Judge: Anne Richardson, Case: 20STCV04814, Date: 2023-03-13 Tentative Ruling

Case Number: 20STCV04814    Hearing Date: March 13, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendants Avraham Hassid, Hilltop Holdings 2021, LLC, and Western Imperial 2000, LLC.

OPPOSITION:                      [Unopposed]

Background

Allegations

Plaintiff Mike Amidi sues to recover damages suffered as a result of a former business partner and other entities and individuals using Amidi’s name to conduct business operations without Amidi’s knowledge as follows:

As of October 30, 2005, South Bay Contractors, Inc. (SBC)—whose Principal is Plaintiff Mike Amidi—and Monterey Bay View, LLC—a corporate entity owned by Defendant Avraham Hassid—owned a respective 40 percent and 60 percent interest in real property known as 4600 Block of Klamath St., Los Angeles., CA 90032 (the “Klamath Property”). In 2006, Hassid allegedly formed Hilltop Holdings, LLC, which filed tax documents for the 2006 to 2014 tax years indicating that Hilltop had an interest in the Klamath Property despite the property being sold in 2013. Further, in 2012, Hassid allegedly filed a Statement of Information with the California Secretary of State adding Amidi as a member of Hilltop. Prior to this, Hilltop’s tax documents indicated that Plaintiff received distributions of $501,545.00 from Hilltop between the years of 2008 and 2011. These documents also indicated that Hilltop had in 2006 made a loan to Defendant Western Imperial 2000, LLC, another entity owned by Hassid, whose loan debt to Hilltop, according to Hilltop’s tax documents, increased from $173,152.00 to $223,673.00 between 2006 and 2014. Defendants George Bral, CPA and George Bral, CPA, (Bral Defendants) are the accountants who allegedly filed the false tax documents. Plaintiff Amidi alleges that he did not discover these facts until sometime in November 2019.

Based on these alleged facts, Plaintiff Amidi brought this action against the Hassid and the Bral Defendants in February 2020. In the course of four amendments to the Complaint, Amidi added Hilltop and Western as defendants. After a demurrer to its Third Amended Complaint, Plaintiff filed a Fourth Amended Complaint on January 21, 2022, alleging three causes of action: (1) fraudulent concealment against Hassid and Hilltop for concealing Hilltop’s unpaid loans to Western, unpaid distributions to Plaintiff, filings with the Secretary of State adding Plaintiff as a member of Hilltop, and the filing of tax returns listing Plaintiff’s involvement in Hilltop; (2) aiding and abetting fraudulent concealment against all defendants based on the each defendant’s participation in the grounds presented for fraudulent concealment; and (3) conversion against Hassid, Hilltop, and DOES 1-5 for failing to pay Amidi the more than $500,000 in distributions from Hilltop.

On September 13, 2022, the Court entered an Order re Determination of Good Faith Settlement between Plaintiff Amidi and the Bral Defendants. The Bral Defendants were subsequently dismissed from the case pursuant to a Request for Dismissal by Plaintiff Amidi.

On March 9, 2023, Plaintiff Amidi filed a Notice of Assignment of Claims, showing assignment of his affirmative claims against Hassid, Hilltop, and Western to Kayvan Setareh, as Trustee of the Pacific Capital Trust.

Instant Motion

On August 1, 2022, Defendant Hassid issued a Notice of Videotaped Deposition for Plaintiff Amidi, set to take place on August 29, 2022, on which date Plaintiff Amidi failed to appear.

In October 2022, in agreement with Plaintiff’s counsel, Bryan Doss, Defendant Hassid’s counsel issued a first amended deposition notice for Plaintiff Amidi, which set a deposition date of November 10, 2022. The deposition ultimately did not proceed based on Amidi’s alleged unavailability for a Zoom deposition. Counsel for Amidi indicated on November 9, 2022 that Plaintiff was nevertheless available for an in-person deposition.

On November 15, 2022, Hassid’s counsel unilaterally issued a second deposition notice for Plaintiff Amidi, setting an in-person deposition for January 12, 2023. The deposition did not ultimately take place, however, because on January 9, 2023, Plaintiff Amidi’s counsel (Bryan Doss) informed Defendant Hassid’s counsel that neither Doss nor anyone from his legal offices would be available for the January 12th deposition because Doss was going to be in a “prescheduled mediation” previously scheduled in October 2022.

Defendant Hassid’s counsel has since attempted to schedule another deposition date for Plaintiff Amidi, but Bryan Doss has ceased to communicate with Hassid’s legal counsel.

As a result, on February 14, 2023, Defendants Hassid, Hilltop, and Western made a Motion to Compel Plaintiff Mike Amidi to Appear for Deposition and Request for Sanctions.

Plaintiff Amidi failed to file an opposition to the motion within the statutorily permitted time period, i.e., by Friday, February 24, 2023. There is a presumptively valid proof of service attached to the demurrer filing.

On March 6, 2023, Hassid, Hilltop, and Western filed a Notice of No-Opposition with the Court, indicating that Plaintiff Amidi has failed to oppose this motion.

Motion to Compel Deposition: GRANTED.

