Judge Daniel M. Crowley, Case Number: 21STCV06600, Date: 2024-07-15 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDept71@LACourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

Defendants Conair Corporation’s and Conair LLC’s motion to quash Plaintiff Mariam Arutyunyan’s notice of deposition of Eric Moy is denied.

Defendants Conair Corporation’s and Conair LLC’s request for sanctions against Plaintiff and/or her counsel is denied.

Defendants Conair Corporation’s and Conair LLC’s motion to quash Plaintiff Mariam Arutyunyan’s notice of deposition of Joe Santos is denied.

Defendants Conair Corporation’s and Conair LLC’s request for sanctions against Plaintiff and/or her counsel is denied.

Defendants Conair Corporation’s and Conair LLC’s motion to quash Plaintiff Mariam Arutyunyan’s notice of deposition of HC Wong is denied.

Defendants Conair Corporation’s and Conair LLC’s request for sanctions against Plaintiff and/or her counsel is denied.

Defendants Conair Corporation’s and Conair LLC’s motion to quash Plaintiff Mariam Arutyunyan’s notice of deposition of LZ Huang is denied.

Defendants Conair Corporation’s and Conair LLC’s request for sanctions against Plaintiff and/or her counsel is denied.

Plaintiff’s motion to compel the deposition of Eric Moy is granted. Eric Moy is ordered to appear for deposition and produce documents within 20 days of this ruling.

Plaintiff’s motion to compel the deposition of Joe Santos is granted. Joe Santos is ordered to appear for deposition and produce documents within 20 days of this ruling.

Defendants Conair Corporation (“Conair Corp”) and Conair LLC (“Conair LLC”) (collectively, “Defendants”) move to quash Plaintiff Mariam Arutyunyan’s (“Arutyunyan”) (“Plaintiff”) notice of deposition of Eric Moy (“Moy”) and request for production of documents. (Notice Quash Moy, pgs. 1-2.) Defendants also move for sanctions against Plaintiff and/or her counsel in the amount of $930.00. (Notice Quash Moy, pg. 2; C.C.P. §2025.450.)

Defendants move to quash Plaintiff’s notice of Deposition of Joe Santos (“Santos”) and request for production of documents. (Notice Quash Santos, pgs. 1-2.) Defendants also move for sanctions against Plaintiff and/or her counsel in the amount of $930.00. (Notice Quash Santos, pg. 2; C.C.P. §2025.450.)

Defendants move to quash Plaintiff’s notice of Deposition of HC Wong (“Wong”) and request for production of documents. (Notice Quash Wong, pgs. 1-2.) Defendants also move for sanctions against Plaintiff and/or her counsel in the amount of $930.00. (Notice Quash Wong, pg. 2; C.C.P. §2025.450.)

Defendants move to quash Plaintiff’s notice of Deposition of LZ Huang (“Huang”) and request for production of documents. (Notice Quash Huang, pgs. 1-2.) Defendants also move for sanctions against Plaintiff and/or her counsel in the amount of $930.00. (Notice Quash Huang, pg. 2; C.C.P. §2025.450.)

Plaintiff moves to compel the deposition of Moy, Conair LLC’s employee, and produce the documents according to Plaintiff’s April 17, 2024, Deposition Notice. (Notice MTC Moy, pgs. 2-3; C.C.P. §§2024.050, 2025.450.) Plaintiff moves on the following grounds: (1) the Witness’s identity was first disclosed to the Plaintiff by Conair’s April 10, 2024, production of documents that Conair LLC had improperly withheld from production at its January 24, 2024, deposition through its designee Jonathan Berera; (2) that fact discovery cutoff in this matter occurred on April 16, 2024; (3) that on April 17, 2024 the Plaintiff promptly served the Deposition Notice to require the Witness to appear on May 1, 2024; (4) that Conair has not served a valid objection under C.C.P. §2025.410; (5) that Conair seeks a protective order and refuses to produce the Witness or documents based upon discovery cutoff and other unmeritorious objections; (6) that there is good cause for production of requested documents; (7) that the Plaintiff requires the evidence of the Witness’s testimony and document production to oppose Conair’s pending motion for summary judgment and to appropriately prepare for trial; and (8) that the Witness did not appear as noticed. (Notice MTC Moy, pg. 2.) Plaintiff requests this Court first reopen discover only as it pertains to Moy and, in the event that Conair LLC might then maintain its refusal to timely produce the Witness, second to compel the Witness to appear for, and to testify and produce documents at, deposition. (Notice MTC Moy, pg. 2; Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.) Plaintiff also requests sanctions against Defendant Conair LLC and upon its attorneys Klinedinst PC, Teresa M. Beck, Marianne Laleuf-Thom, and Natasha Mayat in the amount of $3,410.00. (Notice MTC Moy, pg. 3; §§2023.010, et seq., 2024.050(c), 2025.450(g).)

