Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2023-01-11 Tentative Ruling
Case Number: 19STCV26512 Hearing Date: January 11, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 11, 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 TERMINATING SANCTIONS, OR ALTERNATIVELY, FOR ISSUE AND EVIDENTIARY
SANCTIONS 
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:
Plaintiff
alleges that the lawyer Defendants made misrepresentations to it so that it would
pay them $600,000 to provide services to another of their clients, Paul Turley.
Defendants move
for terminating sanctions or, in the alternative, issue and evidentiary
sanctions.
TENTATIVE RULING:
Defendants’
request for terminating sanctions is DENIED.
Defendants’
request in the alternative for issue or evidentiary sanctions is DENIED
Plaintiff
is ordered to either make its person most qualified available for a subsequent
deposition at a time and place of Defendants’ election, after complying with
the Court’s preparation requirements described herein, or, alternatively, at
Defendant’s election, make Munir Uwaydah and/or Janek Hunt available for remote
deposition at a time of Defendants’ choosing.
The costs of a second deposition session, including any attorney’s fees
expended by Defendants’ lead inquisitor during the deposition itself, shall be
borne by Plaintiff.
DISCUSSION:
Defendants
move for terminating sanctions, or, in the alternative, issue and evidentiary
sanctions, for noncompliance with the Court’s November 14, 2022 Minute Order.
Legal Standard for Nonmonetary Sanctions
The Court has the authority to impose sanctions against a
party that engages in any misuse of the discovery process (Code Civ. Proc. §
2023.030), including “[f]ailing to respond or to submit to an authorized method
of discovery.” (Code Civ. Proc. §§ 2023.010(d).) A party engaging in this
conduct may be subject to sanctions including monetary sanctions (Code Civ
Proc. § 2023.030(a)), evidence sanctions (Code Civ. Proc. § 2023.030(c)) or
terminating sanctions. (Code Civ. Proc. § 2023.030(d).) “[T]rial
courts should select sanctions tailored to the harm caused by the misuse of the
discovery process and should not exceed what is required to protect the party
harmed by the misuse of the discovery process.” (Dept. of Forestry &
Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved of on
other grounds in Presbyterian Camp & Conference Centers, Inc. v.
Superior Court (2021) 12 Cal.5th 493.) Sanctions are generally imposed in
an incremental approach. (Id.) Generally, the appropriate sanctions when
a party repeatedly and willfully fails to provide evidence to the opposing
party as required by the discovery rules is preclusion of that evidence from
the trial. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th
377, 390, disapproved of on other grounds by Brown v. USA Taekwondo (2021)
11 Cal.5th 204.)
In considering a motion for nonmonetary
sanctions, the Court is to attempt to “tailor the sanction to the harm caused
by the withheld discovery.” (Collisson
& Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.)
[T]he question before this court is not
whether the trial court should have imposed a lesser sanction; rather, the
question is whether the trial court abused its discretion by imposing the
sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would
have permitted [defendants] to benefit from their stalling tactics. [Citation.]
The trial court did not abuse its discretion by tailoring the sanction to the
particular abuse.
(Id. at 1620.)
Moreover,
in deciding whether to impose a terminating sanction, the trial court is to
consider the totality of the circumstances: the “conduct of the party to
determine if the actions were willful; the detriment to the propounding party;
and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th
1225, 1246.)
//
Terminating Sanctions
Defendants
request terminating sanctions against Plaintiff for failure to comply with the
Court’s November 14, 2022 Minute Order.
In
their motion, Defendants have catalogued numerous
attempts to obtain discovery from Plaintiff without success and Plaintiff’s
failure to respond to discovery motions and court orders:
Now,
Defendants contend that Plaintiff violated the Court’s November 14, 2022 order
directing Plaintiff to produce its person most qualified for deposition in Los
Angeles within 14 days.
Under Code
of Civil Procedure section 2025.230, when a deposition is noticed for a
corporate deponent, the notice “shall describe with reasonable particularity
the matters on which examination is requested.” (Code Civ. Proc. § 2025.230.)
The deponent then “shall designate and produce at the deposition those of its
officers, directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent of any
information known or reasonably available to the deponent.” (Id.) A
corporate deponent has a duty “to produc[e] the most knowledgeable person
currently in its employ and mak[e] sure that person has access to information
and documents reasonably available within the corporation.” (Maldonado v.
Superior Court (2002) 94 Cal.App.4th 1390, 1398.)
