MELINDA T. AHDOOT VS GARRI CHERNYAVSKIY

Tentative Rulings

Case Number: 19STLC09649    Hearing Date: September 24, 2020    Dept: 25

HEARING DATE: Thu., September 24, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Adhoot v. Chernyavskiy, et al. COMPL. FILED: 10-18-19

CASE NUMBER: 19STLC09649 DISC. C/O: 03-17-21

PROCEEDINGS: (1) CROSS-DEFENDANTS’ MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

MOVING PARTY: Cross-Defendants Jeff Katofsky, Jeff Katofsky, a Professional Law Corp., and Michael Leff

RESP. PARTY: Defendants/Cross-Complainants Garri Chernyavskiy and Polina Chernyavskiy

SPECIAL MOTION TO STRIKE

(CCP § 425.16)

PROCEEDINGS: (2) MOTION TO COMPEL DEPOSITION OF DEFENDANTS, GARRI AND POLINA CHERNYAVSKIY AND REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Melinda Adhoot

RESP. PARTY: Defendants/Cross-Complaints Garri Chernyavskiy and Polina Chernyavskiy

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

(1) Cross-Defendants’ Motion to Strike is DENIED. Defendants/Cross-Complainants’ request for attorney’s fees is also DENIED.

(2) Plaintiff’s Motion to Compel Deposition of Defendants/Cross-Complainants is DENIED. Plaintiff’s request for sanctions is also DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Special Motion to Strike

OPPOSITION: Filed on July 28, 2020 [ ] Late [ ] None

REPLY: Filed on August 12, 2020 [X] Late [ ] None

Motions to Compel

OPPOSITION: Filed on September 10, 2020 [ ] Late [ ] None

REPLY: Filed on September 15, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On October 18, 2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of contract and common counts against Defendants Garri Chernyavskiy and Polina Chernyavskiy (collectively, “Defendants” or “Cross-Complainants.”) On January 31, 2020, Defendants filed an Answer and a Cross-Complaint for malicious prosecution against Jeff Katofsky, Jeff Katofsky, a Professional Law Corporation, and Michael Leff (collectively, “Cross-Defendants”).

On April 9, 2020, Cross-Defendants filed the instant Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section 425.16 (the “Motion to Strike”). Cross-Complainants filed an Opposition on July 28, 2020.

On April 27, 2020, Plaintiff filed the instant Motion to Compel Depositions of Defendants Garri Chernyavskiy and Polina Chernyavskiy (the “Motion to Compel”). Defendants filed an Opposition on September 10, 2020 and Plaintiff filed a Reply brief on September 15, 2020.

A hearing on the Motion to Strike took place on August 12, 2020. The Court continued the hearing to allow Cross-Defendants’ counsel to appear, respond to, and address the Motion to Strike because he was unable to connect to LACourtConnect. (8/12/20 Minute Order.) Later that day, Cross-Defendants filed a Reply brief. Defendants/Cross-Complainants filed a Request for Judicial Notice in Support of their Opposition on September 1, 2020.

1. Request for Judicial Notice

Defendants/Cross-Complainants request that the Court take judicial notice of Changsha Metro Group Co., Ltd. v. Xufeng, et al., (2020) 49 Cal.App.5th 173. (9/1/20 Request for Judicial Notice.) This request was served on Plaintiff and Cross-Defendants on September 1, 2020 via electronic service. (Id., Proof of Service.)

Defendants/Cross-Complainant’s request is GRANTED. (Evid. Code, § 452, subd. (a).)

1. Special Motion to Strike

A. Defendant Jeff Katofsky, APC

In their Opposition, Cross-Complainants present evidence that Defendant Jeff Katofsky, A Professional Corporation is listed as “FTB SUSPENDED” on the California Secretary of State website as of July 28, 2020. (Oppo., Campbell Decl., ¶ 2, Exh. A.) “A corporation that has had its powers suspended ‘lacks legal capacity or prosecute or defend a civil action during its suspension.’ [Citations.]” (Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 861-62.)

As Defendant Jeff Katofsky, A Professional Corporation, is suspended, it cannot participate in this action until its status has been restored.

B. Anti-SLAPP Motions

In limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) In regard to special motions to strike, the Court of Appeal held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

For this reason, Cross-Defendants’ Motion is DENIED.

C. Attorney’s Fees

Defendants/Cross-Complainants argue they are entitled to attorney’s fees as the Motion is completely devoid of merit. (Oppo., p. 5:8-11.)

