Judge: David A. Rosen, Case: 20GDCV00134, Date: 2023-02-17 Tentative Ruling

Case Number: 20GDCV00134    Hearing Date: February 17, 2023    Dept: E

Hearing Date:  02/17/2023 – 8:30am

Case No:            20GDCV00134                                                             

Trial Date: 06/26/2023

Case Name: VAHAG ABRAMYAN, inidv; v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, a California Corporation; and DOES 1-20

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION OF PMQ OF NON-PARTY

Moving Party: Defendant, Interinsurance Exchange of the Automobile Club

Responding Party: No Opposition submitted

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Uncertain

The notice of this motion was allegedly served on Plaintiff’s counsel and the non-party, Badalyan Group, Inc.

As to service of this motion on Plaintiff’s counsel it is uncertain if it was served on the proper address for two reasons. As to alleged service by email, the instant motion was served on Arsine Grun at “agrun@lawgrun.com” and a copy to “legal@lawgrun.com” ; however, on eCourt, Arsine Grun’s email address is noted as “arsinegrun@grunandassociates.com” . Further as to the alleged service by certified mail on Plaintiff’s counsel, the proof of service lists Arsine Grun’s address as “411 N. Central Avenue, Suite 605, Glendale, CA 92103”; however, eCourt lists Arsine’s mailing address as “411 N. Central Avenue, Suite 230, Glendale, CA 91203”.

While there do appear to be emails in Defendant’s motion under Exhibit K wherein Arsine Grun is communicating with an email address of agrun@lawgrun.com, there is still a discrepancy since the file technically reflects an email address other than “agrun@lawgrun.com.”

As to service of this motion on the non-party, Badalyan Group, Inc., it is unclear if Badalyan was served by both mail and email. If Badalyan was served by mail, it appears Badalyan was served at “Badalyan Group, Inc., 8626 Remick Ave, Sun Valley, CA 91532”. If Badalyan was served by email, Badalyan was served at “hayk@citydamage.com”

RELIEF REQUESTED
Defendant, Interinsurance Exchange of the Automobile Club moves this Court for an order to compel Person Most Knowledgeable of Badalyan Group to comply with Defendant’s deposition subpoena for testimony pertaining to the claim of Plaintiff Vahag Abramyan within ten days of the hearing for this motion.

Defendant moves the Court for an order imposing monetary sanctions in the amount of $1,320.00 against Badalyan Group for its misuse of the discovery process in failing to properly comply with Defendant’s deposition subpoena.

Defendant makes this motion pursuant to CCP §2020.220 and 2025.480 on the grounds that Defendant properly noticed the deposition and served a subpoena for testimony on the Badalyan Group, who then failed to comply therewith without justification.

BACKGROUND

This action stems from a water loss claim under a homeowners policy, in which Plaintiff, Vahag Abramyan, alleges the home suffered water damage resulting from rain intrusion through a leaking roof. (Bridwell Decl. ¶2.)  Defendant covered the portion of the claim for the detached garage including roof replacement, because the garage roof displayed signs of wind damage. (Id.) However, Defendant denied coverage as to the main dwelling because, among other things, the damage was the result of defective installation of the roof (“subject incident”)(Id.) Plaintiff filed the subject lawsuit against Defendant asserting causes of action for Breach of Insurance Contract and Bad Faith arising from the partial denial of coverage for the subject incident. (Decl. Bridwell ¶3.)

The Badalyan Group is among the contractors involved in the inspection and repairs to the property. (Decl. Bridwell ¶4.) Plaintiff listed the Badalyan Group in response to Form Interrogatories 7.1, 7.2, 12.1, 12.4, 12.5 & 12.7. (Id.) Plaintiff also produced documents, namely scope and estimate of repairs, prepared by Badalyan Group. (Id.) Moreover, the Badalyan Group itself produced documents in response to a subpoena for production of business records, without any objection from plaintiff. (Id.)

In an effort to obtain complete information regarding the subject incident, on October 1, 2021, Defendant issued and claims to have served a deposition subpoena on Badalyan Group for the Person Most Knowledgeable of Badalyan Group, which was set to take place on November 11, 2021. (Bridwell Decl. ¶5, Ex. B.) The subpoena was requesting testimony “relating to inspections, assessments, estimates, or work performed at 1515 Glenwood Road, Glendale, CA 91201 and/or for Vahag Abramyan.” (Bridwell Decl. ¶5, Ex. B.) This deposition did not go forward. (Bridwell Decl. ¶6.)

Defendant issued and claims to have served a deposition subpoena on Badalyan Group to obtain the deposition testimony from the PMK of Badalyan Group, which was set to take place on April 26, 2022. (Bridwell Decl. ¶7.) Plaintiff’s counsel sent an email to Defendant’s counsel stating that the deposition would need to be reset, and this deposition did not go forward. (Bridwell Decl. ¶8.)

Defendant issued and claims to have served another deposition subpoena on Badalyan Group to obtain the deposition testimony from the PMK of Badalyan Group which was set to take place on June 30, 2022. (Bridwell Decl. ¶9.) Defendant’s counsel emailed Plaintiff’s counsel and stated certificates of non-appearances would be taken if the deponent failed to appear. (Id.) The Badalyan Group failed to appear for the June 30, 2022 deposition, and Defendant took a certificate of non-appearance. (Id.)

