This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of Defendant Shiraz Shivji[1] “to revoke or set aside the Court’s June 8, 2014 order and staying the deposition of Giotti Inc.’s PMQ” was argued and submitted.[2]

On its own motion, this Court issued an Order to Plaintiff to Show Cause in re contempt as to whether Plaintiff’s noticing of the deposition in question constituted an intentional violation of this Court’s lawful orders.

Plaintiff filed formal opposition.[3]

Statement of Facts

This case arises out of an attorney fee dispute. Plaintiff is a patent attorney retained by Defendant in 2003. According to the allegations of the complaint, Defendant signed an agreement whereby he agreed to pay Plaintiff in exchange for legal services. Defendant allegedly accumulated an outstanding account balance of over $125,000 in legal fees owed to Plaintiff, but refused to pay the fees. Based on these allegations, on 10 September 2012, Plaintiff instituted this action against Defendant for breach of contract.

Discovery Dispute

On 23 May 2014, the motion of Plaintiff for evidence sanctions and for monetary sanctions was argued and submitted in this Department.  The Court requested supplemental briefing to be filed on or before 30 May 2014 .  The matter was taken under submission.

On 29 May 2014, Judge Elfving granted the motion of Defendant to compel arbitration and to stay proceedings pending arbitration in front of the American Arbitration Association and the designated arbitrator, Paul A. Renne.

On 2 June 2014, counsel for Plaintiff issued a deposition subpoena to the custodian of records of Bank of America which are requested any and all records maintained by Bank of America on behalf of Giotti, Inc.

Between 6 June 2014 and 12 June 2014, counsel for Defendant attempted to meet and confer with counsel for Plaintiff to try to persuade Plaintiff to withdraw the subpoena because it was in violation of the stay order of Judge Elfving.  In an e-mail dated 12 June 2014, Plaintiff’s counsel indicated that Mr. Farooqui’s office did not represent Giotti, Inc. and

“[t]here was also no requirement for [them] to respond to all of these nonsense meet and confer to modify court orders simply because they want more time in court arguing about things that have been discussed. . . .”  (moving papers, exhibit H.)

In the meantime, in an order signed on 8 June 2014, and filed on 9 June 2014, this Court ordered the PMQ of Giotti, Inc. to appear for deposition within 20 days.  This Court believes it was unaware of the 2 June 2014 subpoena at the time of the signing and filing of this Order.

Analysis

Rule of Court 3.515(h) states that “unless otherwise specified in the order, a stay order suspends all proceedings in the action to which it applies.”

Defendant Shivji contends that the attempt to obtain bank records violates the stay order of Judge Elfving.  He also asks this Court to set aside its order of 9 June 2014.

In the nominal opposition papers, Plaintiff recites the history of his attempts to depose Giotti’s PMQ and on the issue of whether Defendant had waived his right to compel arbitration.

Plaintiff further attempts to lecture this Court on its power to enforce its own orders.[4]  Plaintiff should recall that this matter was set on an ex parte application on shortened notice to Plaintiff.  The intent of this Court was to us the prima facie case for a violation of the court’s order and set a further hearing to allow Plaintiff an opportunity to present a defense.

Plaintiff concludes by stating:

“Plaintiff’s counsel on that same day June 13, 2014 [sic] promptly followed this latest stay order from his Honor and not only cancelled [sic] the deposition that day but also contacted opposing counsel, requested what they had expanded, and sent them a check for that amount.”[5]  (Opposition papers, page 10, lines 8-11.)

The reply papers urge this Court to hold Plaintiff and his counsel in contempt of court but does not set forth any further amount of damages nor request any additional sanctions.

Conclusion and Order

Inasmuch as this matter now appears moot, this Court would have preferred that counsel contacted the Court to advise the same.

Good cause appearing, this Court VACATES its order of 9 June 2013.  The Order to Plaintiff to Show Cause in re contempt as to whether Plaintiff’s noticing of the deposition in question constituted an intentional violation of this Court’s lawful orders is DISSOLVED.