In response
to Defendants’ PMQ deposition notice pursuant to the Court’s November 14, 2022
order, Plaintiff designated David Livingston as the Person Most Qualified to
testify for Plaintiff. Mr. Livingston stated that he conferred with Plaintiff’s
counsel for approximately four to six hours, cumulatively, before the November
28 deposition to review the documents provided by Plaintiff’s counsel and to
prepare for the deposition. (Declaration of Hilary Potashner ISO Mot. Exh.
1.p.25:23-27:12.) However, at the deposition, Mr. Livingston was unable to
answer most of the questions put to him. (See generally Potashner Decl. Exh.
1.)
At the November
14, 2022 hearing on the motion to compel the PMQ deposition, Plaintiff’s
counsel represented that securing a person most qualified to testify at a
deposition in Los Angeles would be extremely difficult, as none of the
individuals with personal knowledge of the information sought by
Defendants—i.e., Munir Uwaydah and Janek Hunt—were present in the United
States, and Plaintiff did not foresee that it would be possible to bring those
individuals to the United States to testify. Plaintiff’s counsel indicated that
either Uwaydah or Hunt would be made available to testify remotely, but
Defendants insisted on an in-person PMQ deposition in Los Angeles County. Although Defendants contend here, as they
have frequently done throughout this case, that Plaintiff is an alter ego of
Munir Uwaydah, Defendants have not yet established this contention as a matter
of law. Nor can they prevent Plaintiff
from offering a properly prepared deposition designee to appear and give
testimony on behalf of Frontline, even if he lacks any personal knowledge of
the facts sought by way of deposition and is only providing “any information
known or reasonably available to the deponent,” here, Frontline. Thus, Plaintiff’s failure to bring Uwayday or
Hunt to Los Angeles County to testify does not support a finding of willful
resistance to the Court’s order.
The evidence in the record –
submitted by both parties – revealed some effort by Plaintiff to prepare Mr.
Livingston to deposition testimony on behalf of the Plaintiff entity. Disregarding Defendants’ unfair questioning
about the specific contents of documents that were withheld from Mr. Livingston
during the deposition, the deposition transcript reveals, nonetheless, that Mr.
Livingston could not provide substantive responses to key questions posed by
defense counsel. This means either that
Mr. Livingston did a poor job of remembering the information he was given, that
Plaintiff’s counsel failed to divine many of the questions that would fall
within the PMQ categories, or that Plaintiff willfully flouted the Court’s
order by producing an ignorant witness.
Defendants would have the Court adopt the last possibility as the likely
explanation for what happened. But the
Court rejects the idea that the record reflects willful opposition to the
Court’s order. This conclusion is reinforced by Plaintiff’s counsel’s efforts
to supplement the deposition testimony by providing verified responses to
questions left unanswered. Although
these answers are a poor substitute for aggressive cross-examination of an
adverse party, they do convey Plaintiff’s interest in providing information
through the discovery process and, thus, tend to support a finding of good
faith effort.
The Court
also rejects Defendants’ contention that Livingston is not even an agent of
Plaintiff as not credible on its face. An agent is one who represents another,
called the principal, in dealings with third persons. (Civ. Code § 2295.) Mr.
Livingston represented Plaintiff in its dealings with Defendants, a third party,
in the context of this deposition. That representation is sufficient to qualify
Mr. Livingston as an agent of Plaintiff for the purpose of this deposition.
As to
Defendants’ contentions that they have been prejudiced by the failure to
produce a proper witness for deposition, the Court is unpersuaded. As Plaintiff
states in its opposition to this motion, supplemental responses were timely
provided pursuant to Code of Civil Procedure section 2025.520(c). Indeed,
Defendants concede in their reply brief that supplemental responses were provided
but argue that these responses do not replace a live deposition of an informed
witness. Defendants are correct in that assessment, but, even so, that
assessment does not justify the extraordinary remedy of issue or evidentiary
sanctions, let alone terminating sanctions, especially where these defects
could likely be cured by a subsequent deposition. Further, Plaintiff warned
Defendants (and the Court) that Defendants’ preferred witnesses were
unavailable for in-person deposition in Los Angeles. Defendants cannot credibly
claim that they have been prejudiced when they were warned that what they
sought was impracticable, if not impossible, and yet proceeded anyway.
In ruling on Defendants’ previous
motion for terminating sanctions on May 27, 2022, the Court declined to award
terminating sanctions on the basis that Defendants had not shown what injury or
prejudice inured to Defendants, despite multiple failures by Plaintiff to comply
with the Court’s orders. Here, Defendants have not even clearly established any
further violation of the Court’s orders, let alone that any injury or prejudice
persists from those violations. Case law is clear regarding the imposition of
non-monetary sanctions: such sanctions are to be imposed only to the degree
necessary to remedy the prejudice to the moving party caused by the responding
party’s abuse of the discovery process. (Dept. of Forestry & Fire
Protection v. Howell, supra, 18 Cal.App.5th at 191.) Nonmonetary
sanctions are a protective measure, not a punishment. The Court therefore declines to award
terminating at this time.
