This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 16:48:08 (UTC).

ELLY-JOY SHALOME KAUSHANSKY VS STONECROFT ATTORNEY APLC ET A

Case Summary

On 06/24/2016 ELLY-JOY SHALOME KAUSHANSKY filed a Contract - Professional Negligence lawsuit against STONECROFT ATTORNEY APLC ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4944

  • Filing Date:

    06/24/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

KAUSHANSKY ELLY-JOY SHALOME

Defendants and Respondents

DOES 1 THROUGH 100

AKHIDENOR MICHAEL

STONECROFT ATTORNEYS A PROFESSIONAL LAW

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MEDVEI LAW GROUP APC

MEDVEI SEBASTIAN M.

Defendant Attorney

AKHIDENOR MICHAEL ONUWABHAGBE

 

Court Documents

STATUS CONFERENCE STATEMENT / STATEMENT RE OSC RE DISMISSAL OF PLAINTIFF ELLY-JOY SHALOME KAUSHANSKY; DECLARATION OF SEBASTIAN M. MEDVEI

2/21/2018: STATUS CONFERENCE STATEMENT / STATEMENT RE OSC RE DISMISSAL OF PLAINTIFF ELLY-JOY SHALOME KAUSHANSKY; DECLARATION OF SEBASTIAN M. MEDVEI

Minute Order

2/27/2018: Minute Order

NOTICE OF MOTION AND MOTION OF PLAINTIFF ELLY-JOY SHALOME KAUSHANSKY FOR ORDER REQUIRING DEFENDANTS TO ADVANCE COSTS OF ARBITRATION OR WAIVE RIGHT TO ARBITRATION; ETC.

6/12/2018: NOTICE OF MOTION AND MOTION OF PLAINTIFF ELLY-JOY SHALOME KAUSHANSKY FOR ORDER REQUIRING DEFENDANTS TO ADVANCE COSTS OF ARBITRATION OR WAIVE RIGHT TO ARBITRATION; ETC.

Minute Order

7/3/2018: Minute Order

Request for Judicial Notice

11/19/2018: Request for Judicial Notice

Opposition

11/19/2018: Opposition

Minute Order

11/27/2018: Minute Order

Order on Court Fee Waiver (Superior Court)

2/27/2019: Order on Court Fee Waiver (Superior Court)

COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, AND EQUITABLE RELIEF: 1. PROFESSIONAL NEGLIGENCE; ETC

6/24/2016: COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, AND EQUITABLE RELIEF: 1. PROFESSIONAL NEGLIGENCE; ETC

Unknown

6/24/2016: Unknown

SUMMONS

7/6/2016: SUMMONS

SUMMONS

7/15/2016: SUMMONS

NOTICE OF MOTION AND MOTION FOR AN ORDER TO COMPEL ARBITRATION, AND TO DISMISS OR IN THE ALTERNAT1VE STAY ACTION; ETC

8/18/2016: NOTICE OF MOTION AND MOTION FOR AN ORDER TO COMPEL ARBITRATION, AND TO DISMISS OR IN THE ALTERNAT1VE STAY ACTION; ETC

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

12/21/2016: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

DEFENDANTS' OPPOSITION TO PLAINTIFF'S OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT; ETC.

1/20/2017: DEFENDANTS' OPPOSITION TO PLAINTIFF'S OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT; ETC.

Minute Order

1/25/2017: Minute Order

SUPPLEMENTAL DECLARATION OF MICHAEL O AKHIDENOR IN SUPPORT OF DEFENDANTS' MOTION TO COMPEL ARBITRATION.

2/6/2017: SUPPLEMENTAL DECLARATION OF MICHAEL O AKHIDENOR IN SUPPORT OF DEFENDANTS' MOTION TO COMPEL ARBITRATION.

NOTICE OF RULING: RE CONTINUANCE OF DEFENDANTS' MOTION TO COMPEL ARBITRATION.

2/6/2017: NOTICE OF RULING: RE CONTINUANCE OF DEFENDANTS' MOTION TO COMPEL ARBITRATION.

