Judge: Virginia Keeny, Case: LC106864, Date: 2023-01-20 Tentative Ruling
Case Number: LC106864 Hearing Date: January 20, 2023 Dept: W
lucky’s two-way radios, inc. et al., v.
cannata
PLAINTIFFS’ MOTION FOR COURT ORDER THAT DEFENDANT
FRANK J. CANNATA AND LEVI LESCHES, ESQ. APPEAR FOR DEPOSITION and Cannata’s MOTION
FOR RELIEF FROM DEFAULT TO COMPEL FURTHER COMPLIANCE WITH THE COURT’S DISCOVERY
ORDERS; AND TO COMPEL FURTHER COMPLIANCE WITH THE COURT’S DISCOVERY ORDERS
Date of Hearing: January 20, 2023 Trial Date: March 13, 2023
Department: W Case No.: LC106864
BACKGROUND
Plaintiffs Lucky’s Two-Way Radios, Inc. and Buddy Corporation (“LTWR”)
allege that Frank J. Cannata (“Cannata”) was a consultant for Plaintiffs’
business pursuant to a consulting services agreement. While consulting for
Plaintiffs, Cannata allowed or arranged for valuable company property to be
taken by “Mr. Recycling” without Plaintiffs’ consent. Plaintiff further claims
that on December 8, 2017, Cannata improperly transferred proprietary
information via e-mail to personal accounts. Plaintiff alleges a loss of
$500,000 in property.
Plaintiffs filed a complaint on February 13, 2018. The Second
Amended Complaint (“SAC”) was filed on August 7, 2020, alleging: (1) Breach of
Contract; (2) Conversion; (3) Breach of Fiduciary Duty; (4) Fraud and Fraudulent
Concealment; (5) Specific Performance; and (6) Permanent Injunction
On March 29, 2019, the court granted Cannata’s motion for leave to
file a cross-complaint. Cannata filed the first amended cross-complaint against
Plaintiffs Lucky’s Two-Way Radios, Inc. and Buddy Corporation on April 10,
2019.
Cannata filed a second amended cross-complaint (“SAXC”) on August
2, 2019. The SAXC against Cross-Defendants alleges several causes of action
including breach of contract, indemnity, labor code retaliation and wage and
hour violations, false pretenses, fraud, battery, stored communications
violations, trespass, and unfair competition.
On October 13, 2020, default was entered against Defendant because
he failed to file an answer to the SAC. Default was set aside and vacated on
December 17, 2020.
[Tentative] Ruling
I.
Plaintiffs’ Motion for Court Order that Defendant Frank J. Cannata
and Levi Lesches, Esq. Appear for Deposition is GRANTED as to Mr. Cannata and
DENIED as to Mr. Lesches.
II.
Cannata’s Motion for Relief from Default to Compel Further Compliance
with the Court’s Discovery Orders; and to Compel Further Compliance with the
Court’s Discovery Orders is GRANTED.
discussion
I.
PLAINTIFFS’ MOTION FOR COURT ORDER
THAT DEFENDANT FRANK J. CANNATA AND LEVI LESCHES, ESQ. APPEAR FOR DEPOSITION
Plaintiffs move to this court for an order to set a deadline date
certain for the continued deposition of Defendant/Cross-Complainant Frank J.
Cannata and to compel the deposition of Levi Lesches, Esq. on to take place by
a date certain. Plaintiffs make the motion pursuant to Code of Civil Procedure
§2025.610(b).
Request for Judicial Notice
Plaintiffs request the court take judicial notice Plaintiffs Motion
of Plaintiffs/Cross Defendants Lucky’s Two-Way Radios Inc. and Buddy Corporation
to Disqualify Counsel for Frank J. Cannata, Levi Lesches and Lesches Law (RJN,
Exh. A) and the Declaration of Frank J. Cannata in support of Opposition to
Motion for Preliminary Injunction dated March 28, 2018 (RJN, Exh. B). The court
grants Plaintiffs’ request for judicial notice.
