Judge: Ronald F. Frank, Case: YC072873, Date: 2022-09-12 Tentative Ruling

Case Number: YC072873    Hearing Date: September 12, 2022    Dept: 8

Tentative re Contempt motions as to Plaintiffs parents re Russian Translator expenses

Mezheritsky v. Klein and Kovich, Case No. YC 072873

                On the two contempt motions filed on 8/16/22, as to which there is no written opposition, the tentative is to DENY.

Summary Analysis:

The Court does not see that plaintiff’s parents willfully disobeyed a court order here.  The witness’ counsel advised defense counsel in advance that he would not be providing an interpreter.  Accordingly, the witness’ counsel appears to have deemed that an interpreter was not necessary.  Or perhaps the witness’ counsel continued the shell game apparently being played by the parents in delaying or evading their depositions.  Instead, it was defense counsel who deemed it necessary to have a Russian interpreter at the depos.  The 6/24/20 Order gives the deponents the option of having an interpreter attend the depositions at their own expense.  The Order does not state that the deponents are responsible for paying an interpreter that defendants elected to hire.  The tentative is without prejudice to defendants claiming the interpreter expenses as a taxable cost if defendants prevail at trial or by dispositive motion. 

Detailed Analysis:

Defendants claim Plaintiffs’ parents Vilory “Bill” Mezheritsky and Tatiana Mezheritsky violated a Stipulation and Order signed by Judge Hill on 6/24/20 related to the depositions of Plaintiff’s parents.  The Stipulation is signed by Mr. Girardi, but the signature block states that he was counsel for Anna Mezheritsky.  No counsel for Tatiana or Bill Mezheritsky is specified in the Stip.  The Stip and Order states that the parties (i.e., plaintiff and defendants) agree that each of Bill and Tatiana “may retain, at [their] expense, a certified Russian interpreter.”  (Page 69-70 of 445 in Motion for OSC.)  Nothing in the Order states that there can only be a single interpreter and that the single interpreter must be paid for by the deponent.  In fact, in the 7/13/19 Objection to Second Amended Notice of taking his deposition, counsel for Mr. M asserts that he reserves the right to have a 2^nd translator present at the deposition to check the accuracy of the defendants’ selected interpreter.  (Page 127 or 445 in the Motion for OSC re Contempt.)  Ms. Redd signed the objections as counsel for Mr. M.  In the ensuing recorded meet-and-confer, Ms. Herrera asserts her contention that Mr. M does not need an interpreter and is seeking one to harass the defense and cause them to spend more money.  Ms. Redd disputed such motives and stated in the meet-and-confer that he needed a interpreter and that he can bring his own translator “if you don’t want to pay for one.”  In fact, she said that Vilory was “very adamant” about needing an interpreter.  While Ms. Herrera listed a series of business and litigation matters as to which both of Plaintiff’s parents did not seek or have Russian interpreters and sought a waiver of the requested requirement of an interpreter, no such waiver was given.  Ms. Redd did provide defense counsel with a signed document indicating that the parents agreed in the first quarter of 2019 for Ms. Redd to represent them in their depositions in this case.  (page 110 of 445 in Motion for OSC.) 

It appears to the Court that Bill and Tatiana are non-party witnesses who did not violate the order that they pay for an interpreter if they decided to retain one for their depos, because they decided not to retain one.  It was defense counsel who decided to hire an interpreter for understandable tactical reasons.  Ms. Herrera hedged her bet that the parents might exhibit gamesmanship at their depos and claim they did not sufficiently understand English so they required an interpreter.  Ms. Redd had previously indicated her intent that defense counsel would bring their own interpreter, and that the parents might decide to bring a 2^nd interpreter, in which case the parents would pay for the 2^nd interpreter.  Given the cat-and-mouse game she had been subjected to for 3 years seeking the parent depos, Ms. Herrera prudently purchased a form of insurance against such gamesmanship by hiring her own interpreter, and to avoid the potential assertion by plaintiff at trial that her parents might not have understood key questions in deposition because English is their second language.  If a party intends to call either of plaintiff’s parents as a trial witness, that party will bear the responsibility for having a Russian interpreter present for that trial testimony or for having a stipulation signed by the parent or her/his counsel that an interpreter at trial is waived. 

The notices of depo and exchanges of communications subsequent to the 6/24/20 Order from Judge Hill use the language that “per stipulation,” Bill or Tatiana will be responsible for the fees and costs of an interpreter “if one is deemed necessary.”  Nowhere do the notices or correspondence indicate who will be doing the deeming.  While defendant asserts that in context the parties intended that the witness pay for an interpreter regardless of which party deemed it necessary to retain one, that is not what it appears Judge Hill ordered.  In this Court’s view, the OSC re contempt is predicated on the Order and its language as a party cannot be held in contempt for violating what counsel believes was intended by counsel’s deposition notice.