Defendant issued and claims to have served a deposition subpoena for the deposition of the PMK of Badalyan Group set for August 18, 2022. (Decl. Bridwell ¶10.) The Badalyan Group failed to appear for this deposition and Defendant took another certificate of non-appearance. (Id.)

On August 18, 2022, the day of the deposition, Plaintiff’s counsel sent an email to Defendant’s counsel claiming that Mr. Badalyan would be designated as an expert in the action thus “we can’t do the deposition Today.” (Decl. Bridwell ¶11.) Then, on October 13, 2022, Defendant’s counsel in one last attempt to meet and confer on this deposition, sent an email to Plaintiff’s counsel and Mr. Badalyan explaining that Mr. Badalyan is a percipient witness in this matter and Defendant is entitled to take his deposition in that capacity before expert designations. (Id.) Further, counsel asked if Badalyan would appear for a deposition in October or early November otherwise Defendant would have no choice to file a motion to compel the deposition and would be seeking sanctions for reimbursement of fees and costs in being forced to file the motion. (Id.)

ANALYSIS
As a preliminary matter, it appears that Defendant made this motion under the incorrect statute. Defendant made this motion under CCP §2025.480. Defendant cites the following portion of 2025.480, “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.” (CCP §2025.480.(a).)

This is the incorrect statute because: (1) The deposition never occurred; therefore, there were no questions that deponent failed to answer. Further, there were no questions in the deposition subpoena; therefore, there were no questions that deponent failed to answer. (2) The instant deposition subpoena was for deposition testimony and did not request production of any documents.

Here, the Defendant is seeking to compel the deposition attendance of the PMK of Badalyan Group so Defendant can obtain deposition testimony. Defendant is not seeking production of documents or answers to questions that were asked at a deposition or questions in a deposition subpoena. Therefore, 2025.480 is inapplicable. (See Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127, “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to compel production ‘no later than 60 days after the completion of the record of the deposition.’ (§ 2025.480, subd. (b), italics added.).”)

To this Court, it appears that Defendant should have most likely moved under CCP §2025.450, or in the alternative potentially under CCP §1987.1.

In civil litigation, discovery may be obtained from a nonparty only through a deposition subpoena. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) The Civil Discovery Act authorizes a nonparty’s oral deposition, written deposition, and deposition for the production of business records. (Id.)

Here, Defendant seeks to compel the oral deposition of non-party, the Badalyan Group, and CCP §2020.010 describes how that discovery can be obtained. “Any of the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought: (1) An oral deposition under Chapter 9 (commencing with Section 2025.010).” [Emph. added.] (CCP §2020.010(a)(1).)

C.C.P. §2025.450(a) provides, as follows:  “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.”

C.C.P. §2025.450(b) provides, in pertinent part, as follows: 

“(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.”

Here, the most recent deposition that Badalyan Group did not attend was the August 18, 2022 deposition. Although Defendant took a certificate of non-appearance, Defendant did not comply with CCP §2025.450(b)(2). Defendant did not include in this motion a declaration stating that the petitioner contacted the deponent to inquire about the nonappearance. Further, Defendant’s Exhibits don’t show any emails in which the Defendant contacted Badalyan Group inquiring about the August 18, 2022 non-appearance. Additionally, even if this Court were to consider the June 30, 2022 date for deposition as the basis of this motion, that date would suffer the same defects because even though Defendant took a certificate of non-appearance for the June 30, 2022 deposition, Defendant did not comply with 2025.450(b)(2) since Defendant does not have a declaration stating it inquired about the nonappearance, and Defendant’s emails don’t indicate inquiry about the nonappearance.

Further, if this motion was supposed to be made under CCP §1987.1, Defendant still doesn’t appear to meet the requirements to compel the deposition of the PMK for Badalyan Group.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.

(2) A witness.

(3) A consumer described in Section 1985.3.

(4) An employee described in Section 1985.6.

(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.”

(CCP §1987.1 (a)-(b)(5).)

Defendant fails to satisfy the requirements to compel deposition under 1987.1, and under 2025.450, because for the most recent deposition of August 18, 2022, there is no proof that Defendant served the deposition subpoena on non-party the Badalyan Group. Further, even if the Court were to consider the June 30, 2022, deposition for the basis of this motion, the proof of service for that deposition subpoena is only served on Plaintiff and not on non-party the Badalyan Group.

Sanctions

If a motion under 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. (CCP §2025.450 (g)(1).)

Here, Defendant requested sanctions in the amount of $1,320.00; however, Defendant requested sanctions under 2025.480(k). This Court already stated why 2025.480 was inapplicable. Most importantly, the Court is not granting this motion; therefore, Defendant’s request for sanctions is denied.

TENTATIVE RULING
Defendant’s motion is DENIED. Defendant moved to compel under 2025.480, which is the incorrect statute. Defendant did not comply with the procedural requirements of CCP §2025.450. Further, even if 1987.1 were to apply as opposed to 2025.450, Defendant’s motion doesn’t show any proof that Defendant served the deposition subpoena on the non-party, the Badalyan Group. Defendant’s request for sanctions is denied.