Judge: Robert B. Broadbelt, Case: 19STCV00634, Date: 2023-02-16 Tentative Ruling

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Case Number: 19STCV00634    Hearing Date: February 16, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Michael Dekhtyar    

RESPONDING PARTIES:    Defendants Michael Chernyavsky and Zinaida Pishik

Motion for Evidence and Issue Sanctions

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Michael Dekhtyar (“Plaintiff”) moves the court for an order imposing issue and evidence sanctions against defendants Michael Chernyavsky (“Chernyavsky”) and Zinaida Pishik (“Pishik”) (collectively, “Defendants”) pursuant to Code of Civil Procedure sections 2025.480, subdivision (k), and 2023.030.  Plaintiff moves for this relief on the ground that Defendants have each disobeyed a court order that they attend and testify at second sessions of their depositions.

Plaintiff requests the court impose (1) evidence sanctions against Defendants prohibiting the submission of any written evidence or testimony at trial (or in connection with any subsequent summary judgment motion) regarding Defendants’ status as shareholders, officers, or directors for Verax Restaurant Group from January 2007 through September 2010, and (2) issue sanctions (i) designating as established the fact that Plaintiff was the only officer and director of Verax Restaurant Group during the time in which the subject promissory notes were executed, such that Plaintiff had the authority to execute the notes on behalf of Verax Restaurant Group, and (ii) precluding Defendants from presenting any contrary evidence relating to Plaintiff’s role as the sole officer and director during the relevant time periods in which the subject promissory notes were executed.

On October 6, 2021, the court granted in part Plaintiff’s motion to compel Pishik’s further deposition and ordered Pishik to attend and testify at a second session of her deposition to be taken by Plaintiff on a date within 30 days of the date of the order, to be agreed upon by the parties.  (Oct. 6, 2021 Order, p. 3:16-21.)  On May 9, 2022, the court granted Plaintiff’s motion to compel Chernyavsky’s further deposition and ordered Chernyavsky to attend and testify at a second session of his deposition to be taken by Plaintiff on a date within 30 days of the date of the order, to be agreed upon by the parties.  (May 9, 2022 Order, p. 3:1-3.)  The parties do not appear to dispute that Defendants have not attended and testified at a second deposition, as ordered by the court on October 6, 2021, and May 9, 2022 as to Pishik and Chernyavsky, respectively.  The parties instead dispute whether Defendants’ noncompliance was willful or in bad faith.

After considering the evidence and arguments presented by Plaintiff and Defendants, the court exercises its discretion to deny Plaintiff’s request to impose issue and evidence sanctions against Defendants. 

The court finds that the imposition of issue and evidence sanctions, based on the circumstances presented by this motion, would not be appropriate to the dereliction, or to remedy the prejudice caused by Defendants’ failure to attend and testify at deposition.  (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 701 [“Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery”].)  However, the court finds that ordering Defendants to appear for and testify at a deposition to be taken by Plaintiff, as set forth below, is an appropriate remedy to address the harm suffered by Plaintiff due to his inability to depose Defendants.

ORDER

The court denies plaintiff Michael Dekhtyar’s motion for evidence and issue sanctions.

The court orders defendant Zinaida Pishik to attend and testify at a second session of her deposition, to be taken by plaintiff Michael Dekhtyar, on _____________, 2023, at ________ a.m., at _______________________________________________________. 

The court orders defendant Michael Chernyavsky to attend and testify at a second session of his deposition, to be taken by plaintiff Michael Dekhtyar, on _____________, 2023, at ________ a.m., at _______________________________________________________. 

At the request of either plaintiff Michael Dekhtyar or the deponent, the deposition shall be taken remotely on a videoconferencing platform to be selected by plaintiff Michael Dekhtyar.

The court orders plaintiff Michael Dekhtyar to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 16, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court