Judge: David A. Rosen, Case: BC654195, Date: 2023-02-17 Tentative Ruling
Case Number: BC654195 Hearing Date: February 17, 2023 Dept: E
Hearing Date: 02/17/2023 – 10:00am
Case No:BC654195
Trial Date: 03/20/2023
Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR
COMPANY et al.
TENTATIVE RULING - MOTION
TO COMPEL FURTHER RESPONSES RE: NON-PARTY DEPOSITION SUBPOEANA FOR PRODUCTION
OF BUSINESS RECORDS
Moving Party: Intervenor, Empire Fire and Marine Insurance Company
Responding Party: Non-Party,
Kevin Kelley
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;
Proposed Order; Linhardt Declaration; Separate Statement; Request for Judicial
Notice
Opposition: Opposition
of Non-Party Kevin Kelley
Reply: Request to
Strike Untimely Opposition; Supplemental Linhardt Declaration
The Court considers
all moving, opposing, and reply papers.
RELIEF REQUESTED
Intervenor, Empire Fire
and Marine Insurance Company will and herby does move for an order compelling
compliance with and production of records under the deposition subpoena for
production of business records served upon third-party B&D Law Group.
This
motion is brought pursuant to CCP 1987.1 and 2025.480(a). Intervenor alleges
that the subpoena seeks clearly relevant documents from discovery in another
action about a car collision involving Defendant Izat Murataliev and Harutyun
Ajaryan, which are the same two individuals involved in renting and driving the
Enterprise Rent-A-Car vehicle that collided with the vehicle carrying Plaintiff
Donara Grigoryan in this case. Despite stating that they intended to produce at
least some of the requested documents, B&D has failed to provide a single
document or Code-compliant responses to Empire’s subpoena. Moreover, Empire’s
discovery is integral to the Court’s order in this case allowing Empire to
issue limited third-party document discovery.
BACKGROUND
This case arises from a
motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway
in Los Angeles, California wherein Defendant, Izat Murataliev driving a rental
vehicle owned and rented by Defendant Enterprise smashed into the back of a
vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As a result of
the accident, Plaintiff sustained injuries and on March 15, 2017, brought this
action to recover for the damages sustained. Plaintiff brought suit against the
driver Izat Murataliev as well as Defendants Enterprise Rent-A-Car of Los
Angeles who provided the rental vehicle to the driver, and EAN Holdings, LLC.
Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor
and filed a Complaint in Intervention.
Further, according to
Intervenor’s introduction, Murataliev was not the renter of the Enterprise car;
instead, Harutyan Ajarayan had rented the car for Murataliev. Intervenor
alleges that after Empire intervened in this case earlier this year, Empire’s
counsel learned that five months before our “accident,” Murataliev, driving a
car procured for him by Ajarayan—a BMW 750, which had no license plates and
which neither Murataliev nor Ajaryan owned—hit another car in which an occupant
later filed suit claiming injury. That case was filed in Los Angeles Superior
Court as Kevin Kelley v. Izat Murataliev, et al., LASC Case No. BC652521 (the
“Kelley Case”).
Given the unusual
similarity of the underlying facts, Empire believes that evidence generated
during or uncovered in the Kelley Case likely will support Empire’s theory of
its case here—namely, that Murataliev and Ajaryan were fraudsters and
co-schemers; that the two had a history of attempted frauds involving car
accidents; and that the July 21, 2015 crash was the product of a staged
accident insurance fraud scheme involving numerous individuals with a
documented history of defrauding insurance companies.
The instant motion
pertains to Empire seeking documents regarding the Kelley case from B&D Law
Group, which represents plaintiff Kevin Kelley.
The Deposition subpoena
for production of documents sought as follows:
The documents sought
pursuant to this subpoena do not and shall not include (a) any medical records
or information that would otherwise be protected by HIPAA or comparable state
law; (b) any attorney-client privileged communications; or (c) any
attorney-work product.
1. All non-privileged
documents relating to or generated in connection with the lawsuit entitled
Kevin Kelley v. Izat Murataliev, et al., Los Angeles Superior Court Case No.
