fee was actually and reasonably incurred.

Judge of the Superior Court

FN 1 - Although courts generally will not consider supplemental filings without leave, the facts here warrant it. First, Plaintiff presented new evidence in reply, and thus, Defendant must be given an opportunity to respond. Second, given the allegations that an attorney made knowingly false statements to this court, the attorney should be given an opportunity to explain those statements.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.