Judge: David A. Rosen, Case: 22GDCV00275, Date: 2023-01-13 Tentative Ruling

Case Number: 22GDCV00275    Hearing Date: January 13, 2023    Dept: E

Hearing Date:  01/13/2023 – 8:30am

Case No:            22GDCV00275                                                                             

Trial Date:   07/31/2023

Case Name: LA CRESCENTA CHAPTER OF THE ARMENIAN CULTURAL FOUNDATION, an unincorporated association; v. ARMENIAN CULTURAL FOUNDATION, a California public benefit nonprofit corporation; and DOES 1-5

 

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION

 

Moving Party: Plaintiff, La Crescenta Chapter of the Armenian Cultural Foundation

Responding Party: Non-Party, Sarkis Tchakian

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

Opposition (untimely), and Reply Submitted. Reply accurately points out that the Opposition is untimely. The Court will still consider the Opposition.

RELIEF REQUESTED
Plaintiff moves the Court for an order (1) compelling third-party witness Sarkis Tchakian to appear for deposition pursuant to a subpoena served on November 10, 2022, and (2) awarding sanctions in the amount of $2,685.00.

Motion is made pursuant to CCP §1987 et seq and is made on the grounds that Tchakian failed to appear for his deposition and refused to provide alternative dates on which his deposition could proceed.

BACKGROUND
Plaintiff filed a Verified First Amended Complaint on 08/18/2022 which alleged four causes of action – (1) Quiet Title – Adverse Possession, (2) Establishment and Breach of Constructive and/or Resulting Trust, (3) Quiet Title – Constructive/Resulting Trust, and (4) Declaratory Relief. Defendant filed a demurrer on 8/26/2022 as to all causes of action for failure to state facts sufficient to constitute a cause of action. Defendant demurred to all causes of action in the FAC, but on September 16, 2022, this Court overruled the demurrer.

 

On 12/30/2022, this Court heard Intervenor’s, La Crescenta Chapter of the Armenian Cultural Foundation, Motion for Leave to Intervene and granted the motion for leave to intervene. [In the motion for leave to intervene, Intervenor submitted the declaration of Sarkis Tchakian who was alleged to be the chairman of the board of directors for Intervenor.]

 

Plaintiff now seeks to compel the appearance for deposition of third-party witness Sarkis Tchakian.

ANALYSIS
As stated in Terry v. SLICO :

The Civil Discovery Act is codified as title 4 (commencing with section 2016.010) of part 4 of the Code of Civil Procedure. Chapter 6 (commencing with section 2020.010) of this title is addressed to nonparty discovery. Chapter 6 begins with the identification of the three methods of obtaining discovery within the state from a person who is not a party to the action, and confirms that the normal “process by which a nonparty is required to provide discovery is a deposition subpoena.” (§ 2020.010.) “Where [a] witness whose deposition is sought is not a party (or a ‘party-affiliated’ witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:535, 8E–40.) Section 2020.020 then identifies three types of nonparty deposition subpoenas. “A deposition subpoena may command any of the following: [¶] (a) Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310). [¶] (b) Only the production of business records for copying, under Article 4 (commencing with Section 2020.410). [¶] (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, and tangible things, under Article 5 (commencing with Section 2020.510).” (§ 2020.020; see Weil & Brown, supra, ¶ 8:537.) There is no requirement that an affidavit of good cause be served with either a “testimony only” deposition subpoena (see § 2020.310) or a “business records” deposition subpoena (see § 2020.410).

 

(Terry v. SLICO (1st Dist. 2009) 175 Cal.App.4th 352, 356-357.)

 

According to Plaintiff, Tchakian was served a deposition subpoena on November 10, 2022 setting his deposition for November 30, 2022, and the subpoena sought testimony only. (Pl. Mot. p. 3; Ex. A & B.) Further, according to Plaintiff, “On November 22, 2022, Tchakian served objections to the subpoena in this case, again asserting that one of his two counsel of record is out of town from November 20 through December 7, 2022.” (Pl. Mot. p.5; Ex. D.)

In Plaintiff’s Exhibit D, the first objection to the deposition states in relevant part, “Responding Party objects to the Notice on the grounds that Propounding Party unilaterally set a date for deposition without confirming with Responding Party’s counsel, or any other party’s counsel, regarding the availability on that date of Responding Party and Responding Party’s counsel.” (Pl. Ex. D.)

Plaintiff moves to compel under CCP §1987.1. In Reply, Plaintiff states, “Other than filing a motion “reasonably made,” there are no prerequisites to filing a motion to compel compliance with a deposition subpoena.” (Pl. Reply p. 4.)

 

 

CCP §1987.1 states:

(a) 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.

(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.