Cannata also requests this court take judicial notice of several
documents filed with the court and transcripts of proceedings. (RJN, Exh. A-J.)
The court grants Cannata’s request for judicial notice.
Cannata’s Deposition
Code of Civil Procedure section 2025.610 governs subsequent
deposition of deponents. Section
2025.610 provides that “[o]nce any party has taken the deposition of any
natural person, including that of a party to the action, neither the party who
gave, nor any other party who has been served with a deposition notice pursuant
to Section 2025.240 may take a subsequent deposition of that deponent.” (CCP
§2025.610(a).) “Notwithstanding subdivision (a), for good cause shown, the
court may grant leave to take a subsequent deposition, and the parties, with
the consent of any deponent who is not a party, may stipulate that a subsequent
deposition be taken.” (CCP §2025.610(b).)
Plaintiffs argue good cause exists for this court to support
ordering Mr. Cannata to appear for another deposition on the grounds: Mr.
Cannata’s claims against Plaintiffs involve employment issues, which are not
subject to the seven hour time limit related to civil depositions; Mr. Cannata
has produced roughly 3,700 documents and Plaintiffs still have a substantial
amount of documents to question Mr. Cannata about; Plaintiffs still have to
question Mr. Cannata about his hostile work environment, retaliation, and
mistreatment claims; and Plaintiffs’ inability to complete Mr. Cannata’s
deposition thus far is because he and his counsel failed to appear timely at
each of the most recent depositions. To date, Mr. Cannata’s depositions have lasted
3.0 hours on November 11, 2022, 4.5 hours on November 17, 2022, and 3.5 hours
on December 14, 2022. (Crossin Decl. ¶12.)
In opposition, Cannata does not dispute the grounds for compelling
Mr. Cannata’s further deposition. Cannata instead argues he cannot be compelled
to spend more than eighteen hours at deposition while Plaintiffs are refusing
to produce their PMQs, to answer questions regarding—amongst other matters—why
LTWR’s PMQ gave diametrically different testimony in his PMQ deposition in this
action as compared to the testimony given to Hartford in the Examination Under
Oath.
The court concludes Plaintiffs have demonstrated good cause for a
subsequent deposition of Mr. Cannata. Although this may be Mr. Cannata’s fifth
deposition, Plaintiffs have demonstrated there are several issues that Mr.
Cannata needs to be deposed of and that could not be completed previously.
The court orders Mr. Cannata appear for deposition within 30 days
of notice of the Court’s order, unless Defendants stipulate otherwise.
Counsel’s Deposition
“Depositions of opposing counsel are presumptively improper,
severely restricted, and require “extremely” good cause—a high standard.” (Carehouse
Convalescent Hospital v. Sup. Ct. (2006) 143 Cal.App.4th 1558, 1562.) To
show “extremely” good cause for the deposition of opposing counsel, the
deposing party must show that (1) there are no other practicable means to
obtain the information and (2) the information is crucial to the presentation
of the case. (Id. at 1563.) If the deposing party meets its initial
burden, the opposing party must then show that the information sought is
privileged to avoid the deposition. (Ibid.)
The court in Carehouse discussed the various reasons a
deposition of opposing counsel should be a final measure and not the first
option:
Attorney depositions are
disruptive, and add to the length and expense of litigation. Rather than
preparing the clients' case for trial, counsel must be prepared (often by
retaining additional counsel) to place himself or herself in the witness box,
being a responsive witness while remaining a partisan advocate. “There is a
reason there are so few successful player-coaches—it's hard to do two things
well at the same time.... We speak from painful experience: Lawyers make the
absolute worse deposition witnesses.” (Solovy & Byman, Discovery: Opponent
Deponents 23 Nat'l L.J. (Jan. 8, 2001) p. A17.) The parties get sidetracked
into endless collateral disputes about which attorney statements are protected
and which are not, and it increases the possibility that the lawyer may be
called as a witness at trial. “It is not hard to imagine additional pretrial
delays to resolve work-product and attorney-client objections, as well as
delays to resolve collateral issues raised by the attorney's testimony. (Spectra–Physics,
supra, 198 Cal.App.3d at p. 1494, 244 Cal.Rptr. 258.)