22 More Documents Available

 

Docket Entries

  • 02/27/2019
  • Order on Court Fee Waiver (Superior Court) (Re: Additional Fees); Filed by Elly-Joy Shalome Kaushansky (Plaintiff)

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  • 02/13/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Status Conference (ReObjection(s) by Plaintiff to the Arbitrator) - Held

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  • 02/13/2019
  • Minute Order ( (Status Conference Re: Objection(s) by Plaintiff to the Arbitr...)); Filed by Clerk

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  • 02/13/2019
  • Case Management Order; Filed by Clerk

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  • 12/12/2018
  • Notice of Ruling

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  • 11/27/2018
  • at 08:31 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Order (To advance Costs of Arbitration; Order to Show Cause ReDismissal) - Held - Motion Granted

    Read MoreRead Less
  • 11/27/2018
  • Minute Order ((Hearing on Motion for Order To advance Costs of Arbitration; ...)); Filed by Clerk

    Read MoreRead Less
  • 11/27/2018
  • Ruling on Plaintiff's Motion for Order Requiring Defendants to Advance Costs of Arbitration or Waive Right to Arbitration; Filed by Clerk

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  • 11/19/2018
  • Defendant's Request for Judicial Notice in Opposition to Plaintiff's Motion; Filed by Stonecroft Attorneys, A Professional Law (Defendant); Michael Akhidenor (Defendant)

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  • 11/19/2018
  • Declaration of Michael o Akhidenor in Support of Defendants Opposition to Plaintiff's Motion; Filed by Stonecroft Attorneys, A Professional Law (Defendant)

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57 More Docket Entries
  • 08/03/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 07/15/2016
  • Summons; Filed by Elly-Joy Shalome Kaushansky (Plaintiff)

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  • 07/15/2016
  • SUMMONS

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  • 07/06/2016
  • SUMMONS

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  • 07/06/2016
  • Summons; Filed by Elly-Joy Shalome Kaushansky (Plaintiff)

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  • 06/24/2016
  • ORDER ON COURT FEE WAIVER

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  • 06/24/2016
  • COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, AND EQUITABLE RELIEF: 1. PROFESSIONAL NEGLIGENCE; ETC

    Read MoreRead Less
  • 06/24/2016
  • Order on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 06/24/2016
  • Complaint; Filed by Elly-Joy Shalome Kaushansky (Plaintiff)

    Read MoreRead Less
  • 06/24/2016
  • Request to Waive Court Fees; Filed by Elly-Joy Shalome Kaushansky (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC624944    Hearing Date: March 13, 2020    Dept: 47

Elly-Joy Shalome Kaushansky v. Stonecroft Attorneys, et al.

  

MOTION TO COMPEL DEPOSITION OF PLAINTIFF ELLY-JOY SHALOME KAUSHANSKY AND TO PRODUCE DOCUMENTS

MOVING PARTY: Plaintiff Elly-Joy Shalome Kaushansky

RESPONDING PARTY(S): Defendants Stonecroft Attorneys and Michael Akhidenor

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants committed legal malpractice by abandoning her during the course of representation in an action against her landlord.

Defendants move to compel Plaintiff’s deposition and production of documents.

TENTATIVE RULING:

Defendants Stonecroft Attorneys, APC and Michael Akhidenor’s motion to compel deposition of Plaintiff Elly-Joy Shalome Kaushansky and to produce documents is DENIED AS MOOT as to the deposition and DENIED AS UNTIMELY as to the requests to produce documents.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Motion To Compel Deposition and Production of Documents

Untimely Opposition

Defendant argues that the Court should not consider Plaintiff’s untimely opposition. Leaving aside the proof of service issues raised by Plaintiff, Defendants were able to file a substantive reply to the opposition. Thus, under the circumstances, the Court will elect to consider the untimely opposition.

Request for Judicial Notice

Although the request is labeled as a request for judicial notice “in opposition to Plaintiff’s motion” – when Defendants filed this motion – Defendants request judicial notice in connection with their reply of (1) certain LASC e-filing records and (2) a document that is laughably referred to as DMV “records.”