Legal Standard

A motion to compel attendance at a deposition can be made by the party that served the deponent on the ground that a party deponent or party-affiliated deponent did not attend a deposition or appeared but refused to proceed. (See Code Civ. Proc., § 2025.450, subd. (a).) To establish this ground, a movant must:

Identify the deponent and state whether the deponent is a party or party-affiliated witness. (See Code Civ. Proc., § 2025.450, subd. (a).)

Show the deponent was (1) properly served with a deposition notice, (2) required to appear for a deposition on the date and at the time and place identified in the deposition notice, and (3) that the date for the deposition was not rescheduled. (See Code Civ. Proc., § 2025.280, subd. (a).)

Show the deponent (1) did not appear at the deposition or appeared but refused to proceed and (2) did not serve a valid objection to defects in the deposition notice before the deposition. (See Code Civ. Proc., § 2025.450, subd. (a); Robbins v. Regents of the Univ. of Cal. (2005) 127 Cal.App.4th 653, 659; see e.g., Parker v. Wolters Kluwer U.S. Inc. (2007) 149 Cal.App.4th 285, 292 [Motion to compel appearance granted when deponent was 40 minutes late to deposition, refused to be sworn or to testify, and then left early].)

Set forth specific facts showing good cause for the production, as applicable. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

Provide a meet and confer declaration under Section 2016.040, or, if the deponent did not appear, a follow-up contact with the deponent. (See Code Civ. Proc., § 2025.450, subd. (b)(2) [“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”].)

Analysis

Defendants move to compel the deposition of Plaintiff Mike Amidi. In support, the

Defendants:

Identify Mike Amidi as the subject of deposition (Mot., Zohar Decl., ¶ 2);

Provide evidence showing that most recently, Amidi was properly served with a deposition notice requiring his attendance at a January 12, 2023 deposition, which was not rescheduled (Mot., Zohar Decl., ¶ 6, Ex. 8 [second amended deposition notice]; see also Mot., Zohar Decl., ¶ 3, Ex. 1 [showing first deposition notice on August 1, 2022 with deposition date of August 29, 2022 & ¶¶ 4-5, Ex. 4 [showing first amended deposition notice for deposition date of November 10, 2022]);

Provide evidence showing that Amidi neither attended the January 12, 2023 deposition nor served a valid objection to the deposition notice based on some defect therein (Mot., Zohar Decl., ¶ 7, Ex. 9 [email from Amidi’s counsel stating Amidi’s counsel, Bryan Doss, would not attend the deposition based on a pre-existing conflict]); and

Provide evidence that Hassid’s counsel followed up with Bryan Doss but that Doss altogether failed to respond to these communications (Mot., ¶ 8, Ex. 10 [follow-up emails]).

Though the Defendants do not explicitly explain in their motion or the Zohar Declaration why there is good cause for the seeking production of three categories of documents along with Plaintiff’s deposition (Mot., Zohar Decl., Ex. 8 [deposition notice with three categories of production requests]; see Mot. & Zohar Decl. generally), the Court finds that these requests sufficiently relate to the Defendants’ argument that they “are entitled to question those accusing them of wrongdoing” (Mot., 1:9-10). (See Mot., Zohar Decl., Ex. 8 [seeking documents related to whether Plaintiff was a member of Hilltop, entitlement to Hilltop distributions, and evidence of damages].)

Having met the requirements for compelling a deposition pursuant to Code of Civil Procedure section 2025.450, the Defendants’ motion is GRANTED.

Request for Sanctions: GRANTED.

Legal Standard

If a motion under Code of Civil Procedure section 2025.450, subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348.)

Analysis

Defendants Amidi, Hilltop, and Western seek monetary sanctions of $3,752.80 from Plaintiff Amidi and Amidi’s counsel—Bryan Doss—as compensation for defense counsel’s work in “drafting and researching the concurrently filed discovery motions and supporting papers.” (Mot., 5:8-23, Zohar Decl., ¶¶ 9, 13-14.)

Plaintiff Amidi has failed to file an opposition against this request for sanctions. (See docket generally.)

Based on Plaintiffs’ failure to appear at three noticed depositions, and Plaintiff’s failure to substantially justify his conduct, as well as counsel Bryan Doss’s failure to properly communicate with counsel for Defendant Amidi, the Court GRANTS the requested fees of $3,752.80, to be paid jointly and severally by Plaintiff Amidi and counsel Bryan Doss. (Code Civ. Proc., § 2023.10, subd. (d); Cal. Rules of Court, rule 3.1348.)

Conclusion

Defendants Avraham Hassid, Hilltop Holdings 2021, LLC, and Western Imperial 2000, LLC’s Motion to Compel Plaintiff Mike Amidi to Appear for Deposition is GRANTED based on the Defendants’ compliance with the requirements set forth in Code of Civil Procedure section 2025.450.

Defendants Avraham Hassid, Hilltop Holdings 2021, LLC, and Western Imperial 2000, LLC’s Request for Sanctions is GRANTED in the amount of $3,752.80 based on Plaintiff Amidi’s non-appearance at three noticed depositions and failure to substantially justify this conduct, as well as counsel Bryan Doss’s failure to properly communicate with counsel for Defendant Amidi, where the $3,752.80 figure represents a reasonable recovery for defense counsel’s work “drafting and researching the concurrently filed discovery motions and supporting papers.”

Plaintiff Mike Amidi and counsel Bryan Doss are ORDERED to remit the $3,752.80 in sanctions WITHIN 30 DAYS.