Judge Theresa M. Traber, Case 19STCV26512 2022-07-26 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2022-07-26 Tentative Ruling

Case Number: 19STCV26512 Hearing Date: July 26, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 26, 2022 TRIAL DATE: January 9, 2023

CASE: Frontline Medical Associates, Inc. v. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. et al.

CASE NO.: 19STCV26512

MOTION TO PRECLUDE REMOTE TRIAL TESTIMONY OF PLAINTIFF’S OWNER MUNIR UWAYDAH

MOVING PARTY: Defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

RESPONDING PARTY(S): Plaintiff Frontline Medical Associates, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

In the First Amended Complaint, filed on December 16, 2021, Plaintiff alleges that the lawyer Defendants made misrepresentations to induce Plaintiff to pay them $600,000 to provide services to another of their clients, Paul Turley.

Defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. moves to preclude the remote trial testimony of Plaintiff’s owner, Munir Uwaydah.

TENTATIVE RULING:

Defendant’s Motion to Preclude Remote Testimony of Munir Uwaydah is GRANTED.

DISCUSSION:

Defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. moves to preclude the trial testimony of Plaintiff’s owner, Munir Uwaydah.

Untimely Opposition

Defendant objects to Plaintiff’s opposition to the motion on the ground that it is untimely.

Code of Civil Procedure section 1005(b) requires that any opposition to a motion be served and filed nine court days before the date the motion is scheduled to be heard, with any subsequent reply to be served and filed five court days before the hearing. Here, the Motion was served and filed on July 1, 2022 for a July 26, 2022 hearing. Plaintiff’s opposition was served and filed electronically on July 18, 2022, only six court days before the hearing and one day before any reply from Defendant was due. Plaintiff’s motion is untimely.

The Court is willing to extend considerable latitude toward parties who fail to comply with procedural requirements, especially where the risk of prejudice to the other party is minimal, out of a preference to decide issues on their merits, rather than on procedural grounds. However, the Court’s patience for procedural defects is not without limits. Here, Plaintiff and its counsel have, time and again, failed to comply with the Code of Civil Procedure, with the California Rules of Court, and with the orders of this Court. (See, e.g., May 27, 2022 Minute Order on Motion for Terminating, Evidentiary, or Issue Sanctions.) This Court is unwilling to continue to indulge Plaintiff’s refusal to comply with procedural requirements. The Court therefore refuses to consider Plaintiff’s untimely opposition to this motion.

Analysis

Defendant argues that remote testimony of Plaintiff’s former owner, Munir Uwaydah, should be precluded on two separate grounds: first, that Code of Civil Procedure section 367.75 requires in-person testimony under the circumstances here, and second, that Uwaydah may not avail himself of a remote appearance to perpetuate his evasion of the criminal justice system.

1. In-Person Requirement under Section 367.75

Code of Civil Procedure section 367.75(b)(3) provides that a witness should be required to appear in person where “an in person appearance would materially assist in the determination of the . . . proceeding.) (Code Civ. Proc. § 367.75(b)(3).) In-person hearings are strongly preferred to the use of deposition testimony to permit the jury to observe witness behavior and assess the demeanor of the witness, especially in cases turning on the credibility of one witness or another. (See, e.g. Knight v. South Orange Community College District (2021) 60 Cal.App.5th 854, 866 [discussing the importance of allowing the adjudicator or trier of fact to observe witness demeanor in Title IX claims]. However, there is no case law addressing whether there is a preference for in-person or remote testimony of a witness.

