Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2023-03-09 Tentative Ruling


Case Number: 19STCV26512    Hearing Date: March 9, 2023    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     March 9, 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:

           

            Plaintiff alleges the lawyer Defendants made misrepresentations to induce Plaintiff to pay $600,000 to provide legal 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.

 

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 bar 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 [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 presented 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 of 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 basic indicators such as facial expression, 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 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. 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 Uwaydah’s credibility, or lack thereof, when there is no enforceable threat of a penalty for perjury. Although Defendants generally challenge Uwaydah’s credibility based on the active prosecution against him for fraud-related felony charges and Uwaydah’s refusal to return to the United States to face those charges, pending criminal charges, even for crimes of dishonesty, are not valid evidence of witness’s credibility. However, where, as here, Plaintiff’s case in chief turns entirely on the testimony of a witness, the credibility of that witness is the central issue of the case. A guarantee that Uwaydah’s testimony is provided under penalty of perjury is therefore essential to ensure that the jury can decide this matter on the basis of valid evidence and not inadmissible hearsay.

 

At the previous hearings on this matter, Plaintiff argued that Uwaydah could, under Lebanese law, stipulate to waive his protection from extradition in connection with a potential perjury charge, thereby curing the lack of an enforceable guarantee of a penalty for perjury, and that he was in the process of doing so. The Court ordered supplemental briefing on this issue, first in its December 16, 2022 minute order in regards to the feasibility of obtaining this waiver, and then in its January 5, 2023 minute order as to any evidence that Plaintiff has obtained this waiver, which the parties have provided.

 

In its first 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 Article /230/ 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.)

 

In opposition, Defendants offer the testimony of their own expert, Attorney Amy Jeffress, who states that 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.) As Defendants correctly state, 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, Defendants argue, any purported waiver by Uwaydah is immaterial because, without an extradition treaty, Uwaydah could not be extradited by federal, state, or local prosecutors to answer a charge of perjury in any event.

 

In its second supplemental opposition, Plaintiff states that Ms. Jeffress’s testimony is erroneous, and that Lebanon routinely receives extradition requests from the United States and grants them when appropriate. (See Supplemental Declaration of Helmy Al-Hajjar ISO Opp. ¶ 8-18.) Plaintiff’s expert further states that the Los Angeles District Attorney’s Office has done precisely this in connection with the ongoing criminal matter involving Mr. Uwaydayh. (Id. ¶ 19.) Defendants vigorously challenge the adequacy and legitimacy of Plaintiff’s expert testimony with their own expert testimony, and Plaintiff has responded in kind. (See generally, Declaration of Elias Chedid ISO Mot.; Third Declaration of Helmy Al-Hajjar ISO Opp.) However, even if the Court were to accept Plaintiff’s evidence as true, Plaintiff’s argument remains unpersuasive. Plaintiff’s argument falters in that this evidence only tends to show that the United States has a practice of requesting that Lebanon surrender Lebanese citizens to the United States. Indeed, as Ms. Jeffress notes in her supplemental testimony, the examples upon which Plaintiff’s expert relies are not extradition requests pursuant to a bilateral treaty, but rather are either requests for an individual’s removal, not extradition, or extradition pursuant to one of three multilateral conventions, none of which authorize perjury as an independent basis for extradition. (Supplemental Declaration of Amy Jeffress ISO Mot. ¶¶ 10-12.) What this evidence does not show is that this Court has the authority to issue a warrant for Munir Uwaydah’s apprehension and rendition to Los Angeles for perjury in his deposition, as such a warrant is explicitly precluded by federal law. (18 U.S.C. § 3184.) Thus, even accepting all of Plaintiff’s contentions and evidence as true, the Court still lacks the authority to order his extradition as a matter of law regardless of the enforceability of any waiver under Lebanese law.

 

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. 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 decidedly outweighed by the substantial danger of undue prejudice and/or of misleading the jury and would be tantamount to inadmissible 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:   March 9, 2023                                   ___________________________________

                                                                                    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.