Plaintiff moves to compel the deposition of Santos, Conair LLC’s employee, and produce the documents according to Plaintiff’s April 17, 2024, Deposition Notice. (Notice MTC Santos, pgs. 2-3; C.C.P. §§2024.050, 2025.450.) Plaintiff requests this Court first reopen discover only as it pertains to Santos and, in the event that Conair LLC might then maintain its refusal to timely produce the Witness, second to compel the Witness to appear for, and to testify and produce documents at, deposition. (Notice MTC Santos, pg. 2; Pelton-Shepherd Industries, Inc., 165 Cal.App.4th at pg. 1568.) Plaintiff also requests sanctions against Defendant Conair LLC and upon its attorneys Klinedinst PC, Teresa M. Beck, Marianne Laleuf-Thom, and Natasha Mayat in the amount of $3,410.00. (Notice MTC Santos, pg. 3; §§2023.010, et seq., 2024.050(c), 2025.450(g).)[1]

A party moving to staying the taking of a deposition and quashing the deposition notice must also file a meet and confer declaration under C.C.P. §2016.040. (C.C.P. §2025.410(c).

Defendants’ counsel declares that on April 25, 2024, she sent meet and confer correspondence to Plaintiff’s counsel requesting the deposition notices be withdrawn as they were not timely served and harassing. (Decl. of Mayat ¶9, Exh. D.) Defendants’ counsel declares that on April 25, 2024, it timely served its objection to the Moy notice of deposition. (Decl. of Mayat ¶10, Exh. E.) Defendants’ counsel declares that on April 29, 2024, Plaintiff’s counsel indicated he would not be withdrawing the notices of deposition. (Decl. of Mayat ¶11, Exh. F.) Defendants’ counsel’s meet and confer declaration is sufficient under the statute. Accordingly, the Court will consider the instant motion.

On January 24, 2024, Jonathan Berera appeared for deposition and testified as the person most qualified (“PMQ”) designated by Conair. (Decl. of Mayat ¶2.)

On March 12, 2024, Plaintiff filed a Motion to Compel Conair LLC PMQ Jonathan Berera to Attend and to Testify and Produce Documents at Deposition. (Decl. of Mayat ¶3, Exh. A.) Therein, Plaintiffs sought an order from the Court to, among other things, re-open discovery “for the limited purpose of conducting this deposition” as the discovery cutoff occurred on April 16, 2024. (See Decl. of Mayat ¶4, Exh. A at pg. 19, §H.) Plaintiff further states, “[s]hould the motion be granted … the Court will be ordering the Deposition to be conducted after the April 16, 2024, discovery cut-off. Thus, to the extent necessary, Plaintiff also moves to re-open discovery to conduct the Deposition.” (Id.)

On April 10, 2024, Defendants produced documents that were at issue in the Motion to Compel, including emails that included various employees as recipients thereof. (Decl. of Mayat ¶5.)

On April 12, 2024, the Court heard the Motion to Compel and granted it in part and denied in part, ordering the deposition of Mr. Berera resume and the deponent answer questions about various topics on which Plaintiff sought testimony. The Court otherwise denied the motion and did not order discovery to be re-opened. (See Decl. of Mayat ¶6, Exh. B.)

On April 17, 2024, Plaintiff served four Notices of Depositions of the employees who had been identified in the prior-produced e-mails, including the Notice of Deposition at-issue. (See Decl. of Mayat ¶7, Exh. C.) These Notice of Depositions were served after the discovery cutoff. (Decl. of Mayat ¶8.)

On April 25, 2024, Defendant timely served objection to the instant notice of deposition. (Decl. of Mayat ¶10, Exh. E.)

Defendants filed the instant motion on April 30, 2024. Plaintiff filed her opposition on May 16, 2024. Defendants filed their reply on May 21, 2024.

Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled.

