Judge: Frank M. Tavelman, Case: 23BBCV00532, Date: 2023-11-17 Tentative Ruling

Case Number: 23BBCV00532    Hearing Date: November 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DEPOSITION ANSWERS

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian, individually and as successor in interest of the estate of Joseph Shafrazian (“Decedent”) (collectively “Plaintiffs’) bring this action against Natalie Gold, Inc. dba Burbank Tower Pharmacy (“Tower Pharmacy”), WellRx, Inc. dba Wellness Lab, and Artin Aghakhani (“Aghakhani”) (collectively “Defendants”). Plaintiffs allege Defendants negligently failed to deliver Decedent’s prescriptions for a heart condition, ultimately resulting in his death. Aghakhani is alleged to have been an employee as well as an officer/shareholder of the Burbank Tower Pharmacy during the time of this incident. Decedent passed away on Marh 14, 2022. At some point Tower Pharmacy was sold to WellRx.

Plaintiffs now move for an order compelling Aghakhani to provide answers to questions at second deposition which were objected to at his initial deposition. Aghakhani opposes and Plaintiffs reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 2025.460 sets forth the objections which must be raised at deposition otherwise they are waived:

(a) The protection of information from discovery on the ground that it is privileged or that it is a protected work product under Chapter 4 (commencing with Section 2018.010) is waived unless a specific objection to its disclosure is timely made during the deposition.

(b) Errors and irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, but are not limited to, those relating to the manner of taking the deposition, to the oath or affirmation administered, to the conduct of a party, attorney, deponent, or deposition officer, or to the form of any question or answer. Unless the objecting party demands that the taking of the deposition be suspended to permit a motion for a protective order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection.

(c) Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.

A deponent may not refuse to answer questions on the ground of relevance or based on the form of the question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15.)

II.                 MERITS

At the deposition, counsel for Aghakhani objected to each of Plaintiffs’ questions regarding Aghakhani’s stipulated settlement with the Board of Pharmacy in 2022. Plaintiffs argue that they are entitled to discovery of the accusations made against Aghakhani by the Board of Pharmacy as they may lead to admissible evidence relevant to this case. Aghakhani’s objected on five grounds including (1) relevance, (2) improper character evidence, (3) legal conclusion, (4) violates rights of privacy, (5) privacy of third parties.

As per Stewart and C.C.P. § 2025.460, the only objections upon which Aghakhani’s counsel could have instructed Aghakhani not to answer the questions are the privileges under privacy rights. The relevance of the answers is explicitly established by case law to be invalid grounds for instructing a non-answer. Additionally, the characterization of Aghakhani’s potential answers as improper character evidence has no bearing on the discoverability of the information.

Further, Aghakhani’s opposition contains no discussion of the privileges his counsel asserted at the deposition. Aghakhani bears the burden of justifying these objections and has failed to do so here.

As such, the motion to compel Aghakhani to provide answers to these questions at a second deposition session is GRANTED.

Sanctions

C.C.P. § 2023.030(a) provides:

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

The Court, in its discretion, declines to issue sanctions with respect to this motion. However, the Court reiterates to Aghakhani and his counsel that their objections during the deposition were indeed without merit and should not have been the basis for refusal to answer. If, during the subsequent deposition of Aghakhani, the parties encounter the same or similar issues, they are ordered to call this Department together, and the Court will rule on any dispute and then set an OSC why sanctions should not issue.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian’s Motion to Compel Deposition Answers came on regularly for hearing on November 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL ANSWERS IS GRANTED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFFS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: November 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles 

 LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL FURTHER RESPONSES

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian, individually and as successor in interest of the estate of Joseph Shafrazian (“Decedent”) (collectively “Plaintiffs’) bring this action against Natalie Gold, Inc. dba Burbank Tower Pharmacy (“Tower Pharmacy”), WellRx, Inc. dba Wellness Lab, and Artin Aghakhani (“Aghakhani”) (collectively “Defendants”). Plaintiffs allege Defendants negligently failed to deliver Decedent’s prescriptions for a heart condition, ultimately resulting in his death. Aghakhani is alleged to have been an employee as well as an officer/shareholder of the Burbank Tower Pharmacy during the time of this incident. Decedent passed away on Marh 14, 2022. At some point Tower Pharmacy was sold to WellRx.