The Court has not relied upon the proof of service issues to decide whether to consider Plaintiff’s late-filed opposition, and therefore the request for judicial notice of the LASC e-filing records is DENIED. The Court need not take judicial notice of irrelevant materials. (Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1488 n.3 [declining to take judicial notice of city council resolutions that were “irrelevant”].)

Likewise, the so-called DMV “records” are irrelevant. Defendants have presented the Court with an undated mailing from the DMV that was purportedly mailed to a Douglas Atebata to prove that he is a “real person.” That document does nothing of the sort. There is no established connection between this document and the person who purportedly served Plaintiff, and the fact that the date is obscured is suspect. An undated envelope addressed to a particular name does not prove anything. In any case, this document is also irrelevant in light of the basis for the Court’s decision, and therefore the request for judicial notice of DMV “records” is DENIED.

Analysis

Defendant moves to compel the deposition of Plaintiff Elly-Joy Shalome Kaushansky and production of documents at the deposition.

Where, as here, a party deponent has not appeared for deposition at all, CCP § 2025.450 applies:

(a) 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.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(CCP § 2025.450(a), (b) (bold emphasis added).)

Here, Plaintiff did not make any objections to the deposition itself, and Plaintiff also did not make any objections to the accompanying request for documents under CCP § 2025.410. Objections under § 2025.410 must relate to compliance with “Article 2 (commencing with Section 2025.210).” (CCP § 2025.410(a).) Article 2 relates to various requirements for a notice of deposition, but again, Plaintiff’s objections were to individual document requests and an overall objection – also related to the document requests – that the “Notice contains definitions and instructions that do not comply with the Civil Discovery Act.” (Declaration of Sebastian M. Medvei, Exh. 1.) Plaintiff did not invoke CCP § 2025.220 or any other part of Article 2 in connection with this objection.

Plaintiff does argue that Defendant did not sufficiently meet and confer before filing the motion. As noted, however, all that is required when a party deponent does not appear is for the moving party to file a declaration “stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP § 2025.450(b)(2).) The Declaration of Christian Oronsaye indicates that he did contact Plaintiff’s counsel following Plaintiff’s failure to appear. (Oronsaye Decl. ¶ 7.)

The bottom line is that Plaintiff is willing to appear for deposition, has not raised any objections to being deposed, and failed to appear only “in order to not waive [her] objections” to the accompanying requests for documents. Accordingly, as to the deposition itself, the motion is DENIED AS MOOT.[1]

As to the documents, CCP § 2025.450 applies only if the party deponent has refused to produce any documents. That is not the case here; Plaintiff only refused to produce documents in certain categories, as opposed to refusing to produce any documents at all. (Medvei Decl., Exh. 1.) Under those circumstances, CCP § 2025.480 applies, and that section has a strict jurisdictional 60-day deadline:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or 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 (bold emphasis added).)

Where a deponent serves an objection to a deposition notice and does not appear, the “record of the deposition” is complete no later than the day set for the deposition, thereby triggering the 60-day time limitation as of that day:

By analogy, where a party serves a demand for documents on another party (see §§ 2031.010–2031.040), a motion to compel is subject to a filing deadline as long as a timely response to the demand is made. That deadline applies whether the responding party agrees to a partial production or objects to the demand in its entirety and produces nothing. (See §§ 2031.210–2031.260, 2031.300, 2031.310, subds. (a), (c).) Similarly, a party’s timely response to interrogatories or to requests for admissions—regardless of the number of objections—requires that a motion to compel be filed within a statutory time period. (See §§ 2030.210–2030.260, 2030.290, 2030.300, subds. (a), (c), 2033.210–2033.250, 2033.280, 2033.290, subds. (a), (c).) . . . In discovery between parties—document demands, interrogatories, and requests for admissions—the timely service of objections triggers a filing deadline for a motion to compel. . . .  Nor is the 60-day period rendered inapplicable to business records subpoenas merely because section 2025.480 refers to the “completion” of the record of the deposition. (See § 2025.480, subd. (b).) . . .

