Subiono Wasito vs Santy Kazali
Case No: 18CV03322
Hearing Date: Wed Jun 05, 2019 9:30

Nature of Proceedings: Motion to Compel Answers at Deposition; Motion for Protective Order for Deposition

Tentative Ruling: 1. The court denies defendants Adi Kazali, Santy Kazali, and Harry Kazali’s motion for a protective order.

2. The court grants, in part, plaintiffs Subiono Wasito and Enny Soenjoto’s motion to compel responses to deposition questions. The court orders defendant Adi Kazali to answer, without objection, questions ##1, 2, 3, 5, 6, 7, and 9 in plaintiffs’ separate statement and any reasonable follow up questions. Plaintiffs may also ask questions regarding employment records that have been subsequently produced.

3. The court grants plaintiffs Subiono Wasito and Enny Soenjoto’s request for a monetary sanction. The court imposes a monetary sanction of $5,690, including attorney’s fees and the $90 filing fee, payable on or before June 17, 2019. Attorneys Paul Tashnizi and Edward Lowenschuss shall be jointly and severally liable for the monetary sanction of $5,690.

Background: This is a wage and hour action by plaintiffs Subiono Wasito and Enny Soenjoto, who were formerly employed at a motel establishment owned and operated by three named defendants, Adi Kazali, Santy Kazali, and Harry Kazali. (For convenience in addressing the pending motions, the court will refer to the Kazalis by the first names. The court means no disrespect.) According to defendants, Adi and Santy are beneficiaries of a trust that owns the motel. Harry, the son of the owners, operated the business of the Days Inn as General Manager. On plaintiffs’ W-2 forms, Adi and Santy are listed as employers.

Plaintiffs took defendant Adi’s deposition on March 4, 2019.

Motions: Plaintiffs move to compel responses to certain deposition questions to which defense counsel objected and instructed Adi not to answer. Plaintiffs also moved to compel Adi to produce documents relevant to plaintiffs’ employment. However, plaintiffs acknowledge that defendant Harry subsequently produced these documents (on March 14, April 8, and May 9, 2019). Plaintiffs now want to ask Adi questions about the documents. Defendants oppose the motion.

Defendants move for a protective order that the deposition of Adi not take place. Their grounds are: 1) plaintiffs seek the continuing deposition in bad faith and not for a legitimate discovery purpose; 2) Adi has already testified under oath that he has no knowledge of any issues regarding this case and has been retired for more than 25 years; 3) Adi is 84 years of age and in declining health, with a recently diagnosed heart condition that prevents him from participating in a further deposition; 4) Adi has already responded to eight separate sets of written discovery and sat for an oral deposition. Plaintiffs oppose the motion.

The court observes that Adi’s pleadings include exhibits without electronic bookmarks. “[E]lectronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” CRC 3.1110(f)(4). The failure to do so makes the court’s task in reviewing pleadings and evidence difficult.

The court has read the entire transcript of the March 4 deposition (hereafter “Tr.”), which commenced at 1:06 p.m. and concluded at 3:52 p.m. The court will address the motion for a protective order first.

A. Protective Order: “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.” CCP § 2025.420(a). “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” Fairmont Ins. Co. v. Superior Court, 22 Cal.4th 245, 255 (2000). A party does not meet this burden with mere statements of opinion or conclusions, which have no probative value. Carlson v. Superior Court of Los Angeles Cty., 56 Cal.2d 431, 440 (1961).

1. Age and Health: First, Adi’s age did not prevent him from testifying on March 4. At that time, his doctor, Michael Bordofsky, M.D., had stated he suffered from hearing loss that “may impair his ability to participate in a deposition.” At the deposition, Adi asked plaintiffs’ counsel to speak louder and counsel spoke in a tone that Adi could hear. [Tr. 9:13:23] Adi said he felt a little fatigued but he would try to participate in the deposition. [Tr. 11:21-12:2]

Now Adi attaches to his declaration a note dated May 13 from that same doctor stating: “Due to a serious heart condition he cannot attend deposition proceedings or any court proceedings.” There is no declaration from the doctor and he does not state what has changed since March 4. In his declaration, Adi says the condition is “recently diagnosed” but does not provide any detail as to how recently. Nor does he describe his symptoms. As discussed below, plaintiffs seek the continued deposition for responses to limited questions, which should not take long.

Adi has not sustained his burden with probative evidence of his inability to sit for a deposition.

