T. Posada, et al. v. N. Shishido, et al. CASE NO. 113CV242619
DATE: 27 June 2014 TIME: 9:00AM LINE NUMBER: 11
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 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of plaintiffs George Posada and Tamrah Posada (“Plaintiffs”) for imposition of terminating and monetary sanctions was argued and submitted. Defendant Nazila Shishido (“Shishido”) filed a formal opposition to the motion.

Statement of Facts

This action arises out of the sale of Plaintiffs’ residential property. Plaintiffs allege that after receiving an unsolicited multimillion dollar offer for their home in Los Gatos, CA, they hired Shishido, a real estate agent at defendant Alain Pinel Realtors, Inc. (“Alain Pinel”), to market the property. On 2 May 2011, the parties signed an agency agreement, under which Shishido would receive a commission of two percent of the sale price of the property. A couple of weeks later, Shishido listed the property at $5.998 million. Despite significant interest in the property, no buyer made a firm offer at that price. Accordingly, on 1 July 2011, the property was relisted at a price of $5.375 million.

At or near this time, a hedge fund manager, John Pinkel (“Pinkel”) became interested in purchasing the property. He hired Ben Giulardi (“Giulardi”), another agent from Alain Pinel, to represent him in the subsequent negotiations. After a series of counter offers, Tamrah Posada suggested that Shishido and Giulardi take a smaller commission to facilitate the transaction. After Tamrah Posada made this proposal to Shishido, Shishido purportedly began screaming at her, threw a folder at her and stormed out of the house.

In their complaint, Plaintiffs assert causes of action against Shishido for negligence, breach of fiduciary duty, assault and battery, intentional infliction of emotional distress, fraud and misrepresentation.

Shishido filed a cross-complaint against Plaintiffs in which she alleges that George Posada engaged in derogatory hate speech against women and immigrants and, on one occasion, threatened her with a handgun. She further alleges that Tamrah Posada grabbed her and shook her after Shishido rejected her proposal to take a smaller commission to facilitate the sale of Plaintiffs’ home. In her cross-complaint, Shishido asserts causes of action against Plaintiffs for assault, battery, threats and intimidation, civil rights violations, sexual harassment and intentional infliction of emotional distress.

Discovery Dispute

On 10 October 2013, Plaintiffs noticed Shishido’s deposition for 18 November 2013. After discussion between counsel, the deposition was continued to 28 February 2014. Shishido gave a full day of testimony on 28 February 2014, and agreed to return for an additional day of testimony at a date mutually convenient to the parties.

Over the next month, counsel for both parties met and conferred concerning the second session of Shishido’s deposition. Shishido indicated that she would not appear for the second session of her deposition unless Plaintiffs stipulated to a protective order preventing the public dissemination of her testimony and precluding opposing counsel from making improper facial expressions while she responds to questions. Plaintiffs disputed that they engaged in any inappropriate conduct and indicated that no stipulation was necessary to prevent the public dissemination of Shishido’s deposition testimony.

Unable to resolve the dispute informally, on 1 April 2014, Plaintiffs filed a motion to compel Shishido’s continued deposition and the attendant production of documents, and a motion for a protective order.

On 29 April 2014, the Court granted Plaintiffs’ motion to compel Shishido’s continued deposition. As pertinent to the present motion, the Court ordered Shishido to appear and be deposed within 20 calendar days of the filing of the order, at a date and time mutually agreeable to the parties. (See Request for Judicial Notice, Ex. D, p. 7.)

On that same day, the parties agreed to attend a second mediation session to take place on 23 May 2014. In an attempt to limit the cost of the proceedings, the parties also stipulated to resume Shishido’s deposition on 2 June 2014 if the mediation proved unsuccessful. On 9 May 2014, the Court signed the stipulation.

Three days before the deposition was scheduled to take place, on 30 May 2014, Shishido’s counsel sent the following email to Plaintiffs’ counsel:

There is an issue as to who will be representing Ms. Shishido going forward. Our firm will not be. Ms. Shishido will not be appearing for her deposition on Monday. We understand that new counsel will be in touch with you next week. (See Rossi Decl., Ex. Z.)

Shishido did not appear for her deposition on 2 June 2014.

Three days later, on 5 June 2014, Plaintiffs filed an ex parte application for an order to shorten time to hear a motion for the imposition of terminating sanctions and monetary sanctions. The Court granted the application, and set the motion for hearing on 27 June 2014.

Plaintiffs filed their motion for terminating and monetary sanctions on 5 June 2014. On 13 June 2014, Shishido filed her opposition. Plaintiffs filed their reply brief on 20 June 2014.