That said,
in the interest of ensuring that Defendants have a fair opportunity to secure
meaningful live deposition testimony, the Court orders that Plaintiff prepare
its corporate designee fully for a further deposition using the unanswered
questions posed by defense counsel as a guide for what information must be
gathered in advance of the second day of deposition and drawing all
“information known or reasonably availability to [Frontline].” Since it is clear that both Hunt and Uwaydah
are cooperating with Frontline in its prosecution of this action, the
preparation of Mr. Livingston or another designee must draw from information
harbored by these two men either directly through the designee’s investigation
of available information these witnesses can offer or in a joint meeting
between the designee, Frontline’s counsel, and Hunt and/or Uwaydah. The failure to include these key repositories
of Frontline’s information in the deposition preparation of its PMQ designee
deprives Defendants of information they are entitled to learn. While not willful, the Court finds that
Frontline’s preparation of its designee fell short of its responsibilities
under the California Discovery Act and, accordingly, that Frontline should pay
the costs of the second deposition session, including any attorney’s fees
expended by Defendants’ lead inquisitor during the deposition itself. The deposition will be conducted at a time
and place of Defendants’ choosing and using whatever recording method is
selected by Defendants. In the
alternative, at Defendant’s election, Plaintiff will make Munir Uwaydah and/or
Janek Hunt available for remote deposition as Plaintiff’s PMQ designee(s) at a
time of Defendants’ choosing.
Issue and Evidentiary Sanctions
Defendants
in the alternative request issue sanctions establishing that Bird Marella
adequately disclosed any conflicts of interest arising out of its
representation of Paul Turley and that Plaintiff provided sufficient informed
consent for Defendant to engage in that representation; that Bird Marella did
not misrepresent that the two cases in which it represented Turley were
separate and distinct, and that representation for the second criminal case
fell outside the scope of the fee agreement for the first case; and that
Plaintiff and Munir Uwaydah are alter egos. Defendants also request evidentiary
sanctions precluding Plaintiff from offering evidence at trial as to
Plaintiff’s organizational structure; the nature, scope, and duration of Bird
Marella’s representation of Plaintiff and the content of the communications
between them; payments to Bird Marella for Paul Turley’s representation;
conflict waivers signed by Plaintiff; communications between Plaintiff and Bird
Marella regarding representation of Paul Turley; injury caused by an inadequate
conflict of interest disclosure; and liens against Plaintiff.
Section 2023.030 authorizes two
other forms of non-monetary, non-terminating sanctions. First, an issue
sanction may order that “designated facts shall be taken as established in the
action in accordance with the claim of the party adversely affected by the
misuse of the discovery process.” (Code Civ. Proc. § 2023.030(b).) Second, an
evidence sanction may “prohibit[] any party engaging in the misuse of the
discovery process from introducing designated matters in evidence.” (Code Civ.
Proc. § 2023.030(c).) When a plaintiff fails to answer interrogatories on
certain issues, those issues may be deemed established. (Juarez v. Boy
Scouts of America, Inc. (200) 81 Cal.App.4th 377, 387.) When a party
repeatedly and willfully fails to provide certain evidence to an opposing party
as required by the discovery rules, preclusion of that evidence may be
appropriate. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315.)
Defendants contend that these
sanctions are warranted based on Plaintiff’s repeated failure to comply with
its discovery obligations and the inadequate deposition testimony provided on
November 28, 2022. For the reasons stated above, the Court rejects Defendants’
contentions.
CONCLUSION:
Accordingly,
Defendants’ request for terminating sanctions is DENIED.
Defendants’
request in the alternative for issue or evidentiary sanctions is DENIED
Plaintiff
is ordered to either make its person most qualified available for a subsequent
deposition at a time and place of Defendants’ election, after complying with
the Court’s preparation requirements described herein, or, alternatively, at
Defendant’s election, make Munir Uwaydah and/or Janek Hunt available for remote
deposition at a time of Defendants’ choosing.
The costs of a second deposition session, including any attorney’s fees
expended by Defendants’ lead inquisitor during the deposition itself, shall be
borne by Plaintiff.
Moving parties to give notice,
unless waived.
//
//
IT IS SO ORDERED.
Dated: January 11,
2023 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court