Defendant argues that, here, it is essential that Uwaydah’s trial testimony be offered in person. Defendant states that Plaintiff’s theory of liability, as presented in its opposition to Defendant’s motion for summary judgment, is that Defendant did not disclose conflicts of interest that could arise out of its joint representation of Frontline, Uwaydah, and Turley, and that the key evidence is Uwaydah’s testimony to that effect. (Declaration of Hillary Potashner ISO Mot. ¶¶ 23-25.) Defendant contends that there are no documents evidencing the payments at issue showing payment directly from Frontline to Defendant, making Uwaydah’s testimony essential, and therefore the outcome of the case will be determined by the jury’s assessment of Uwaydah’s credibility. (See, e.g., June 30, 2018 Declaration of Benjamin Gluck Exhs. 2-3.) Defendant asserts that, if Uwaydah is permitted to testify remotely, the jury will be unable to observe any “tells,” such as shaking hands or sweat on his brow, that might indicate a lack of credibility.

The Court is persuaded by Defendant’s argument. Although the indicators of the witness’s demeanor that would be masked through the use of remote testimony are, perhaps, not as significant as the witness’s facial expression, words, tone of voice, and diction, they are nonetheless useful to the jury in assessing a witness’s credibility. Furthermore, as the case has been presented to the Court, the determination of liability will rest on the credibility of Uwaydah, as a former principal of Plaintiff and the key witness, since there is little documentary evidence to assist the jury. The jury must therefore have access to every permissible means and piece of information to assess Uwaydah’s credibility, including those “tells” that might otherwise be hidden by remote testimony. The Court therefore finds that in-person testimony by Munir Uwaydah would materially assist in the determination of the trial. If Plaintiff wishes to offer Uwaydah’s live testimony before the jury, he must appear in person to deliver it.

2. Evasion of Justice

Defendant’s alternative basis for this motion is that Uwaydah should not be permitted to testify remotely to facilitate his evasion of the criminal justice system.

Defendant contends that Uwaydah fled the United States for Lebanon in 2010 to avoid criminal prosecution in connection with a healthcare fraud scheme and the murder of Juliana Redding to cover up that fraud scheme. Uwaydah has been indicted by a Los Angeles County grand jury for allegations of healthcare fraud. (Potashner Decl. Exh. 6.) Indeed, the entire basis for this case is a dispute regarding Defendant’s representation of one of Uwaydah’s associates, Paul Turley, in that criminal proceeding.

Defendant argues that equity demands that Uwaydah be precluded from testifying remotely, as that would facilitate his evasion of the criminal justice system. Defendant relies on the fugitive disentitlement doctrine, which bars parties from availing themselves of a court system which they are evading. (In re Scott’s Estate (1957) 150 Cal.App.2d 590, 594 [It is contrary to the principles of justice to permit one who has flaunted the orders of the courts to seek judicial assistance”].) The purposes of this limitation are “(1) assuring the enforceability of any decision that may be rendered on or following the appeal; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the other side caused by the [criminal] defendant’s escape.” (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897-98.)

Here, although Uwaydah is a witness, rather than a party to this case, he has remained in Lebanon since 2010 to avoid potential criminal prosecution. Plaintiff has extensively relied on Uwaydah’s residency in Lebanon as both shield and sword in these proceedings, sometimes successfully, as when Defendant’s motion to compel Uwaydah’s deposition failed because the Court lacked jurisdiction to compel Uwaydah, as a resident of Lebanon, to appear in California. (January 9 2020 Minute Order), and sometimes not, as when sanctions were awarded against Plaintiff for repeated misuse of the discovery process. (May 27, 2022 Minute Order.) Further, although the Court has refused to consider Plaintiff’s untimely opposition, the Court notes that Plaintiff’s opposition states that Uwaydah will not come to the United States for testimony in this matter because he refuses to subject himself to potential criminal proceedings. (Opposition p. 6:12-17.) This is, on its face, an invalid excuse for failure to appear in person to give witness testimony. Where, as here, in-person testimony would materially assist the jury, as discussed above, owing to the nature of this dispute and the available evidence, a desire to avoid criminal prosecution is not a legitimate excuse to deny the jury materially useful evidence.

CONCLUSION:

Accordingly, Defendant’s Motion to Preclude Remote Testimony of Munir Uwaydah is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 26, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.