Discussion

Plaintiffs ask the Court to impose terminating and monetary sanctions against Shishido for her failure to comply with the Court’s 9 May 2014 order compelling her appearance at deposition on 2 June 2014.

A. Request for Judicial Notice

As an initial matter, Plaintiffs request that the Court take judicial notice of their complaint, Shishido’s cross-complaint, a substitution of attorney filed on 4 December 2013, the Court’s 29 April 2014 order, the 9 May 2014 stipulation, and the Court’s docket in this particular case. A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].) These documents are court records and are relevant to the issues involved in this motion. Accordingly, Plaintiffs’ request for judicial notice is GRANTED.

B. Motion for Terminating Sanctions

Plaintiffs originally moved for an order imposing terminating sanctions. In their reply brief, Plaintiffs withdrew this request. As this request is no longer at issue, the motion for an order imposing terminating sanctions is MOOT.

C. Motion for Monetary Sanctions

Plaintiffs move for monetary sanctions against Shishido in the amount of $21,917 for her failure to comply with the Court’s order. This figure represents attorney’s fees incurred in preparing for previously scheduled depositions on 18 November 2013 and 3 February 2014, preparing for the 2 June 2014 deposition, drafting a motion to compel Shishido’s deposition that was later withdrawn, and drafting this motion.

Plaintiffs seek relief under Code of Civil Procedure section 2025.450, subdivision (h), which provides that, where a party fails to obey an order compelling attendance at a deposition, “the court may make those orders that are just,” including non-monetary sanctions. That section further provides that, “[i]n lieu of, or in addition to, this sanction, the court may impose a monetary sanction . . . against that deponent. . . .” (Code Civ. Proc., § 2025.450, subd. (h).)

As an initial matter, there is no dispute that Shishido did not appear for her deposition in violation of this Court’s 9 May 2014 order. Thus, the only question outstanding is whether an order requiring Shishido to pay monetary sanctions is just, and if so, whether the amount requested by Plaintiffs is appropriate under the circumstances.

Plaintiffs argue that monetary sanctions are warranted because their counsel have expended substantial amounts of time since November 2013 preparing to depose Shishido, including wasting two whole days preparing for the 2 June 2014 deposition. In response, Shishido contends in connection with here nonappearance for the 2 June 2014 deposition that she acted reasonably once relations between her and her former counsel broke down. First, she promptly informed opposing counsel that she would be unable to attend the deposition, and new counsel would be in touch with them next week, presumably to reschedule the deposition. (See Rossi Decl., Ex. Z.)

Second, she promptly hired her new counsel, Dennis Ward, a few days after her deposition was originally scheduled to take place. (See Shishido Decl., p. 1: 25-26; Ward Decl., p. 1: 25-26.) With new counsel now in place, she declares that she is willing and able to appear for her deposition at the next mutually convenient date. (See Shishido Decl., p. 2: 12-15 [“It has always been my desire to get my deposition completed and I truly want to get it over with altogether. I am willing to give my deposition at the next mutually convenient date…”].)

Here, the Court finds that an award of monetary sanctions is unjust. As indicated above, once the relationship between her and her counsel broke done, Shishido informed Plaintiffs that her deposition needed to be rescheduled pending the substitution of new counsel, promptly hired new counsel and made herself available for deposition at the first mutually convenient date. Moreover, there is no indication that the time Plaintiffs’ counsel spent preparing for the 2 June 2014 deposition will be wasted. Presumably, this preparation time will assist counsel once Shishido’s deposition resumes. Furthermore, Plaintiffs are seeking to recoup expenses not only for the preparation for the 2 June 2014 deposition, but also for the preparation for previously scheduled depositions on 18 November 2013 and 3 February 2014 and the drafting of a motion to compel Shishido’s deposition that was later withdrawn. Nevertheless, they have not established a nexus between Shishido’s nonappearance at the 2 June 2014 deposition and the incurring of these expenses. Finally, some of the expenses sought are for the drafting of this motion, a portion of which has been withdrawn. Based on the facts presented, had Plaintiffs contacted Shishido rather than precipitately filing this motion, Shishido likely would have promptly appeared for the second session of her deposition without the need for court intervention.

Accordingly, Plaintiff’s motion for monetary sanctions is DENIED.

Conclusion and Order

Plaintiffs’ request for judicial notice is GRANTED.

Plaintiffs’ motion for terminating sanctions is MOOT.

Plaintiffs’ motion for monetary sanctions is DENIED.