Code of Civil Procedure section 425.16, subdivision (c) provides:

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to section 128.5.”

Under this section, “an award of attorney fees to a defendant prevailing on a special motion to strike is mandatory; a prevailing plaintiff is entitled to fees only upon proof that the defendant’s motion was frivolous or solely intended to cause unnecessary delay.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1340-41.) (Italics added.) Code of Civil Procedure section 128.5 defines “frivolous” as “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).

Here, the Motion is denied because it is not permitted in limited jurisdiction court, not because the Court finds it to be frivolous. Indeed, “malicious prosecution causes of action fall within the purview of the Anti-SLAPP statute.” (Alston v. Dowe (2020) 52 Cal.App.5th 706, 721.) Furthermore, there is no evidence Cross-Defendants filed this Motion to Strike for the sole purpose of harassing Defendants/Cross-Complainants or causing unnecessary delay.

Accordingly, Cross-Complainants’ request for attorney’s fees is DENIED.

1. Motions to Compel Depositions

A. Legal Standard

Code of Civil Procedure section 2025.450, section (a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

Plaintiff moves the Court to compel Defendants/Cross-Complainants’ depositions. Plaintiff submits evidence she served Defendants/Cross-Complainants with a Notice of Taking Deposition on February 12, 2020. (Mot. to Compel, Leff Decl., ¶ 4, Exh. A.) The depositions were scheduled for March 16, 2020 and March 18, 2020 at Plaintiff’s counsel’s office. (Id.) Following Governor Newsom’s stay at home orders due to the COVID-19 pandemic, Defendants/Cross-Complainants’ depositions were noticed for April 23 and April 24, 2020 at Plaintiff’s counsel’s office. (Id. at ¶ 5, Exh. B.) Plaintiff served Defendants/Cross-Complainants with the amended notice of deposition on March 18, 2020. (Id.) On April 14, 2020, Defendants/Cross-Complainants served an objection to the depositions on the ground that their pending anti-SLAPP Motion stayed all discovery in the entire action. (Id. at ¶ 6, Exh. C.) Following receipt of the objection, Plaintiff’s counsel sent a meet and confer letter to Defendants/Cross-Complainants’ counsel on April 21, 2020. (Id. at ¶ 7, Exh. D.) Defendants/Cross-Complainants’ counsel responded to Plaintiff’s meet and confer letter on April 22, 2020 and reiterated her position that the pending anti-SLAPP motion stayed discovery in the entire action, not just in the malicious prosecution cross-action. (Id. at ¶ 8, Exh. E.) She further stated that Defendants/Cross-Complainants were unwilling to personally appear for deposition at Plaintiff’s counsel’s office during a pandemic and that emergency rule 12 did not require them to do so. (Id.)

Plaintiff’s evidence demonstrates she has satisfied the meet and confer requirements of Section 2025.450, subdivision (b)(2).

Code of Civil Procedure section 425.16, subdivision (g) provides that “[a]ll discovery proceedings in the action shall be stayed upon filing a notice of motion made pursuant to this section. The stay of proceedings shall remain in effect until notice of entry of the order ruling on the Motion.” (Italics added.) As explained in Section III of this analysis, the anti-SLAPP Motion was filed against Defendants/Cross-Complainants’ Cross-Complaint. The parties disagree over whether the stay applies to just the cross-action or whether it applies to the action in its entirety, requiring a stay on discovery proceedings for Plaintiff’s breach of contract and common count causes of action even though those claims are not the subject of the anti-SLAPP Motion.

Neither party cites any case law on point. Nor is the Court aware of any case law dealing with this precise issue. As Plaintiff notes, the language of Section 425.15, subdivision (g) “has been uniformly interpreted to provide a general stay on discovery in accordance with the statute’s overall purposes. [Citation.]” (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125.) (Italics added.) In enacting Section 425.16, the legislature sought “early resolution to minimize the potential costs of protracted litigation [and] it also sought to protect defendants from the burden of traditional discovery pending resolution of the motion.” (Mattel, Inc. v. Luce, Forward, Hamilton, & Scripps (2002) 99 Cal.App.4th 1179, 1190.) Plaintiff also notes that Code of Civil Procedure section 22 defines an “action” as an “ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

Based on the above, the Court is persuaded by Plaintiff’s argument that the discovery stay applies only to the cross-action for malicious prosecution and not to the entirety of proceedings under this case number, 19STLC09649.

