TXTSMARTER LLC, ET AL. VS. NURI OTUS

Plaintiffs seek evidentiary and monetary sanctions. Specifically, plaintiffs ask the court to preclude any testimony from Otus regarding:

July 15, 2026 LAW AND MOTION CALENDAR JUDGE NICOLE S. HEALY, DEPARTMENT 28 ________________________________________________________________________ (1) his claim for unpaid wages, including his assertion that he was to be paid $300,000 per year;

(2) any alleged agreement to defer his wages;

(3) any alleged agreement that he was to be paid $300,000 a year;

(4) the amounts he was actually paid;

(5) events leading up to the sale of assets to Txtsmarter, LLC in July/August of 2022 and Otus’ resignation as Director and President;

(6) Textsmarter, Inc.’s sale of assets to Txtsmarter, LLC, including Otus’ involvement in drafting purchase agreements;

(7) the liabilities assumed by Txtsmarter, LLC as part of the sale;

(8) his failure to turn over specific assets under his control to Txtsmarter, LLC pursuant to the purchase agreements, and alleged defense related thereto; and;

(9) defense of this claim and regarding his interference with contracts after his resignation from Textsmarter, Inc.

(Defts.’ Notice, at pp. 1-2; defts.’ Mem. at pp. 10-11.)

As an initial matter, evidentiary sanctions do not appear warranted because defendant appeared for his initial deposition, but not his continued deposition. After the court issued its November 17, 2025 Order for defendant to appear for his deposition, plaintiffs took his deposition on November 20, 2025. Defendant’s deposition took place at 10:02 a.m. and ended at 3:56 p.m. with the understanding that it would be re-scheduled because the deposition had not been completed. (Aqui Decl., ¶ 23.)

On December 29, 2025, plaintiffs re-noticed defendant’s deposition and sent multiple emails to follow up with defendant. Defendant refused to attend unless Eddie Green’s deposition (a partner and witness in this case) occurred first. On January 28, 2026, plaintiffs sent a notice of continued deposition and request for production of documents at deposition noticing defendant’s deposition for February 11, 2026. Defendant once again responded that his deposition would not go forward until after Green’s deposition, demanded Green’s availability, and threatened to file a motion for sanctions. Defendant did not serve any objections to the deposition notice or file a motion to quash. (Aqui Decl., ¶ 32.)

Otus has agreed to sit for the continued deposition but appears to be operating under the mistaken assumption that he has the right to take Green’s deposition before he completes his own deposition. However, defendant did not object to the notice of continued deposition, did not file a motion for protective order regarding his continued deposition and has not opposed this Motion (although as discussed above it may not have been properly served). Moreover, at a case

July 15, 2026 LAW AND MOTION CALENDAR JUDGE NICOLE S. HEALY, DEPARTMENT 28 ________________________________________________________________________ management conference held on June 10, 2026, plaintiffs’ counsel represented that they would provide Otus with dates for Green’s deposition. And, at that same hearing, the court ordered Otus to complete his continued deposition. (See June 10, 2026 minute order.) Accordingly, Otus’s failure to appear for his continued deposition is without merit.

Although plaintiffs are seeking evidentiary sanctions based on defendant’s failure to appear for his continued deposition, they have not provided a copy of the deposition transcript. Instead, plaintiffs’ counsel submitted a spreadsheet outlining topics and issues to be covered at the follow-up deposition. (Aqui Decl., exh. B.) The spreadsheet identifies the topics that plaintiffs claim they intended to depose defendant about at his continued deposition. (Ibid.) As noted above, plaintiffs seek to exclude evidence pertaining to these nine topics. (Ibid.)

The court cannot determine that evidentiary sanctions are warranted simply because plaintiffs’ counsel claims these nine topics would have been covered at defendant’s continued deposition. Because plaintiffs did not provide a copy of the deposition transcript, the court is being asked to assume that these topics were not covered at defendant’s initial deposition, which lasted for approximately six hours. The court will not make assumptions about what questions were or were not asked or about defendant’s responses during his initial deposition.

In addition, the court’s November 17, 2025 Order denied without prejudice the request to compel the production of document responsive to Requests Nos. 1, 3, 13 and 20 in the Amended Notice of Deposition. The court found plaintiffs failed to address the good cause requirement for production of the documents. (Further, the Amended Notice of Deposition contains 18 requests, and therefore it does not appear that there is a request No. 20; see plaintiffs’ Notice of Motion to Compel Depo., filed June 26, 2025, exh.

B, Amended Notice of Deposition.) Regardless, plaintiffs’ Notice of Continued Deposition for February 11, 2026, which was served by email, contains 24 requests. (Aqui Decl., ¶ 30, and exh. F.) This includes the same requests that the court found plaintiffs failed to establish good cause for compelling (Nos. 1, 3 and 13), along with new requests. Therefore, plaintiffs’ continued notice of deposition appears to exceed the scope of the court’s prior Order compelling defendant to appear for deposition.

In other words, plaintiffs have not shown that evidentiary sanctions are warranted when the scope of their requested document requests exceeds what the court previously ordered.

Assuming plaintiffs can show that service was properly effected the court DENIES the requested evidentiary sanctions but GRANTS plaintiffs’ request for monetary sanctions based on defendant’s failure to appear at his continued deposition. Plaintiffs request $6,148.50 in monetary sanctions. This amount is based on 12.3 hours @ $495/hour ($6,088.50) to prepare this Motion. (Leonard Decl.) Plaintiffs also request the $60 filing fee for this Motion. (Ibid.) The court reduces that amount to $4,950 (10 hours) plus the $60 filing fee for a total of $5,010, payable within thirty (30) days of notice of entry of this order.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and

July 15, 2026 LAW AND MOTION CALENDAR JUDGE NICOLE S. HEALY, DEPARTMENT 28 ________________________________________________________________________ provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.