BC652521 (the “Kelley Action”), including but not limited to the following: all
pleadings served or filed in the Kelley Action; written discovery served or
received in the Kelley Action: document productions made or received in the
Kelley Action; law and motion records; non-medical expert reports; deposition
records including recordings (video and/or audio), written transcripts, and
exhibits; correspondence; and trial records including but not limited to
transcripts, exhibits, demonstrative aids, and trial transcripts.
2. All non-privileged
documents and communications relating to all investigations conducted in
connection with the claims and allegations asserted in the Kelley Action.
ANLAYSIS
As a preliminary matter,
Intervenor moves under CCP §2025.480(a) and 1987.1. Confusingly, the Intervenor does not make
clear how it met the requirements of either statute.
In any event, the
following statutes provide as follows:
CCP §2025.480(a)-(c)
(a) 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.
(b) This motion
shall be made no later than 60 days after the completion of the record of the
deposition, and shall be accompanied by a meet and confer declaration under
Section 2016.040.
(c) Notice of this
motion shall be given to all parties and to the deponent either orally at the
examination, or by subsequent service in writing. If the notice of the motion
is given orally, the deposition officer shall direct the deponent to attend a
session of the court at the time specified in the notice.
Here, Intervenor does
not state how it met the timeliness requirements under 2025.480(b). However,
according to the Court’s calculation, Intervenor timely moved under 2025.480(b)
because B&D served objections on November 7, 2022 and the instant motion
was made on 12/20/2022. Therefore, the motion appears to have been made no
later than 60 days after objections were served.
Further, Intervenor appears
to have met the meet and confer requirement of 2025.480(b) based on paragraphs 9-10
of the Linhardt declaration.
CCP §1987.1
“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).)
Discussion
Non-Party
asserted seven objections to each of the two requests.
The Court does not find the first objection as to
indefinite time and scope/overbreadth to be a valid objection.
The Court does not find the second objection as to harassment/equally
available to be valid.
The Court does not find the third objection as to
vague/ambiguous/unintelligible to be a valid objection.
The Court does not find the fourth objection as to
privacy to be a valid objection.
The Court does not find the fifth objection as to third
party privacy to be a valid objection.
The Court does not find the sixth objection as to the
collateral source rule to be a valid objection.
The Court does not find the seventh objection as to
attorney-client privilege/work-product to be a valid objection.
In particular as to the sixth and seventh objections,
the Court finds these objections invalid based of the language in the subpoena
that limits the requests to non-privileged documents.
In considering the late Opposition, the Court does not
find Opposition’s arguments on privacy rights of third parties to be convincing,
with the exception of the fact that social security numbers would have to be
redacted.
The Court is not persuaded by Opposition’s ample
opportunity argument.
Further, the Court is not persuaded by Opposition’s
argument that Empire has no right to documents reflecting attorney-client
communications and work-product because the subpoena expressly did not ask for
anything privileged.
Also, the Court finds the objections as to vagueness,
ambiguity, and overbreadth to be unpersuasive.
Finally, the Court finds the objections as to lack of
proper service unpersuasive based on the Reply’s argument that B&D, whose
records were subpoenaed, had only one consumer or client to protect – Mr.
Kelley. Mr. Kelley was timely served consumer notice of this subpoena before
B&D was to produce records. Neither Mr. Murataliev (now deceased), Mr.
Ajaryan, nor even Ms. Arakelian, were ever represented by the recipient of the
subpoena, B&D; therefore, Intevenor/subpoenaing party/movant had no duty to
notify them of a subpoena which did not, by definition, seek any personal or
private records of these three persons.
TENTATIVE RULING
Motion
to compel further responses to the non-party deposition subpoena is GRANTED,
with the exception that social security numbers are to be redacted.
Sanctions
“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 compel an answer or
production, 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.” (CCP §2025.480(j)
Although Intervenor requested sanctions of $10,000.00
in its “conclusion” section of the moving papers, Intervenor did not request
sanctions in the notice of the motion, as our law requires. Further, in the
Court’s view, imposing a sanction on the non-party here would be unjust.
Sanctions are DENIED.
Request for Judicial Notice
Intervenor’s
requests for judicial notice of Exhibit A, B, and C are granted.