2. Lack of Knowledge and Responses to Deposition Questions and Written Discovery: Adi contends that he should not have to sit for a continued deposition because he has already responded to eight sets of written discovery and he testified under oath than he has no knowledge of any issues regarding this case and has been retired far more than 25 years.

Responding to written discovery does not dispense with the requirement to attend a deposition. Depositions are opportunities to inquire into responses to written discovery and other issues. This is especially true where Adi testified that he had never seen his responses to requests for admission and he just signed verifications at his son’s instruction. [Tr. 81:15-84:1] His testimony was the same regarding responses to all interrogatories. [Tr. 85:25-88:7]

As to Adi’s responses to questions at his deposition on March 4, the court will address those in the discussion of the motion to compel.

Adi has not sustained his burden to demonstrate good cause for a protective order. The court denies defendants motion for a protective order.

B. Motion to Compel: Plaintiffs move to compel Adi to sit for a continued deposition and answer nine questions to which his counsel objected and instructed him not to respond. Plaintiffs also wish to question him about employment records that were provided subsequent to the deposition.

Adi’s current counsel, Edward Lowenschuss, says that plaintiffs’ counsel did not meet and confer with him prior to filing the motion. Plaintiff’s counsel did correspond with Paul P. Tashnizi, who was at the deposition. [Motion Exhibits G-K] When requested, plaintiffs’ counsel did copy Lowenschuss on correspondence and corresponded directly with him. [Motion Exhibits O-S] It can be difficult to sort out communications when two lawyers are handling the same matter. It does not appear that the substance of communications with the two lawyers were significantly different as to necessitate two meet and confer processes.

During the deposition, Adi’s counsel, Paul P. Tashnizi, interjected several objections, argued at length, told his client what to say (e.g., Tr. 17:3-6], asked Adi his own version of plaintiffs’ counsel’s question [e.g., Tr. 49:15-16], and objected to questions because he did not know why it was being asked [e.g., Tr. 19:21-22; 56:20-24]. Tashnizi set the tone of the deposition by making a meritless objection that the term “express yourself” is vague. [Tr. 12:18-22] It was very difficult to read the deposition transcript and get a sense of any testimony. Tashnizi spoke more than his client did.

That being said, the motion addresses only nine questions. The court notes that Adi’s current counsel has abandoned the objections Mr. Tashnizi made at the deposition, instead contending that Adi answered the questions in response to other questions. Therefore, the court will not address the merits of Tashnizi’s objections.

Question #1 (question numbers are from plaintiffs’ separate statement): “What was the hotel that you first worked at in Santa Barbara?” [Tr. 17:21-22] Tashnizi objected that the question is not relevant and instructed Adi not to answer. [Tr. 17:23-18:25] Adi’s current counsel contends Adi answered the question later in response to different questions. The gist of the argument is that Adi said he never worked in the United States and has been retired more than 25 years. [Opposition 4:7-8] But the question at issue followed Adi’s statement that he did motel work in Santa Barbara. [Tr. 17:7-17] At the very least, plaintiffs should be permitted to inquire into any inconsistent answers. Adi must answer this question.

Question #2: “Mr. Kazali, how many motels have you operated in Santa Barbara?” [Tr. 19:13-14] Tashnizi objected that this calls for confidential financial information and instructed him not to answer. [Tr. 19:15-17] Adi’s current counsel contends Adi answered the question by later stating he never worked in the United States. His answers are inconsistent and plaintiffs are entitled to explore that and learn about his business history. It is important to note that there is no dispute that Adi was one of plaintiffs’ employers. Adi must answer this question.

Question #3: “Do you own the property located at 116 Castillo Street in Santa Barbara, California?” [Tr. 20:6-8] Tashnizi objected that the question is vague and sought confidential financial information and told Adi he did not have to answer. [Tr. 20:9-17] Adi’s current counsel contends Adi answered the question by later stating he owned the Days Inn located at that address. That is not the same question. Adi must answer this question.

Question #4: “Why is Harry’s name not listed as the employer of Subiono Wasito or Enny Soenjoto?” [Tr. 49:5-6] Tashnizi objected that the question calls for speculation, that it is not relevant, and was asked and answered. He instructed Adi not to answer. [Tr. 49:7-51:6] Adi’s current counsel contends Adi answered the question by later stating Harry is not listed as the employer because he is not the owner of the Days Inn. Adi was asked why his name was on the W-2 form and not his son’s (Harry’s) name. Adi said he was the owner. [Tr. 51:12-17] The court disagrees with plaintiffs. This is essentially the same question and answers why Harry’s name is not listed as employer. Adi need not provide another answer to this question.