(C.C.P. §2025.410(a).) Further, “[a]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day . . . before the date initially set for the trial of the action.” (C.C.P. §2024.020(a).)

Here, Plaintiff sought an order from the Court via her Motion to Compel Deposition to, among other things, re-open discovery “for the limited purpose of conducting [the PMQ deposition],” as the discovery cutoff was to occur on April 16, 2024. Plaintiff served the instant deposition notice on April 17, 2024, after the discovery cutoff. However, noticing a date after the discovery cutoff date does not appear to be grounds for a motion to quash; the intended date was not made in error by Plaintiff. Accordingly, the instant motion is not the appropriate procedural ground for opposing Plaintiff’s motion. Rather, a motion to protective order would be the mechanism to seek appropriate relief. (See C.C.P.

Accordingly, Defendants’ motion to quash the Deposition Notice of Moy is denied.

In light of the Court’s ruling, Defendants’ request for sanctions is denied.

For the same reasons stated with regard to Defendants’ Motion to Quash the Notice of Deposition to Moy, Defendants’ Motion to quash the Notice of Deposition to Santos is denied. Defendants’ request for sanctions is denied.

For the same reasons stated with regard to Defendants’ Motion to Quash the Notice of Deposition to Moy, Defendants’ Motion to quash the Notice of Deposition to Wong is denied. Defendants’ request for sanctions is denied.

For the same reasons stated with regard to Defendants’ Motion to Quash the Notice of Deposition to Moy, Defendants’ Motion to quash the Notice of Deposition to Huang is denied. Defendants’ request for sanctions is denied.

Plaintiff’s December 20, 2023, notice of deposition of Conair identified 20 matters for examination and included two document requests including one for documents that the deponent had used in preparing for the deposition. (4/12/24 2024 Minute Order, pg. 2.)

On January 24, 2024, Conair produced as its designee witness Berera. (4/12/24 Minute Order, at pg. 2.) Berera testified that he consulted with one other employee of Conair to prepare for his deposition: Ernst Miller. (Decl. of Geragos ¶3, and Exh. 2 at 16:12-21, 42:16-19.) Berera testified that he had reviewed a website, his emails, design documents, and an instruction booklet in order to prepare. (Decl. of Geragos ¶3, and Exh. 2 at 42:20-43:1.)

Berera did not produce any documents and Conair’s counsel instructed him not to answer certain questions. (4/12/24 Minute Order, pg. 2.) Plaintiff filed a prior motion to compel testimony and production of documents at that deposition. (Id.) On April 12, 2024, the Court granted the prior MTC in part and, among other things, ordered Conair to produce the documents that Berera had used to prepare and compelled the resumption of Conair’s deposition through Berera. (4/12/24 Minute Order, at pgs. 4-5.)

On February 9, 2024, the Court granted Conair’s ex parte application to continue trial in order to accommodate the July 9, 2024, hearing. (2/9/24 Minute Order.) The Court continued Trial from May 16, 2024, to November 12, 2024. (Id.) The Court did not continue non-expert discovery cutoff and instead left such fact discovery cutoff to be based upon the former May 16, 2024, trial date subject “to any further motion or application to extend such date.” (2/9/24 Minute Order.) Fact discovery cutoff in this matter occurred April 16, 2024.

Plaintiff filed the instant motion on May 28, 2024. Conair LLC filed its opposition on July 1, 2024. Plaintiff filed her reply on July 8, 2024.

A judge cannot hear a party’s motion to compel discovery after the cutoff date for discovery motions unless the party has moved to reopen discovery under C.C.P. §2024.050. (Pelton-Shepherd Industries, Inc., 165 Cal.App.4th at pgs. 1586-1588 [stating it is a prejudicial abuse of discretion for judge to grant motion without compliance with §2024.050].) Such a motion to reopen may be made simultaneously with the discovery motion to which it pertains, so long as there results some indication in the record that the court considered the relevant factors including, but not limited to, “[t]he necessity and the reasons for the discovery” and “[t]he diligence or lack of diligence of the party seeking . . . the hearing of a discovery motion, and the reasons that . . . the discovery motion was not heard earlier.” (Id., at pgs. 1586-1587.)

Here, the statutory cutoff for non-expert discovery in this action was April 16, 2024, and for hearing motions concerning the same was May 1, 2024. Moy did not appear on May 1, 2024, for the noticed deposition. (Decl. of Geragos ¶10, Exh. 7.)

