Judge: David A. Rosen, Case: BC550144, Date: 2023-04-14 Tentative Ruling

Case Number: BC550144    Hearing Date: April 14, 2023    Dept: E

Hearing Date:  04/14/2023 – 2:00pm

Case No: BC550144   

Case Name: ARMAN YEGIYANTS v. HAGOP BARDAKJIAN ET AL.

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION AND PRODUCE DOCUMENTS OF NONPARTY

Moving Party: Plaintiffs, Arman Yegiyants and 10415 Commerce LLC

Responding Party: No Opposition

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

Moving Papers: Motion; Proof of Service; Proposed Order

Trial Date: 05/01/2023 – thus, the Discovery cutoff may moot this motion. CCP 2024.020. Court will hear argument.

RELIEF REQUESTED
Plaintiffs, Arman Yegiyants and 10415 Commerce LLC move for an order compelling Fares Salman Abassi, a non-party, to produce documents and to appear at his deposition.

Plaintiffs move on the grounds that Abassi was served with (A) a subpoena to produce documents on February 7, 2023 (Records Subpoena) and (B) a subpoena to appear for his deposition on February 9, 2023 (Deposition Subpoena) and Abassi did not produce any documents nor did he appear for his deposition.

ANALYSIS
Plaintiffs move to compel non-party, Abassi, to produce the requested documents in his Records Subpoena and move to compel Abassi to appear for his deposition. Plaintiffs provide proof that they caused Abassi, the third party, to be personally served with a Deposition Subpoena for Production of Business Records with a production date of February 7, 2023, and Plaintiffs allege that Abassi never produced the requested documents. Further, Plaintiffs properly served a Deposition Subpoena for Personal Appearance on Abassi with a deposition date of February 9, 2023, and Plaintiffs allege that Abassi never appeared.

Plaintiffs move under CCP §2025.450(a).

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, Plaintiffs seek an oral deposition and production of business records.

CCP §2020.010 states as follows:

(a) 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).

(2) A written deposition under Chapter 11 (commencing with Section 2028.010).

(3) A deposition for production of business records and things under Article 4 (commencing with Section 2020.410) or Article 5 (commencing with Section 2020.510).

(b) Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena.

(CCP §2020.010(a)-(b).)

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, Plaintiffs showed good cause in the moving papers to compel the requested documents and oral deposition. With respect to the oral deposition, Plaintiffs must comply with the following part of CCP §2025.450(b)(2) since the Abassi did not attend the deposition, “..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, Plaintiffs’ counsel’s declaration does not technically state he contacted the deponent to inquire about the nonappearance. The Declaration states, “Despite numerous follow-ups by me, Abassi and his son have not responded.” (Decl. David ¶10.) Further, in the emails attached to Plaintiffs’ counsel’s motion in Exhibit 5, Plaintiffs do not technically inquire about the nonappearance to Abassi. Instead, Plaintiffs request for additional possible days to depose Abassi, i.e., the emails do not expressly note that Plaintiffs inquired to Abassi about the nonappearance, but that is the clear implication of the communications.

2025.450(a) is the proper code section upon which to base this attempt to compel the oral deposition.   However, 2025.450(a) does not appear to apply to a records subpoena.

CCP §2020.010 states as follows:

(a) 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).

(2) A written deposition under Chapter 11 (commencing with Section 2028.010).

(3) A deposition for production of business records and things under Article 4 (commencing with Section 2020.410) or Article 5 (commencing with Section 2020.510).

(b) Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena.

(CCP §2020.010(a)-(b).)

2020.010(a)(3), production of business records and things, mentions proceeding under 2020.510 or 2020.410. Plaintiffs appear to have failed to move appropriately as to compelling the production of documents, as their Motion is based only upon 2025.450(a), but the Court notes that it may consider this Motion with respect to documents subpoenaed from a third party per CCP sect. 1987.1.

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, no sanctions were requested, making the imposition of sanctions unjust.

TENTATIVE RULING

The Court will hear argument.