Plaintiffs now move for an order compelling Aghakhani’s further responses to their Requests for the Productions of Documents (‘RFPD”), Set One Nos. 1-9, 12, 15, and 17-20.  Aghakhani opposes the motion. Plaintiffs have filed no reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (C.C.P. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party’s subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)  

II.                 MERITS

Meet and Confer

Upon review, the Court finds the meet and confer requirement has been met. (Newman Decl. Exh. 2.)

RFPD Nos. 1-9 and 12

RFPD Nos. No. 1-9 and 12 request Aghakhani to produce documents related to Decedent’s prescriptions. Plaintiffs’ RFPD were served on May 1, 2023. (Newman Decl. Exh. 1.) Aghakhani served his responses to the discovery on August 28, 2023. (Li Decl. ¶ 8.) Aghakhani’s initial production included:

Decedent’s patient profile including all medications dispensed to Decedent from January 3, 2022 through April 10, 2023;

The electronic prescriptions for Nitroglycerin, Plavix and aspirin

The labels printed out for the medications Nitroglycerin, Plavix and aspirin

A review of the responses to the RFPD shows Aghakhani had no objections to production.  Aghakhani has since provided subsequent production on several occasions, including a note involving Decedent’s medications that were not picked up, and the delivery ticket for Decedent’s Nitroglycerin prescription. (Li Decl. ¶¶ 10-12.) Aghakhani also informed Plaintiffs that the patient records for Decedent are in the possession of WellRx, as Aghakhani sold his interest in the pharmacy to them. (Lid Decl. ¶ 10.) Plaintiffs filed this motion to compel further responses on October 16, 2023, however they do not reference any subsequent production.

It is unclear to the Court upon what grounds Plaintiffs bring this motion. A motion to compel further responses to a demand for inspection or production of documents (“RFPD”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).)

Here, Aghakhani has made no claims of inability to comply and has rendered no objections. It appears that Plaintiffs contend Aghakhani has rendered an incomplete statement of compliance however that has not occurred here. A statement of compliance is incomplete if it fails to respond “separately to each item or category of item” or fails to state that the respondent will produce the demanded items as to which no objection is made (CCP §§ 2031.210(a) & 2031.240(a)).

Here, Aghakhani rendered not only a statement of total compliance, but thereafter produced the responsive documents. Plaintiffs’ argument that Aghakhani’s compliance is insufficient because it does not respond separately to each category in the RFPD is unpersuasive. While Aghakhani responded identically to these requests, he did indeed respond to each separately. Aghakhani replied separately to each request that he would supply the documents in his possession that were responsive to these requests.

The Court finds Plaintiffs have failed to state legitimate grounds on which to compel further production in response to these requests. As such, the motion to compel further responses is DENIED as to RFPD Nos. 1-9 and 12.

RFPD No. 15

RFPD No. 15 requests the following:

[A]ny and all non-privileged writings, as that term is defined by Evidence Code 250, between you and the California Board of Pharmacy that in any way relate(s) to your pharmacy license for the time frame 01/01/2020 through the present.

Aghakhani objected on the basis of relevance and directed Plaintiffs to the public posting of his stipulated settlement with the Board of Pharmacy. Aghakhani now argues Plaintiffs have not shown good cause because these communications would not tend to prove or disprove any facts of consequence in this case. The Court finds Aghakhani’s argument unpersuasive.

Plaintiffs allege that Aghakhani was subject to a stipulated surrender of his pharmaceutical license by the Board of Pharmacy in January of 2022. (Newman Decl. Exh. 8.) Plaintiffs argue that the stipulation required Aghakhani to relinquish his license and cease participating in the business within 90 days. (Id.) Plaintiffs also state this 90-day period coincides with when Decedent should have received his prescriptions. The Court finds that this showing is sufficient to establish good cause. Aghakhani’s status as a licensed pharmacist and any incidents which caused the forfeiture of that license appear to reasonably relate to whether Aghakahani was negligent in his alleged failure to administer Decedent’s prescriptions.

Further, the Court finds the objection of relevance to be unfounded. In the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) It must be noted that discovery rules are to be applied liberally “and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653-654.) 