Plaintiff requests in this motion that this Court reopen discovery for the purpose of hearing the instant motion and deposing Moy. The Court exercises its discretion to reopen discovery pursuant to C.C.P. §2024.050. The factors weighing in favor of reopening discovery include: (1) Moy’s deposition is necessary in order to discover matters pertaining to the design, construction, and operation of the subject blender, for the Plaintiff to appropriately prepare this matter for trial, and for Plaintiff to present facts essential to justify opposition of Conair’s Motion for Summary Judgment (Decl. of Geragos ¶12); (2) Plaintiff diligently sought the discovery that revealed Moy’s identity, without limitation by requesting on December 20, 2023 the production of documents on January 24, 2024, and Conair first revealed the identity of Moy on April 10, 2024, just six days before non-expert discovery cutoff; (3) the limited reopening of discovery sought by the instant motion is unlikely to prevent the case from going to trial in November 2024 or to interfere with any trial calendar, and Plaintiff will be prejudiced in the event that discovery is not reopened; and (4) in February 2024, Conair LLC requested the May 16, 2024 trial date be continued to November 12, 2024.

Further, Plaintiff has demonstrated good cause to compel the production of documents at Moy’s deposition over Conair LLC’s boilerplate objections. (See Associated Brewers Distributor Co. v. Superior Court (1967) 65 Cal.2d 583, 585-586.) Here, Conair LLC has not asserted any particular burden and there is nothing undue about requiring Conair LLC to produce documents that Moy reviews or prepares or from Conair LLC’s files.

Accordingly, this Court grants Plaintiff’s motion to compel the deposition of Moy pursuant to C.C.P. §2025.450 and orders Moy to appear for deposition and produce documents and things within twenty (20) days of this Court’s ruling.

“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 extend or to reopen discovery, 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. (C.C.P. §2024.050(c).)

The Court declines to award sanctions on the basis Conair LLC acted with substantial justification to oppose the instant motion because discovery was closed, and the notice of deposition was untimely made in the prior discovery cutoff period.

Here, the statutory cutoff for non-expert discovery in this action was April 16, 2024, and for hearing motions concerning the same was May 1, 2024. Santos did not appear on May 1, 2024, for the noticed deposition. (Decl. of Geragos ¶10, Exh. 7.)

Plaintiff requests in this motion that this Court reopen discovery for the purpose of hearing the instant motion and deposing Santos. The Court exercises its discretion to reopen discovery pursuant to C.C.P. §2024.050. The factors weighing in favor of reopening discovery include: (1) Santos’ deposition is necessary in order to discover matters pertaining to the design, construction, and operation of the subject blender, for the Plaintiff to appropriately prepare this matter for trial, and for Plaintiff to present facts essential to justify opposition of Conair’s Motion for Summary Judgment (Decl. of Geragos ¶12); (2) Plaintiff diligently sought the discovery that revealed Santos’ identity, without limitation by requesting on December 20, 2023 the production of documents on January 24, 2024, and Conair first revealed the identity of Santos on April 10, 2024, just six days before non-expert discovery cutoff; (3) the limited reopening of discovery sought by the instant motion is unlikely to prevent the case from going to trial in November 2024 or to interfere with any trial calendar, and Plaintiff will be prejudiced in the event that discovery is not reopened; and (4) in February 2024, Conair LLC requested the May 16, 2024 trial date be continued to November 12, 2024.

Further, Plaintiff has demonstrated good cause to compel the production of documents at Santos’ deposition over Conair LLC’s boilerplate objections. (See Associated Brewers Distributor Co. v. Superior Court (1967) 65 Cal.2d 583, 585-586.) Here, Conair LLC has not asserted any particular burden and there is nothing undue about requiring Conair LLC to produce documents that Santos reviews or prepares or from Conair LLC’s files.

Accordingly, this Court grants Plaintiff’s motion to compel the deposition of Santos pursuant to C.C.P. §2025.450 and orders Santos to appear for deposition and produce documents and things within twenty (20) days of this Court’s ruling.

Plaintiff’s motion to compel the deposition of Santos is granted. Santos is to appear for deposition and produce documents and things within twenty (20) days of this Court’s ruling.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Plaintiff’s reply to the motions to compel indicates her intent to take off calendar the motions to compel the depositions of Wong and Huang. Based on this representation, the Court has not ruled on the motions to compel the depositions of Wong and Huang.