Laura Dewey v. Tarek Suleimanagich
Case No: 17CV03571
Hearing Date: Tue Sep 24, 2019 9:30

Nature of Proceedings: Motion Protective Order

Plaintiff’s motion for protective order

ATTORNEYS:

Plaintiff is in pro per

Gary L. Zerman for defendant

RULING: The motion is granted in part, as outlined below. Defendant’s request for sanctions is denied.

Background:

Filed on August 14, 2017, this is a collections action, in which plaintiff seeks to collect from defendant $25,074.50 for service she performed while representing defendant for a period of time in a family law proceeding. The complaint alleged causes of action for breach of written contract and common counts for account stated and for services rendered. After Suleimanagich’s demurrer was ordered off calendar for failure to comply with Code of Civil Procedure section 430.41, he answered the complaint in pro per on August 29, 2018. In a July 1, 2019 minute order, the Court allowed plaintiff leave to amend her complaint [Note: The court file does not contain a Motion for Leave to Amend, although it contains an opposition and a reply related to such a motion] in order to attach a missing exhibit, noting that the answer shall be filed per code. The First Amended Complaint was filed on July 5, 2019.

The case has been related to Santa Barbara Superior Court Case No. 19CV01842, entitled Tarek Suleimanagich vs. Laura Grace Dewey, filed April 8, 2019. In that action, which Suleimanagich is pursuing in pro per, he alleged causes of action for professional negligence, unfair business practices, and fraud, arising from that same family law representation. That action alleged that Dewey had committed malpractice in, among other things, discussing privileged and confidential communications with recently deceased Woodland Hills attorney Marcia Kraft, and falsely claimed in verified discovery responses (apparently in the current collections action) that Kraft represented Suleimanagich and was his attorney of record at some point in his family law case. He alleged that he never authorized Dewey to discuss his case with Kraft or any attorneys with her firm. The unfair business practices cause of action was based upon Dewey’s alleged conduct in submitting false and fraudulent information in claiming that Marcia Kraft had been an attorney of record in his family law case, and in discussing his case with attorney Kraft. Similarly, the fraud cause of action was based upon Dewey’s verified discovery responses (in this collections action) stating that the Law Office of Marcia Kraft had taken over his family law case, which Dewey allegedly knew were false.

Dewey’s demurrer to the professional negligence cause of action was sustained on June 4, 2019, on the ground that it was barred on its face by the statute of limitations set forth in California Code of Civil Procedure section 340.6. The Court allowed Suleimanagich leave to file an amended complaint on or before June 25, 2019, to allege, if he could truthfully do so, specific facts to bring the action within any of the tolling provisions set forth in Section 340.6. He did not do so, and Dewey answered the complaint on August 22, 2019. Consequently, that action now asserts only causes of action for unfair business practices and fraud, and relates solely to Dewey’s conduct in discussing Suleimanagich’s case with attorney Kraft, and in making representations that Kraft had taken over his case.

Suleimanagich has also filed an action against Cherie Brenner (Case No. 18CV02147), which is also based upon Ms. Brenner’s representation of him for a period of time during his family law proceeding, and asserts very similar claims to the time-barred professional negligence claims which Suleimanagich had asserted in this action. Suleimanagich is in pro per in that action.

Suleimanagich filed yet another action against the opposing attorney in the family law litigation, Marlea Jarette (Case No. 18CV05920), which was dismissed without prejudice.

As a defendant in the current collections action, Suleimanagich noticed plaintiff Dewey’s deposition, seeking the production of documents at the deposition. While Dewey agreed to appear for a deposition, she sought an agreement that she not be asked any questions regarding relationships with other current or past clients other than Mr. Suleimanagich, since they would include privileged communications and are not relevant to the billing of services for Mr. Suleimanagich. She further sought agreement that she need not produce documents set forth in Request Nos. 9 and 19, relating to her professional and financial arrangements with attorney Kraft.

Specifically, Document Request No. 9 sought the following:

Any & all writings regarding your arrangement, work or employment for or with attorney Marcia Kraft (and/or the Kraft Law Office) during the year of 2013, as related in paragraph 3, page 3, lines 11-27, of your June 12, 2019 declaration, attached to Plaintiff Dewey’s Notice of Motion and Motion to Amend Complaint dated June 12, 2019, filed in this case. (This includes, but is not limited to any & all employment contract or arrangement, IRS W-2 forms, IRS 1099 forms, checks, pay stubs, business cards, health insurance cards/papers, or any other writing indicating your worked for or with Marica [sic] L. Kraft and/or the Kraft Law Office.) Paragraph 3 is recapped verbatim here:

3. The original agreement had been lost when I began working for Marcia Kraft, an attorney in the Los Angeles area, within a few weeks of being retained by Mr. Suleimanagich. I spoke with Mr. Suleimanagich about my arrangement with Ms. Kraft, and of her willingness to have the case transferred to her office. He came into Ms. Kraft’s office, met with both of us, then he signed a new retainer agreement with her and a Substitution of Attorneys form. Ms. Kraft’s staff either lost or destroyed my retainer agreement, although I did not notice this after I left her firm after a few short weeks. I later asked successor counsel for the original retainer agreement, and this is when I discovered that my retainer agreement was not in the file.

