Judge: Upinder S. Kalra, Case: 21STCV29661, Date: 2022-09-19 Tentative Ruling
Case Number: 21STCV29661 Hearing Date: September 19, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: September
19, 2022
CASE NAME: Sonny Benudiz v. William A. Soroky
CASE NO.: 21STCV29661
PLAINTIFF’S
MOTION TO COMPEL DEPOSITION
MOVING PARTY: Plaintiff Sonny Benudiz
RESPONDING PARTY(S): Defendant William A. Soroky
REQUESTED RELIEF:
1. An
order compelling Defendant William A. Soroky to attend a deposition and produce
documents
TENTATIVE RULING:
1. Motion
to Compel Deposition is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On August 11, 2021, Plaintiff Sonny Benudiz (“Plaintiff”)
filed a complaint against Defendant William Soroky (“Defendant.”) The First
Amended Complaint was filed on September 23, 2021. The Second Amended Complaint
was filed on December 8, 2021. The complaint alleges four causes of action: (1)
Breach of Contract, (2) General Negligence – Professional Negligence, (3)
Intentional Tort, and (4) General Negligence – Professional Negligence.
Benudiz alleges that Soroky represented three individuals,
including Benudiz, who were sued for fraud. Benudiz was sued in that lawsuit as
a real estate agent. The other individual defendants in that action provided
Soroky as the attorney for the group. In late 2020, pursuant to a stipulated
judgment which was entered in April 2001, the plaintiff in that underlying
action, Joseph Mika, obtained a writ of attachment of approximately $50,000 of
Benudiz’s funds. Benudiz alleges that Soroky approved that stipulated judgment
without ever disclosing it to Benudiz and that the stipulated judgment contained
Benudiz’s forged signature. When Benudiz attempted to quash the writ of
attachment in 2021, Benudiz attempted to contact Soroky, but was ignored.
Soroky then apparently signed a declaration that Mika’s attorney prepared for
him on February 22, 2021 as part of the writ of attachment proceedings. Benudiz
alleges that Soroky breached the duty of loyalty to Benudiz by signing that
declaration, assisting Mika in his collection efforts and by discussing and
disclosing confidential information that was adverse to his former client to
Mika’s counsel. Benudiz seeks exemplary damages against Soroky based on these
allegations.
On July 6, 2022, Plaintiff filed a Motion to Compel
Deposition. Defendant’s Opposition was filed on September 6, 2022. Plaintiff’s
reply was filed on September 12, 2022.
LEGAL STANDARD
“If, after service of a deposition notice,
a party to the action... without having served a valid objection under Section
2025.410, fails to appear for examination… the party pursuing the deposition
“may move for an order compelling the deponent’s attendance and testimony, and
the production for inspection of any document … described in the deposition
notice.” Code Civ. Proc., § 2025.450 (a). The motion shall set
forth specific facts showing good cause justifying the production for
inspection of any document described in the deposition notice and shall also be
accompanied by a meet and confer declaration under 2016.040. Id. at § 2025.450 (b)(2). If the deponent
fails to attend the deposition, the petitioner must provide a declaration
indicating the deponent was contacted about the nonappearance. Id.
ANALYSIS:
Plaintiff moves the court to compel William A. Soroky to
attend a deposition.
Under California Code of Civil
Procedure § 2025.010, any party may obtain discovery “by taking in California the oral deposition of any
person, including any party to the action.” Additionally, under
CCP § 2025.280(a), service of notice of a deposition on a party to the action
is effective to require that party to attend a deposition.
Here, the Defendant did not attend the June 23, 2022,
deposition. (Dec. Fischbach ¶ 2, Ex. 1 and 2.) Plaintiff requests sanctions
based on this failure to attend.
In response, Defendant contends
that due to medical reasons – specifically, that Defendant has kyphosis and potentially
Multiple Myeloma (cancer of plasma cells) – he was unable to attend the
deposition. (Dec. Soroky ¶ 5, 6.) Defendant informed Plaintiff five days after
receiving the notice of Defendant’s unavailability. (Dec. Slates ¶ 11-14.) Defendant
has also provided letters from two medical professionals, Dr. Nomoto and Dr.
Rosenbloom, who both indicated that due to Plaintiff’s current condition and
potential course of treatment the deposition should be postponed for sixty days
or he is cleared by Neurosurgery. (Dec. Slates, Ex. 9-11.)
When a party
deponent seeks to excuse disobedience of a deposition notice, trial courts
examine whether (1) the excuse is adequately documented, (2) the deponent gave
reasonable notice of the existence of the excuse and made a reasonable effort
to be available at another time, and (3) the moving party made a reasonable
effort to accommodate the deponent’s special needs. (Cal. Judges Benchbook:
Civil Proceedings – Discovery (2020) Motion to Compel Attendance, § 15.40.) Defendant
has established substantial justification for failing to attend the deposition
because the three above factors have been met.
First, two medical professionals
provided notes indicating that Defendant’s medical conditions are severe enough
that a deposition is not feasible at this time until more testing can be done.
(Dec. Slates, Ex. 9-11.) Defendant also provided a declaration outlining his
brief medical issues. (Dec. Soroky ¶ 4-10.)
Second, as is evidenced by the
emails between parties, Plaintiff was informed that Defendant would be unable
to attend the deposition due to medical reasons five days after the notice was
served. These emails also indicate that the parties agreed for an abeyance as
to discovery, specifically the June 23rd deposition. (Dec. Slates,
Ex. 4-6.) Further, Additionally, there will be no prejudice to Plaintiff to
postpone the deposition because Plaintiff currently has a motion for leave to
file a third amended complaint scheduled for October 3rd, 2022, and
trial is not set until August 2023. Postponing the deposition is necessary
considering Defendant’s medical issues. Additionally, the prejudice argument
also fails because Defendant has indicated that he will sit for a deposition,
but would like to postpone until he is medically cleared. The transcript
indicates that sixty days is a reasonable time frame. (Dec. Slates, Ex. 8.)
Third, Plaintiff’s counsel did not
attempt to make a reasonable accommodation. For example, the transcript
provided by Defendant shows that Plaintiff’s counsel unilaterally ended the
deposition after he was informed on multiple occasions that Defendant was
unable to attend for medical reasons. These transcripts also indicate that
Plaintiff was not amenable and unwilling to attempt any sort of negotiations,
cutting off opposing counsel and even arguing that he would bring an ex parte
application as to the deposition. (Dec. Slates, Ex. 8.)
Plaintiff is entitled to take Mr.
Soroky’s deposition because he is a party to the action. However, the evidence
provided indicates that Defendant is unable to be deposed currently because of
his medical conditions, which is a valid reason. The Court agrees that the
deposition should take place as Plaintiff argues but should be set for a date
no earlier than 60 days from the date of the hearing, as determined by Mr.
Soroky’s doctors.
Accordingly, the Court finds for
all of the foregoing reasons that Defendant and his counsel acted with
substantial justification and declines to award and monetary sanctions.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion to
Compel Deposition is GRANTED. The Court will set a date for the deposition at
the hearing. If, however, the medical prognosis of Defendant changes in that
time period, the Court may amend this order.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: September
19, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court