Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2022-12-15 Tentative Ruling

Case Number: 19STCV26512    Hearing Date: December 15, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 15, 2022                            TRIAL DATE: January 10, 2023

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

CASE NO.:                 19STCV26512

(1). MOTION FOR PROTECTIVE ORDER TO PRECLUDE DEPOSITION TESTIMONY

(2). MOTION TO COMPEL CONSENT FOR DOCUMENT AUTHENTICATION

MOVING PARTY:               (1) (2) Defendants Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C. and Benjamin Gluck; (2)

RESPONDING PARTY(S): (1)(2) Plaintiff Frontline Medical Associates, Inc

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This case was commenced on July 30, 2019.  In the operative First Amended Complaint, filed on December 16, 2021, Plaintiff alleges that the lawyer Defendants made misrepresentations to induce it to pay them $600,000 to provide services to another of their clients, Paul Turley.

            Defendants move for a protective order to preclude the deposition of Munir Uwaydah, and to compel Plaintiff’s consent to authenticate certain documents.

TENTATIVE RULING:

Defendants’ Motion for a Protective Order to Preclude the Deposition of Munir Uwaydah is GRANTED.

            Defendants’ Motion to Compel Consent to Authentication is GRANTED.

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DISCUSSION:

Motion for Protective Order to Preclude Deposition Testimony

            Defendants move to preclude Plaintiff’s taking of the deposition testimony of Munir Uwaydah.

Legal Standard

Code of Civil Procedure section 2025.420 provides, in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(Code Civ. Proc. § 2025.420(a); (b)(1).)

Meet and Confer

            Before filing a motion for a protective order, Defendants are required to file a declaration stating its efforts to meet and confer with the opposing party to resolve this dispute, showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc. § 2016.040.)

            The Declaration of Hilary Potashner states that the parties met and conferred telephonically regarding this issue but were not able to reach a resolution of this dispute. (Declaration of Hilary Potashner ISO Mot. ¶ 2.) The Court therefore finds that Defendants have complied with the statutory meet and confer obligations.

Analysis

Defendants move for a protective order to preclude Plaintiff from taking the deposition of Munir Uwaydah.

Defendant contends that the purpose of the deposition is to escape the consequences of the Court’s July 26, 2022 order precluding Munir Uwaydah from giving remote testimony at trial. (See July 26, 2022 Minute Order.) Instead, Plaintiff seeks to depose Uwaydah and introduce his deposition at trial in place of his remote testimony. Defendants also contend that the deposition would be inadmissible as hearsay because Uwaydah’s claimed basis for unavailability, namely his refusal to return to the United States because of a pending criminal prosecution against him, renders his absence the product of wrongdoing. (See Evid. Code §§ 240(b), 1291.)

In opposition, Plaintiff claims that the deposition is authorized and permissible under Code of Civil Procedure section 2025.620(c). This provision states:

At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following provisions:

(c) Any party may use for any purpose the deposition of any person or organization, including that of any party to the action, if the court finds any of the following:

(1) The deponent resides more than 150 miles from the place of the trial or other hearing.

(Code Civ. Proc. § 2025.620(c)(1).) As Plaintiff correctly observes, unlike section 367.75, which was the basis for the Court’s July 26 ruling, this provision does not grant the Court discretion in whether to permit the use of a deposition under this statute, except as otherwise allowed under the rules of evidence. Neither party disputes that Munir Uwaydah resides more than 150 miles from the place of trial, as he currently resides in Lebanon.

            In reply, Defendants raise four arguments. First, Defendants assert that the fugitive disentitlement doctrine bars Plaintiff from presenting its case in its entirety, as Defendants contend that Plaintiff is an alter ego of Uwaydah. Further, Defendants argue that permitting the use of Uwaydah’s testimony in this manner would violate due process because there would be no safeguard from perjury in his statements, as he is a fugitive from justice and thus beyond the reach of any penalties for perjury. This issue is also the subject of a motion in limine, and, if the Court were to find in favor of Defendants’ argument, Defendants would be entitled to immediate dismissal of this action, thus rendering this motion moot. The Court therefore declines to address this issue in the context of a motion for a protective order.

            Defendants next argue that Code of Civil Procedure section 367.75 should control over section 2025.620, because the former was enacted more recently, and permits the Court to order an in-person appearance when it would materially assist in the determination of the proceeding. This argument is not well-taken. Section 367.75 concerns the use of live testimony over remote testimony, as addressed in the Court’s July 26, 2022 order. This statute does not address the use of deposition testimony because the witnesses reside far from the jurisdiction in which the case is brought.

            Defendants’ final argument is that this evidence should be precluded under Evidence Code section 352. This section provides that the court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code § 352.) As the Court stated in its July 26, 2022 ruling:

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.

(July 26, 2022 Minute Order.) Here, the evidence at issue is not remote testimony, but a deposition that is to be offered as testimony. Thus, the jury would be deprived not only of indicators of the witness’s demeanor such as shaking hands or sweat on his brow, but of basic indicators such as facial expression, tone of voice, and diction. As the Court has previously stated, and the parties agree, the determination of liability rests on Uwaydah’s credibility. Thus, in the Court’s view, there is a substantial danger that the presentation of Uwaydah’s deposition in lieu of live testimony will mislead the jury with respect to his credibility. Further, since Uwaydah’s credibility is the central issue in this case, the probative value of his words alone is substantially outweighed by the danger of misleading the jury, as the jury will be deprived of most of the means and information to make that assessment. As the Court previously stated, if Plaintiff wishes to offer Uwaydah’s testimony before the jury, he must appear in person to deliver it. 

This conclusion is reinforced by the fact that Uwaydah’s residence in Lebanon puts him beyond the power of any American court to enforce any guarantee he may give that his testimony would be provided under penalty of perjury.  Without an enforceable guarantee, Uwaydah’s deposition testimony is tantamount to out-of-court hearsay and, thus, should be regarded as having little to no probative value. Accordingly, pursuant to its discretion under Evidence Code § 352, the Court concludes that the proposed deposition testimony from Uwaydah should be excluded because its probative value is decidedly outweighed by the substantial danger of undue prejudice and/or of misleading the jury.

Conclusion

Accordingly, Defendants’ Motion for a Protective Order to Preclude the Deposition of Munir Uwaydah is GRANTED.

Motion To Compel Consent to Authentication

            Defendants also move to compel Plaintiff to consent to release an original copy of an email held by a third party for document authentication.

            According to Defendants’ reply briefing, Plaintiff has agreed to obtain the consent of Kadri Uwaydah to allow the third party, Google, to release the email exchange at issue.

            Accordingly, Defendants’ Motion to Compel Consent to Authentication is GRANTED.

CONCLUSION:

For the reasons above, Defendants’ Motion for a Protective Order to Preclude the Deposition of Munir Uwaydah is GRANTED.

            Defendants’ Motion to Compel Consent to Authentication is GRANTED.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated:   December 15, 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.