Document Request No. 19 sought the following:

Regarding the above para. 3 from your declaration, concerning your statement “. . . although I did not notice this after I left her firm after a few short week.” — any & all writings that discussed or evidence your leaving the firm of Marcia Kraft.

When defense counsel refused the testimony and production limitations sought by plaintiff, and after meet and confer efforts failed, Dewey filed the current motion for protective order.

Motion:

Plaintiff Dewey has moved for a protective order, seeking an order that she need not produce the documents requested in Demand Nos. 9 and 19, and that defendant be prohibited from questioning her about her relationships with other current or former clients, and her financial dealings with other lawyers. The matters are not relevant to the fee dispute in this action. She asserts she is not seeking compensation for services she rendered to defendant during the brief period she worked for attorney Kraft. Her financial agreements with Kraft are not relevant, and relate to compensation for work for other clients, information that would be protected by attorney-client privilege and plaintiff’s ethical duty to safeguard confidentiality. She asserts that defendant had previously denied signing a retainer agreement with Ms. Kraft’s office, but she located it and forwarded it to him via counsel with a request for admission. She further contends that defendant has made accusations and innuendos about bad relationships Dewey has purportedly had with other clients, threatening her that he will reveal the details, in an attempt to embarrass her and convince her to drop the lawsuit. Her relationships with other clients is not relevant to the issue of whether defendant owes her fees, and protective orders are appropriate to preclude such harassment.

Defendant opposes, asserting that Dewey’s representation of defendant was brief, that she failed to protect his interests, that she prejudiced his case, that she was paid more than she deserved, and that she is consequently owed nothing in this action. Defendant asserts that because Dewey did not serve a written objection to the Notice of Deposition, specifying an error or irregularity, she is prohibited from objecting to the deposition, and her motion must be denied. He contends that the motion does not present facts demonstrating justification for the motion, which does not cite a single case. He asserts, without explanation, that the protective order is an unreasonable prior restraint on defendant. He asserts further that plaintiff put inquiry about her purported employment with Marcia Kraft in issue in her April 16, 2019 declaration, attached to her motion to amend. Ms. Kraft’s daughter’s e-mail (that she does not have any records of Dewey being employed by her mother, and does not have the retainer agreement) is inconsistent with the representations Dewey made. In a footnote, defendant provides examples of questions that he would impermissibly be precluded from asking, should the protective order be granted, as follows:

1) Ms. Dewey did the law office, of Marcia Kraft ever prepare a bill for services to Tarek? 2) Ms. Dewey did you bring any other of your clients to Ms. Kraft’s law office? 3) If so, Did those clients sign up with Ms. Kraft’s office? 4) Did Ms. Kraft decline any of those clients of yours? 5) Have any of your clients ever complained to you about the attorney’s fees you charged them? 6) You allege that Tarek signed a substitution of attorney form with Marcia Kraft’s law office. Where is that document? 7) Was that substitution of attorney form filed with the court? 8) If so, Who filed it? 9) If so, on what date? 10) If it was not filed, Why? 11) You allege that the staff at Marcia Kraft’s law office lost or destroyed your purported contract with Tarek, What are the full names of these staff members? 13) How was that purported contract lost or destroyed? 14) Have any of your clients ever contacted the Cal State Bar about the fees you charged them? 15) Have any of your clients ever filed a Bar complaint about the fees you charged them? 16) Have any of your clients ever claimed your attorney’s fees were excessive? 17) Have any of your clients ever refused to pay your attorney’s fees? 18) Have any of your client [sic] ever sued you over your attorney’s fees? 19) Have any of your clients ever reported you to the Bar over your fee agreement not informing that you did not have legal malpractice insurance? 20) Has any client of yours ever accused you of taking settlement proceeds or money from them for your fees, that the client claimed you were not entitled to? …

Finally, the opposition seeks sanctions of $2,475.00, for the costs incurred in attempting to take the deposition and in opposing the motion.

In her reply, Dewey asserts that the opposition failed to respond to the essence of the motion. Defendant clearly intends to use the deposition as a fishing expedition to bring in irrelevant issues in an attempt to discredit her, as his list of proposed questions demonstrates. In order to avoid paying his bill, defendant seeks private information about the business relationship between plaintiff and Marcia Kraft, but this case does not involve any billings from Ms. Kraft, and there is no justification to invade the relationship. Defendant acknowledged he becomes emotional about this case, and he has turned it into a personal vendetta against plaintiff. Plaintiff asserts that she properly objected to the deposition notice, and the statute referenced by defendant relates to errors in noticing, not waiver of ability to seek a protective order. Defense counsel’s declaration is replete with information not within counsel’s personal knowledge, as well as legal argument. With respect to the declaration he attaches, in which Dewey purportedly acknowledged prejudicing defendant’s family law case, she states that she either did not sign the document (having no memory of doing so), or that it was provided to her at a time when she was heavily sedated while hospitalized and awaiting surgery. It states that it was signed on July 4, 2013, but she was hospitalized from July 3 and scheduled for surgery on July 9 for a hemorrhaged pituitary gland tumor, and was kept heavily sedated in the interim. Suleimanagich had presented her with a similar declaration containing similar statements prior to her entering the hospital, but she had refused to sign it. The declaration was responsive to production demand requests, but was not produced by defendant. The contents of the declaration are inaccurate, and she would not have signed it had she been lucid enough to review it before signing. Dewey asserts that both defendant and his counsel have left her insulting voicemails, and sent rude e-mails. She has had two conversations with attorney Zerman which he later “documented” in writing, in a manner that was accusatory and factually incorrect. She expects the same at her deposition.