 

(CCP §1987.1)

 

Here, Plaintiff cites to the directing compliance language of 1987.1(a) to argue that this Court should direct compliance of Tchakian for the deposition subpoena.

 

However, the Opposition pointed out in relevant part, “Rather, Plaintiff without ever attempting to call or discuss the issues here: (1) served a deposition subpoena with a unilateral date…” (Oppo. p. 1.)

The Court finds Tchakian’s objection valid, as Plaintiff unilaterally set the deposition date for Tchakian and did not discuss deposition dates before initially setting the deposition.

The Opposition to this motion argues that no deposition ever proceeded here, and Plaintiff did not take a certificate of non-appearance for any deposition for which Tchakian did not appear. Problematic with Opposition’s argument is that it cites no case law or statute that there must be a certificate of non-appearance supporting the motion to compel

 

Setting aside the issue of the certificate of non-appearance, since Plaintiff unilaterally set the deposition date of Tchakian, then received objections, and never re-set the deposition, the Court is not directing compliance with the deposition subpoena as requested by Plaintiff.

 

MISCELLANEOUS
No Motion to Quash
Moving party argues that Tchakian’s counsel failed to file a motion to quash or limit the subpoena pursuant to CCP §1987.1. The Court finds this argument unavailing as Plaintiff cited no case law or statute that requires Tchakian to do so in order to properly object to the subpoena.

 

TENTATIVE RULING
Motion to compel deposition of Tchakian is DENIED. However, the Court understands Plaintiff’s concerns stated in Plaintiff’s Reply about Tchakian’s counsel being difficult to work with in scheduling a deposition date.

 

As noted in the Reply:

 

On December 13, 2022, approximately one week after Mr. Lee’s return and more than a month after the subpoena was served, and having yet to receive any response, Plaintiff’s counsel emailed Tchakian’s counsel stating: “I still have not received any response to my emails. Please provide me by the end of the day tomorrow at least two available dates on which to take Mr. Tchakian’s deposition either in December or the first week in January. Otherwise, we will proceed with a motion to compel.” (Id.) By December 16, 2022, when the motion was filed, Tchakian had refused to even respond to the email, let alone provide dates for deposition.

 

Tchakian’s counsel did not reach out to Plaintiff until December 29, 2022—the day before his opposition to the motion was due. Even then, however, Tchakian was not prepared to provide dates for his deposition. Instead, Tchakian was only willing to sit for deposition on the issues presented in the cross-complaint in intervention (a document that still has not been filed!), and only on some unidentified date in late January or February, 2023. (Ex. 1 to Sanchez Decl.)

 

(Pl. Reply. p. 2-3.)

 

Therefore, Plaintiff’s counsel and Tchakian’s counsel are ordered to meet and confer forthwith as to the scheduling of the subject deposition.

SANCTIONS RULING

Moving party requests sanctions in the amount of $2,685.00.

Plaintiff’s counsel stated as follows, “I spent 2.75 hour researching and preparing this motion to compel. My billing rate on this matter is $500.00 per hour. This is substantially below my normal hourly rate of $650 per hour for this type of litigation. This hourly rate is reasonably given the complexities of this case and that I have been practicing law as a litigator for over 30 years. I anticipate spending an additional 1.5 hours reviewing the opposition brief and preparing the reply brief, and an additional hour preparing for and attending the hearing. In addition, Plaintiff has paid $60 to file this motion.” (Decl. Rosen ¶8.)

Opposition also requested sanctions. Opposition requested sanctions under 1987.2.

Oppo’s declaration states:

Plaintiff’s bad faith conduct in (1) serving a deposition subpoena with a unilateral date; (2) demanding mid-December dates, with an improper ultimatum, knowing Mr. Tchakian’s counsel was out of the country; (3) filing this improper motion to compel with a hearing date necessitating Mr. Tchakian to prepare an opposition during the holidays; and (4) refusing to accept Mr. Tchakian’s offer to appear for a limited deposition regarding standing in January or February 2023 has result in attorneys’ fees in the amount of $3,185.00 to oppose this motion.

 

I am a senior associate at Salisian | Lee LLP, and I have been practicing law for more than eight years. My hourly rate is $455 per hour which is my usual rate for matter like this. I spent approximately 4.5 hours reviewing the motion, researching, and preparing this opposition. This does not include time for attempting to discuss this issue with Mr. Rosen or finalizing this opposition to file. I reasonably anticipate spending 1.5 hours review the reply brief and preparing for the hearing and an additional hour at the hearing. Thus, I anticipate, at a minimum, spending 7 hours related to opposing this motion for a total of $3,185.00.

 

(Sanchez Decl. ¶¶3-4.)

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).)

Here, the Court exercises its discretion in not awarding sanctions to either party.