5. “Do you have any business relationships with Wyndham Hotels?” [Tr. 55:14-15] First Tashnizi objected regarding financial conditions of his clients and then suggested that plaintiffs’ counsel needed to “articulate or lay a foundation” why he was asking the question. He instructed Adi not to answer. [Tr. 55:16-57:11] Adi’s current counsel contends Adi answered the question by answering the previous question that he did not have a business relationship with Days Inn. Current counsel adds that Days Inn is owned by Wyndham. That is outside the record and does not answer the question of whether Adi has any relationship to Wyndham, which likely has other motel brands. Adi must answer this question.

6. “Mr. Kazali, what other hotel or motel enterprises do family members of yours have in Santa Barbara County?” [Tr. 71:15-17] Tashnizi said plaintiffs’ counsel was harassing the witness, objected based on financial confidentiality, and instructed Adi not to answer. [Tr. 71:18-72:10] Adi’s current counsel contends Adi answered the question by later stating that Adi and Santy own the Days Inn Santa Barbara and Quality Inn Santa Barbara. Santy is not the only family member and the later question was about hotels that Adi owns. Adi must answer this question.

7. “Mr. Kazali, do any of your family members have business dealings with the Quality Inn franchise?” [Tr. 72:13-14] Tashnizi objected based on financial confidentiality, suggested irrelevance, and instructed Adi not to answer. [Tr. 72:15-20] Adi’s current counsel contends Adi answered the question by later stating that Adi and Santy own the Quality Inn Santa Barbara and stating in interrogatories that Harry is the general manager of the Quality Inn Santa Barbara. Again, this does not answer the question asked. Adi must answer this question.

8. “Did you ask your son for employment records relating to the employment of Enny Soenjoto at the Days Inn?” [Tr. 77:5-6] This question is moot as plaintiffs acknowledge that they have received the documents. The court will permit plaintiffs to ask Adi questions regarding the documents.

9. “Mr. Kazali, are you the owner of any other motels in Santa Barbara?” [Tr. 94:10-11] Tashnizi objected “based on asking for financial conditions of the client” and “I need you to lay a foundation” and instructed Adi not to answer. [Tr. 94:12-18] Adi answered the question by later stating that he owned the Quality Inn. But that answer was nonresponsive. He was asked: “You don’t know if you’re an owner of any other motels besides the Quality Inn and Days Inn?” [Tr. 95:8-10] he answered: “Yeah. Quality Inn, yes.” [Tr. 95:12] That does not answer the “any other motels” question. Adi must answer this question.

For the foregoing reasons, the court grants, in part, plaintiffs’ motion to compel responses to deposition questions. The court orders defendant Adi Kazali to answer, without objection, questions ##1, 2, 3, 5, 6, 7, and 9 in plaintiffs’ separate statement and any reasonable follow up questions. Plaintiffs may also ask questions regarding employment records that have been subsequently produced. Defendant Adi Kazali must answer these questions, even if the answers are that he has no knowledge of them.

3. Monetary Sanction: Plaintiffs seek a monetary sanction against Adi and/or his counsel, Paul Tashnizi. The court shall impose a monetary sanction against any party or attorney who unsuccessfully opposes a motion to compel an answer or production, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.480(j). The court may impose a monetary sanction against anyone engaging in conduct that is a misuse of the discovery process. CCP § 2023.030(a).

Adi’s counsel engaged in the conduct that necessitated the motion. Primarily, this was Mr. Tashnizi at the deposition. Mr. Lowenschuss stepped in for purposes of opposing the motion. He did not undo the conduct at the deposition by agreeing to a short continued deposition. Rather he contended that the questions were answered when all but one were not.

Plaintiffs’ counsel states he spent 45 hours “in pursuit of this matter.” He says this includes seven emails and two phone calls in addition to the time spent on the motion. He says he spent another six hours on the reply. His hourly rate is $400.

A monetary sanction may include “reasonable expenses, including attorney’s fees.” CCP § 2023.030(a). The court finds the time spent on the motion excessive. The court imposes a monetary sanction of $5,690, including attorney’s fees and the $90 filing fee, payable on or before June 17, 2019. Attorneys Paul Tashnizi and Edward Lowenschuss shall be jointly and severally liable for the monetary sanction of $5,690.