Attorney depositions chill the
attorney-client relationship, impede civility and easily lend themselves to
gamesmanship and abuse. “Counsel should be free to devote his or her time and
efforts to preparing the client's case without fear of being interrogated by
his or her opponent.” (Spectra–Physics, supra, 198 Cal.App.3d at
p. 1494, 244 Cal.Rptr. 258.) “[I]n the highly charged atmosphere of litigation,
attorney depositions may serve as a potent tool to harass an opponent.” (Flynn,
Jr., On ‘Borrowed Wits': A Proposed Rule for Attorney Depositions (1993) 93
Colum. L.Rev.1956, 1965 (hereafter Flynn, Jr.).)
(Id. at 1562-63.)
Plaintiffs argue on June 8, 2018, in response to a demand for
production of documents by Plaintiffs, Mr. Lesches served documents to
Plaintiffs that included documents containing Plaintiffs’ private and
privileged information. Plaintiffs contend the information produced suggests
that the subject private and privileged documents were sent to him by Mr.
Cannata on June 5, 2018 and the simplest and most prompt means of determining
where Mr. Lesches obtained the subject private and privileged documents is to
ask him directly.
Mr. Lesches opposes the motion on several grounds including that
the basis for Plaintiffs’ Spectra-Physics order has been litigated over
and over again, the motion is procedurally defective, and Plaintiffs seek
privileged information.
The court denies Plaintiffs’ motion to compel the deposition of
Mr. Lesches. Plaintiffs have not satisfied the first prong of showing that
there is no other practical means for obtaining the information. Plaintiffs
argue the information is relevant as the origin of the documents Mr. Lesches
produced to Plaintiffs on June 8, 2018, goes to the very heart of Mr. Cannata’s
violations of the NDA and his credibility as a witness. However, Cannata has
testified on several occasions now that he did not give the subject documents
to Mr. Lesches nor could he recall what documents were possessed by him upon his
departure. Although Plaintiffs may be unhappy with Cannata’s responses, that
does not mean Plaintiffs may now pursue opposing counsel. As noted above, “’[c]ounsel should be free to devote his
or her time and efforts to preparing the client's case without fear of being
interrogated by his or her opponent.’ (Spectra–Physics, supra,
198 Cal.App.3d at p. 1494, 244 Cal.Rptr. 258.)” (Carehouse, supra,
143 Cal.App.4th at p. 1562-63.)
Moreover, determining how Mr. Lesches obtained the subject
documents—if not from Cannata—is not crucial to Plaintiffs case. Plaintiffs
case surrounds alleged NDA violations by Cannata. As to the third prong, the
determination of whether or not the deposition violates attorney work product
is not necessary to the disposition of the motion as Plaintiffs have not met their
initial burden of satisfying the first two prongs required by Carehouse.
Each prong “poses an independent hurdle to deposing an adversary's counsel; any
one of them may be sufficient to defeat the attempted attorney deposition.” (Carehouse,
supra, 143 Cal.App.4th at p. 1563.)
The court need not address Mr. Lesches’ contention the motion is
procedurally defective. Accordingly, Plaintiffs’ motion to compel the
deposition of Mr. Lesches is DENIED.
II.
CANNATA’S MOTION FOR RELIEF FROM DEFAULT TO COMPEL FURTHER COMPLIANCE
WITH THE COURT’S DISCOVERY ORDERS; AND TO COMPEL FURTHER COMPLIANCE WITH THE
COURT’S DISCOVERY ORDERS
Cannata moves the court pursuant to Code of Civil Procedure
section 2031.230 for an order relieving Cannata from default under section 473
of the Code of Civil Procedure and/or enforcing compliance with the Court’s
prior orders.