However, the Court notes that both deposition notices stated the deposition would take place in Plaintiff’s counsel’s office. (Mot. to Compel, Leff Decl., ¶¶ 4, 5, Exhs. A, B.) Defendants/Cross-Complainants’ attorney raised the issue that Defendants/Cross-Complainants were unwilling to personally attend the deposition in Plaintiff’s counsel’s office due to the pandemic in her meet and confer correspondence. (Mot. to Compel, Leff Decl., ¶ 8, Exh. E.) Emergency Rule 11 of the California Rules of Court provides that “[n]otwithstanding any other law, including Code of Civil Procedure section 2025.310(a) and (b), and rule 3.1010(c) and (d), a party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of deposition.”

Because Defendants/Cross-Complainants raised concerns regarding personally appearing for deposition due to the COVID-19 pandemic and because Plaintiff did not offer a remote deposition alternative, the Motion to Compel and request for sanctions is DENIED.

1. Conclusion & Order

For the foregoing reasons:

(1) Cross-Defendants’ Motion to Strike is DENIED. Defendants/Cross-Complainants’ request for attorney’s fees is also DENIED.

(2) Plaintiff’s Motion to Compel Deposition of Defendants/Cross-Complainants is DENIED. Plaintiff’s request for sanctions is also DENIED.

Moving parties are ordered to give notice.

Case Number: 19STLC09649    Hearing Date: August 12, 2020    Dept: 25

HEARING DATE:   Wed., August 12, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Adhoot v. Chernyavskiy COMPL. FILED: 10-18-19

CASE NUMBER: 19STLC09649 DISC. C/O: 03-17-21

PROCEEDINGS:     MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16

MOVING PARTY:   Cross-Defendants Jeff Katofsky, Jeff Katofsky, a Professional Law Corp., and Michael Leff

RESP. PARTY: Cross-Complainants Garri Chernyavskiy and Polina Chernyavskiy  

SPECIAL MOTION TO STRIKE

(CCP § 425.16)

TENTATIVE RULING:

Cross-Defendants Jeff Katofsky, Jeff Katofsky, APLC, and Michael Leff’s Motion to Strike is DENIED. Cross-Complainants’ request for attorney’s fees is also DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 28, 2020 [   ] Late [   ] None

REPLY: None filed as of August 10, 2020 [   ] Late [X] None

ANALYSIS:

1. Background

On October 18, 2019, Plaintiff Melinda Adhoot (“Plaintiff”) filed an action for breach of contract and common counts against Defendants Garri Chernyavskiy and Polina Chernyavskiy (collectively, “Defendants” or “Cross-Complainants.”) On January 31, 2020, Defendants filed an Answer and a Cross-Complaint for malicious prosecution against Jeff Katofsky, Jeff Katofsky, a Professional Law Corporation, and Michael Leff (collectively, “Cross-Defendants”).

On April 9, 2020, Cross-Defendants filed the instant Motion to Strike Cross-Complaint pursuant to Code of Civil Procedure section 425.16 (the “Motion”). Cross-Complainants filed an Opposition on July 28, 2020. To date, no reply brief has been filed.

1. Legal Standard & Discussion

In limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) The Court of Appeal held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

For this reason, Cross-Defendants’ Motion is DENIED.

Cross-Complainants argue they are entitled to attorney’s fees as the Motion is completely devoid of merit. (Oppo., p. 5:8-11.)

Code of Civil Procedure section 425.16, subdivision (c) provides:

“Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to section 128.5.”

Under this section, “an award of attorney fees to a defendant prevailing on a special motion to strike is mandatory; a prevailing plaintiff is entitled to fees only upon proof that the defendant’s motion was frivolous or solely intended to cause unnecessary delay.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1340-41.)

Here, the Motion was denied because it is not permitted in limited jurisdiction court, not because the Court finds it to be frivolous or intended to cause unnecessary delay. Furthermore, Cross-Complainants’ request for attorney’s fees is procedurally improper as it must be made by a separate motion. (Code Civ. Proc., §§ 425.16, subd. (c); 128.5, subd. (f)(1)(A).) Thus, Cross-Complainants’ request for attorney’s fees is DENIED.  

1. Conclusion & Order

For the foregoing reasons, Cross-Defendants Jeff Katofsky, Jeff Katofsky, APLC, and Michael Leff’s Motion to Strike is DENIED. Cross-Complainants’ request for attorney’s fees is also DENIED.

Moving parties are ordered to give notice.