Judge Randolph M. Hammock, Case BC704819 2023-02-08 Tentative Ruling

Plaintiffs brought this derivative action for the benefit of nominal Defendant Ahavath Israel Congregation, Inc (“AIC”). Plaintiffs allege that Defendants have misused AIC’s assets, by among other things, granting am unfairly one-sided lease to Defendant J.E.T.S. Synagogue. Plaintiffs bring this action for (1) rescission of lease, (2) rescission of deed, (3) money had and received, (4) conversion, (5) breach of fiduciary duty, and (6) unjust enrichment.

Plaintiff’s Motion to Compel the Second Deposition of Defendant Jose Herrera is GRANTED. Defendant is to appear for a second deposition not to exceed 3 hours within the next 60-days, at a time and place to be agreed upon by the parties.

Plaintiff Yoseph Chazanow moves for an order compelling Defendant Jose Herrera “to provide at minimum three hours of additional deposition testimony.” (Mtn. 3: 3-5.)

Code of Civil Procedure section 2025.610(a) generally limits a party to sit for only a single deposition. However, “for good cause shown, the court may grant leave to take a subsequent deposition.” (§ 2025.610(b).)

Herrera first sat for deposition on May 17, 2022, and was “on the record for 3 hours and 42 minutes.” (Kaufman Decl. ¶¶ 5-6.) Plaintiff contends that Co-Defendant Michael Rosenberg was in the room with Herrera during the deposition and “there is evidence that he was signaling to Herrera to change his responses as he was testifying.” (Mtn. 4: 22-24; Kaufman Decl. ¶ 10.)

Moreover, on June 1, 2022, Herrera provided an Errata sheet. (Id. ¶ 12.) Plaintiff contends that Errata sheet “made substantive changes that drastically altered his deposition transcript.” (Mtn. 3: 3-5.) These changes “included responses to questions regarding his purported Jewish faith and heritage and his role as a director and officer of AIC, most notably whether or not he even had knowledge that he was a director and officer of AIC,” and in some cases “switched responses from a negative response to affirmative.” (Mtn. 3: 21-25.)

To illustrate, Herrera did not produce any documents at his deposition and stated that he had not searched for any. (Kaufman Decl. ¶ 9.) But in the Errata, Herrera states that he did search for documents. Defendant contends these changes make the prior deposition transcript “incomplete, confusing, and misleading,” especially as to matters “that are core issues in this case.” (Mtn. 3: 12-14.)

Plaintiff’s counsel states he had an agreement with Defendant’s former counsel that Herrera would sit for another deposition. (Kaufman Decl. ¶¶ 28-29.) However, former counsel moved to withdraw as counsel before the parties could schedule the second deposition. (Id.) Plaintiff noticed Defendant Herrera’s second deposition for January 18, 2023. Plaintiff contends Herrera’s new counsel, Sandra Gamboa, “unilaterally refused to allow the second deposition one week prior to its scheduled date.” (Mtn. 5: 9-10; Kaufman Decl. ¶¶ 31-35.) This motion followed.

In opposition, Defendant submits only a declaration from his counsel, Sandra Gamboa. Gamboa contends there is no evidence that Plaintiff’s counsel and Defendant’s former counsel agreed Herrera would sit for a deposition. (Gamboa Decl. ¶ 6.) She also disputes that the first deposition lasted less than four-hours, instead contending the deposition “took up most of the day.” (Id. ¶ 2.)

Counsel concedes that Herrera “did make many changes” to his deposition transcript, but attributes this to Herrera recovering from Covid-19 at the time of the first deposition and his “limited use of the English language.” (Id. ¶¶ 11, 12.) She submits that Herrera is “a minor defendant” who “serv[ed] a short period on the board and sign[ed] one document that we know about as a board member.” (Id. ¶ 13.) Thus, Counsel argues a second deposition is unnecessary. Instead, Counsel suggests that Plaintiff’s appropriate remedy is to “comment on [Herrera’s] changes at trial and suggest it affects his credibility.” (Id. ¶ 14.)

Of course, it cannot be disputed that Defendant had the unilateral right to review and modify his deposition transcript. (See CCP § 2025.520(b) [“the deponent may change the form or the substance of the answer to a question and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.”].) This court also agrees generally that Plaintiff should and will have the opportunity to comment on Herrera’s inconsistencies and revisions at trial. But while such a tactic may assist Plaintiff in undermining Defendant’s credibility, it does little to help Plaintiff prepare for trial if the answers are incomplete or confusing in the first place.

Herrera is more than a minor defendant in this dispute. It appears that Herrera’s testimony goes directly to the validity of the transfer of ownership of the Shul and Jewish Center—indeed, Herrera purportedly signed the deed underlying the claims here, in his capacity as Secretary and Vice President of Ahavath Israel Congregation, Inc. Defendant also fails to meaningfully dispute that Herrera’s errata substantially changed his testimony in a way that renders it incomplete or misleading.

The purpose of discovery “is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.” (Caryl Richards, Inc. v. Superior Ct. In & For Los Angeles Cnty. (1961) 188 Cal. App. 2d 300, 303 [emphasis in original].) Where, as here, a party engages in later acts inconsistent with the other party’s right to obtain evidence to prepare a case for trial, section § 2025.610(b)’s grant of a second deposition “for good cause shown” is directly applicable.

Accordingly, Plaintiff’s motion to Compel a Second Deposition is GRANTED. Defendant Herrera is to appear for a second deposition not to exceed 3 hours within the next 60-days, at a time and place to be agreed upon by the parties.

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.