Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2023-01-05 Tentative Ruling


Case Number: 19STCV26512    Hearing Date: January 5, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     January 5, 2023                                 TRIAL DATE: May 23, 2023

 

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

 

CASE NO.:                 19STCV26512

 

     

 

 MOTION FOR PROTECTIVE ORDER TO PRECLUDE DEPOSITION TESTIMONY

 

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

 

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

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            In its First Amended Complaint filed on December 16, 2021, Plaintiff alleges that the lawyer Defendants made misrepresentations to induce payment of $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.

 

TENTATIVE RULING:

 

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

 

DISCUSSION:

 

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

 

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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 any trial 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 based on Defendants’ contention that Plaintiff is an alter ego of Uwaydah. This issue is also the subject of Defendants’ Motion in Limine No. 1, 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. Persuaded that the alter ego determination requires a Phase 1 bench trial, which has been scheduled for May 23, 2023, the Court declines to address this issue in the context of this 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.

 

Further, Defendants contend that permitting the use of Uwaydah’s deposition testimony at trial 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.  In a related argument, Defendants urge the Court to bar the admission of Uwaydah’s deposition testimony 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 [Bold emphasis added].) 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.)

 

As the Court has previously stated, and the parties agree, the determination of liability rests on Uwaydah’s credibility. The centrality of Uwaydah’s testimony is apparent from the Court’s October 7, 2021 ruling on Defendants’ Motion for Summary Judgment or, in the alternative, Summary Adjudication. In the Court’s ruling on that motion, the Court denied summary adjudication on the first five issues on the basis that Plaintiff had produced evidence sufficient to establish a triable issue of fact. That evidence consisted almost entirely of sworn statements made under penalty of perjury by Munir Uwaydah, including statements that Uwaydah arranged for payments to Defendants on behalf of Plaintiff through other entities (see Ruling on Matter Taken Under Submission, p. 4) and that Defendants did not adequately explain the facts and circumstances giving rise to a potential conflict of interest such that Plaintiff could validly waive any conflict of interest. (Id., p. 5.)

 

Here, unlike in the context of the July 26 ruling, 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 the witness’s natural human reactions to being questioned in real time at trial before a duly empaneled jury.  Allowing admission of a videotaped deposition, rather than live testimony before a jury, presents the witness in an insulated, protected environment where he makes statements without the scrutiny of jurors whose presence necessarily impacts on the witness’s ability to control his facial expressions, tone of voice, and diction. 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 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. For this reason alone, the Court would be within its discretion to prohibit the introduction of Uwaydah’s deposition as evidence.

 

 An additional concern raised by Defendants is how jury is to evaluate Uwaydah’s credibility, when there is no enforceable threat of a penalty for perjury. Although Defendants generally challenge Uwaydah’s credibility based on the fraud-related felony charges that have been preferred against him and Uwaydah’s refusal to return to the United States because of those charges, pending criminal charges such as these, even for crimes of dishonesty, are not admissible to attack a witness’s credibility.  That said, because Plaintiff’s case-in-chief turns on the testimony of Uwaydah, his credibility of central importance to the integrity of the trial.  A guarantee that Uwaydah’s testimony is provided under penalty of perjury is therefore essential to ensure that the jury can decide this matter based on valid evidence and not inadmissible hearsay.

 

At the previous hearing on this matter, Plaintiff argued that Uwaydah could, under Lebanese law, agree to waive his protection from extradition on the basis of a potential perjury charge, thereby curing the lack of an enforceable guarantee of a penalty for perjury. The Court ordered supplemental briefing on this issue in its December 16, 2022 minute order, which the parties have provided.

 

In its supplemental opposition, Plaintiff argues that, under Lebanese law, Uwaydah could voluntarily waive his protection from extradition for a charge of perjury and therefore his testimony should not be excluded. In support of this position, Plaintiff offers the expert testimony of Attorney Nassib Zoughaib and Judge Helmy Al-Hajjar (Ret.).  According to Plaintiff’s experts, Article 30 of the Lebanese penal code prohibits extradition except pursuant to a treaty or as explicitly provided by Lebanese law. (Declaration of Nassib Zoughaib ISO Opp. Exh. A. p.2.) According to Attorney Zoughaib, extradition is expressly prohibited under Article 32 when (1) the crime takes place on Lebanese soil; (2) when the crime takes place outside of Lebanon but is a “designated crime” affecting the essential interests of the Republic of Lebanon; or (3) when the crime takes place outside of Lebanon, but the alleged perpetrator is a Lebanese citizen and has not waived their protection from extradition. (Id.) Plaintiff argues that under the latter provision, which permits extradition of a person who explicitly declares their approval of extradition, Uwaydah can declare his consent to be extradited for charges relating to perjury. (See Id. p. 3.)

 

Plaintiff’s argument is flawed in multiple respects. First, as explained by Defendants’ expert, Attorney Amy Jeffress, federal law only permits extradition to the United States “[w]henever there is a treaty or convention for extradition between the United States and any foreign government.” (18 U.S.C. § 3184; see Declaration of Amy Jeffress ISO Mot. ¶¶ 17-20.) Federal law does not provide a mechanism for extradition when there is no treaty or convention, notwithstanding any waiver of the protection from extradition by the individual in question. Thus, any purported waiver by Uwaydah is immaterial and unenforceable because, without an extradition treaty, Uwaydah could not be extradited by federal, state, or local prosecutors to answer a charge of perjury.

 

Second, according to the testimony of Plaintiff’s own experts, extradition would not be permitted under Article 32 for any crimes committed on Lebanese soil, notwithstanding any purported waiver of the protection from extradition. Any perjury committed by Uwaydah in his deposition would occur where his deposition takes place—namely, on Lebanese soil. Therefore, it appears to the Court, based on the testimony presented, that Lebanese law would not permit extradition for perjury committed in Uwaydah’s deposition, notwithstanding any purported waiver by Uwaydah. In fact, according to Plaintiff’s experts, the criminal charges for which Uwaydah could validly be extradited under an enforceable waiver are precisely the pending criminal charges for which he refuses to consent to extradition.   

 

 Uwaydah’s residence in Lebanon and his Lebanese citizenship put 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. As the Court previously stated, if Plaintiff wishes to offer Uwaydah’s testimony before the jury, he must appear in person to deliver it.

 

Accordingly, pursuant to its discretion under Evidence Code section 352, the Court concludes that the proposed deposition testimony from Uwaydah should be excluded because its probative value is markedly outweighed by the substantial danger of undue prejudice and/or of misleading the jury and would be tantamount to the admission of out-of-court hearsay.

 

CONCLUSION:

 

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

 

Moving parties to give notice, unless waived.

                       

IT IS SO ORDERED.

 

Dated:   January 5, 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.