ANALYSIS:

The motion is granted in part. The deposition may go forward, to be conducted in a professional manner. Plaintiff need not produced the documents sought by Demand Nos. 9 or 19, or answer questions about those issues. Defendant’s request for sanctions is denied.

A party may obtain discovery by taking an oral deposition, including of another party to the action. (Code Civ. Proc., § 2025.010.) The party seeking the deposition must give notice of the deposition, in writing, in which specified information must be set forth. (Code Civ. Proc., § 2025.220.) If the deposition notice does not comply with these provisions, the party upon whom it is served waives any error or irregularity unless the party promptly serves a written objection specifying the error or irregularity, at least 3 calendar days prior to the date upon which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) Before, during, or after a deposition, any party, deponent, or other affected person or organization, may move for a protective order. (Code Civ. Proc., § 2025.420, subd. (a).) The court may, for good cause shown, make any order that justice requires to protect any party (etc.) from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. That order may include, but is not limited to, orders that certain matters not be inquired into, that the scope of the examination be limited to certain matters, and/or that all or certain of the writings designated in the deposition notice not be produced. (Code Civ. Proc., § 2025.420, subd. (b)(8), (9), and (10).)

Defendant noticed plaintiff’s deposition, and sought production of documents within the Notice of Deposition. Plaintiff sought an agreement that certain of the documents need not be produced, and that certain areas of inquiry not be permitted, in the deposition to be taken. Defendant refused, after which plaintiff filed the current motion for protective order.

Defendant has opposed, contending that plaintiff had waived her right to a protective order by failing to timely serve an objection. Based upon the authorities cited above, that contention is patently wrong. Plaintiff is not making any contention that there was an error or irregularity in the notice of deposition, and her request for protective order is based upon the substance of the areas of inquiry which the Notice and its included demand for production indicated would be raised at the deposition. A protective order is the proper method to bring such issues before the court.

This action and the fraud/unfair business practices action have not been consolidated. The issues related to attorney Kraft that are the subject of plaintiff’s motion for protective order appear to this Court to be largely related to that action (albeit only somewhat peripherally, even in that action)—which Mr. Suleimanagich is pursuing in pro per—and not to this action, in which Mr. Suleimanagich is represented by counsel. Indeed, the sole remaining causes of action in that action purportedly relate to Mr. Suleimanagich’s denial that he had ever been represented by the Law Offices of Marcia Kraft, and his contentions that he never authorized plaintiff Dewey to discuss his case with attorney Kraft or any attorneys with her firm.

The current action is a collections action, in which Dewey seeks to recover attorneys’ fees incurred in the course of her representation of defendant Suleimanagich in his family law matter, but which were never paid. She contends that none of the fees for which she seeks compensation were incurred during the brief period she was affiliated with attorney Kraft. While that issue may certainly be the subject of deposition questions, the nature of her financial arrangements with attorney Kraft (No. 9 seeks any & all employment contracts or arrangements, IRS W-2 forms, IRS 1099 forms, checks, pay stubs, business cards, health insurance cards/papers, or any other writings regarding her work with Kraft), or the writings that discuss or evidence her reasons for leaving that firm (No. 19) are not proper subjects of discovery in this action. Production of this information will not be required, and inquiry into their subject matter will not be permitted.

While plaintiff contends that her relationships with other clients are irrelevant to the issue of whether defendant owes her fees, the Court finds them relevant particularly to the extent they are fee-related, and will permit defendant to inquire whether any other clients have ever complained about excessive fees, have refused to pay attorneys’ fees, have sued over attorneys’ fees, or made complaints to the State Bar about plaintiff’s fees. Because obtaining information beyond a general articulation of the subject matter of any such representations could potentially invade the attorney-client privilege and the privacy rights of any such clients, if indeed there are any, the Court will not require plaintiff to provide further information at the deposition. Rather, to the extent any such information exists, defendant may bring a post-deposition motion to compel to bring the privacy and privilege issues before the Court for resolution.

Clearly, defendant may ask questions related to the work plaintiff performed for defendant, for which she charged such fees. He may ask whether Dewey performed any work on his behalf while she was affiliated with Ms. Kraft, and whether any billings were prepared by the Kraft office. Inquiry into the underlying nature of her financial and professional relationship with Ms. Kraft will not be permitted, even in oral questioning, however, absent some showing in a future motion of direct relevance to the issues in this action.