Request for Judicial Notice
Plaintiffs request this court take judicial notice of Frank J.
Cannata’s September 21, 2022, Motion that Mr. Lesches voluntarily withdrew to
show the further responses to discovery sought in this motion are the
same as those sought in the current Motion for Relief From Default (RJN, Exh.
1) and the Court’s November 9, 2022, Minute Order confirming on Pages 3, 6 and
11 that Mr. Cannata’s September 21, 2022 Motion had been withdrawn by Mr.
Lesches (RJN, Exh. 2).
The court grants Plaintiffs’ request for judicial notice.
Discussion
Cannata first seeks “relief from default.” Cannata argues he
timely sought to compel discovery responses the court had previously ordered
Plaintiffs to produce, but due to a technical malfunction, the relevant papers
were filed late by two minutes. (Lesches Decl. ¶22.) Consequently, Cannata
withdrew the motion to compel further discovery responses and, in its place,
Cannata sought terminating sanctions for Plaintiffs’ willful noncompliance with
discovery orders. (Lesches Decl. ¶¶23-24.) The court denied the motion and expressed
its views that issues relating to a web-browser crash should be raised under
section 473 rather than as a motion for sanctions. (Lesches Decl. ¶25.) Cannata
moves under Code of Civil Procedure section 473(b).
First, the court notes the motion is improperly labeled relief
from default. As noted by Plaintiffs, no default has occurred. However, the
court agrees Code of Civil Procedure section 473(b) is the proper mechanism to
seek relief for an untimely motion to compel further discovery responses. The
court is empowered to relieve a party “upon any terms as may be just … from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP
§ 473(b).) The reference to “judgment … order or other proceedings” refers to any
step in the action, from the commencement to the termination is a proceeding. (Zellerino
v. Brown (1991) 235 Cal.App.3d 1097, 1105.) “Without more, section 473
would apply to discovery demands generally, as a discovery demand is a ‘step
taken in a case ... by one of the parties thereto.’” (Id. at p. 1106.)
However, the court is puzzled as to why Cannata initially sought
to compel further responses as opposed to a motion to compel compliance with a
court order. Cannata’s entire premise is Plaintiffs have refused to comply with
this court’s orders. When a party fails to obey a court’s prior order
compelling compliance with a discovery demand/request, the court “may make
those orders that are just,” such as imposing an issue sanction, evidence
sanction, terminating sanction, and/or monetary sanction. (See, e.g., CCP §§
2030.290(c) (motion to compel answers), 2030.300(e) (motion to compel further
answers), 2031.300(d)(1) (motion to compel response to production request),
2031.310(i) (motion to compel further response to production request),
2031.320(c) (motion to compel compliance with response).) The court addressed
this very issue at the November 9, 2022 hearing. (See November 9, 2022 Minute
Order.)
Based on the foregoing, the court finds there was no time limit on
bringing a motion to compel compliance and Cannata does not need to seek relief
to refile the motion to compel compliance. For the sake of judicial economy,
the court GRANTS the request to compel compliance with this request. Plaintiffs
are ordered to produce all responsive documents to the following: (1) Responses
of Plaintiff LTWR to Cannata’s specially prepared interrogatories, to LTWR,
Nos. 129, 130, 131, 140, 141; (2) Responses of Plaintiff LTWR to Cannata’s inspection
demands, to LTWR, Nos. 103, 104, 105, 106, 107, 108, 109, 110, 112, 114, 115, 116,
117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129; and (3) Responses
of Plaintiff Buddy to Cannata’s inspection demands, to Buddy, Nos. 81, 82, 83,
84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99. Plaintiffs are
ordered to produces responses, without objection within 20 days.
If Plaintiffs fail to comply, Cannata may bring a motion for
evidence or issue sanctions.
Monetary Sanctions
Plaintiffs seek monetary sanctions in the amount of $2,550.00 for
having to oppose the motion. Plaintiffs’ request for monetary sanctions is
DENIED.