Unzipped points out that section 2025.480 appears in a chapter of the Act entitled “Oral Deposition Inside California” (see 21A West's Ann. Code Civ. Proc. (2007 ed.) pt. 4, tit. 4, ch. 9, p. 101), arguing that the 60-day period applies only to oral depositions. But, as the court stated in Monarch, rejecting the same argument: “The title does not make the law. … And despite the title, [the chapter] does contain provisions pertaining to depositions for production of business records … .” (Monarch, supra, 78 Cal.App.4th at pp. 1288–1289, citations omitted.) Further, as Shellfish recognized, “the Legislature included a [business records] subpoena within the general category of ‘oral depositions … .’ ” (Shellfish, supra, 56 Cal.App.4th at p. 21.) Our conclusion that section 2025.480 governs business records subpoenas is also supported by the language of the statute’s first subdivision, which refers not only to the deponent's “fail[ure] to answer any question” but also to the “fail[ure] to … produce any document … under the deponent's control.” (§ 2025.480, subd. (a).) Thus, oral and written depositions and document productions are all covered. In addition, subdivision (a) refers to documents sought by either a “deposition notice or a deposition subpoena,” so the statute applies to parties and nonparties. And, under subdivision (c), notice of the motion to compel may be given either “orally at the examination”—which would apply to a deposition at which the deponent testifies—or “by subsequent service in writing”—which would apply to a subpoena seeking only business records. (See Cal. Rules of Court, rule 3.1025 [discussing notice required for nonparty deponents].)  Nothing in subdivision (d) of section 2025.480 is to the contrary. That provision states that the relevant pages of the deposition transcript, if any, shall be lodged with the trial court before the hearing on the motion. Thus, where the motion to compel involves the failure to answer a question, the pertinent part of the transcript must be lodged. But where the motion involves the failure to produce documents in response to a business records subpoena, no part of any transcript will be relevant. Subdivision (d) ensures that the motion will be tailored to the type of deposition at issue. . . .

In sum, the objections served in response to Unzipped’s business records subpoenas constituted a record of a deposition. The record was complete as of the date set for the production, December 7, 2005, when Unzipped received the objections. Unzipped had 60 days thereafter, until February 6, 2006, to file a motion to compel. It waited until March 1, 2006, which rendered the motion untimely. The deadline was mandatory. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 [68 Cal. Rptr. 2d 708].)   The order granting the motion must therefore be reversed. 

(Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131-136 (bold emphasis added).)

Here, the deposition was noticed for September 24, 2019, which means the 60-day jurisdictional limit expired long before this motion was filed on February 3, 2020. Thus, the motion is also DENIED as to the requests for production of documents.

As the motion was unsuccessful, Defendant’s request for sanctions is DENIED.

In her opposition. Plaintiff seeks sanctions against Defendants and their counsel, Mr. Christian Oronsaye, pursuant to CCP §§ 2023.010, 2023.020, 2023.030, 2025.450, and/or 2025.480. Plaintiff’s request for sanctions is DENIED on the ground that the circumstances would make imposition of a sanction unjust. (CCP § 2025.480(j).) It appears that both parties bear some responsibility for Plaintiff’s deposition not taking place. Both parties might also want to consider overnight mail in the future, when permitted by the CCP and the court rules, given all of the service problems alleged in these papers.

The bottom line is this: If the Plaintiff will not voluntarily submit herself to a deposition in the near future and produce all documents which have been properly requested, this Court will not hesitate to simply continue the pending trial date, and re-open discovery for that limited purpose. Plaintiff should note that the next available trial date in this Court is in the Summer of 2021.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 13, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email atSmcdept47@lacourt.org


[1]  This ruling, of course, does not prevent the Defendant to simply re-notice the Plaintiff’s deposition, with or without a documents request. It is a fundamental obligation of any party in a civil case to submit he/she to a deposition and to produce all required documents, if properly noticed. If properly requested, the current trial date will be continued so that this deposition (and document production, if proper) can be completed.