Aghakhani argues that that the accusations issued from the Board of Pharmacy cannot be relevant because they concern incidents which occurred a year prior to the incident in this case. The Court disagrees. Aghakhani makes clear in his own argument that these accusations were based on his alleged mismanagement of pharmaceutical record keeping. The failure to accurately maintain pharmaceutical records appears to the Court likely to reasonably assist Plaintiffs in evaluating their case. Whether or not this information will be admissible upon trial remains to be seen, however it is discoverable.

Accordingly, the motion to compel further responses is GRANTED as to RFPD No. 15.

RFPD Nos. 17-19

RFPD Nos. 17-19 request Aghakhani’s employment profile with WellRx pharmacy and any documents in his possession which reflect the ownership of WellRx from March 14, 2022 to present.

Aghakhani objected to both of these requests on grounds of relevance. Aghakhani argues Plaintiffs have not shown good cause for the production of these documents. The Court agrees.

Plaintiffs argue good cause exists because Aghakhani currently works for WellRx at a pharmacy in the exact same location as Tower Pharmacy. Plaintiff contends any responsive documents will likely reveal agency, ownership, or control of the pharmacy. The Court finds these documents do not have any bearing on Plaintiffs’ claim against Aghakhani. Plaintiff’s’ claims of wrongful death stem from the alleged failure to administer prescriptions by Tower Pharmacy in March of 2022. The Court does not find that the employment of Aghakhani or ownership of Tower Pharmacy by WellRx subsequent to Decedent’s passing would tend in reason to prove or disprove any fact in this case.

Accordingly, the motion to compel further responses is DENIED as to RFPD Nos. 17-19

RFPD No. 20

RFPD No. 20 requests any writings that show the ownership of Natalie Gold, Inc. and Burbank Tower Pharmacy from March 14, 2021 to March 14, 2022.

Aghakhani responded to this request by stating it would produce “the electronic prescriptions from Dr. Arsen Hovanesyan, the patient profile for Joseph Shafrazian and labels for the medications for the medications.” Unlike RFPD Nos. 1-9, where this same language was used, here it is clear that the response is an incomplete statement of compliance. Aghakhani’s responses do not relate to the document request. To the extent that Aghakhani now states that the request is irrelevant, the Court notes that no objections were served with his initial responses as required by C.C.P. § 2031.300(a). Further, the Court finds good cause has been shown to compel the production of responsive documents. The ownership of the Burbank Tower Pharmacy during the time in which decedent’s prescriptions were serviced by them is directly related to the issues of liability in this case.

Accordingly, the motion to compel further responses is GRANTED as to RFPD No. 20.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian’s Motion to Compel Further Responses to Requests for Production of Documents came on regularly for hearing on November 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTSIS GRANTED IN PART AND DENIED IN PART.

THE MOTION IS GRANTED AS TO RFPD NOS. 15 & 20.

THE MOTION IS DENIED AS TO RFPD NOS. 1-9, 12, AND 17-19.

IT IS SO ORDERED. 

DATE: November 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles 

 LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DISCOVERY RESPONSE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian, individually and as successor in interest of the estate of Joseph Shafrazian (“Decedent”) (Collectively “Plaintiffs’) bring this action against Natalie Gold, Inc., dba Burbank Tower Pharmacy (“Tower Pharmacy”), WellRx, Inc., dba Wellness Lab, Artin Aghakhani, Karina Nazarian (“Nazarian”), and Linda Nguyen (“Nguyen”) (collectively “Defendants”). Plaintiffs allege the negligence of Defendants in delivering Decedent’s prescriptions for a heart condition, ultimately resulting in his death.

Before the Court is a motion by Plaintiffs to compel Tower Pharmacy, Nazarian, and Nguyen to provide initial responses to Plaintiffs’ Form Interrogatories, Special Interrogatories, and Requests for Production (Sets One and Two). Tower Pharmacy, Nazarian, and Nguyen (“Opposing Parties”) oppose the motion. Plaintiffs have not filed a reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (C.C.P. § 2030.290(b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.) 

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response.  (C.C.P. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (C.C.P. § 2031.300, (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (C.C.P. § 2023.030(a).)

The Court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. § 2030.290(c).) The same is true for a motion to compel a response to a demand for the production of documents. (C.C.P. § 2031.300(c).)

II.                 MERITS

Request to Compel Responses

Plaintiffs submitted evidence they propounded their Form Interrogatories, Special Interrogatories, Requests for the Production of Documents on each of the Opposing Parties on May 1, 2023, via e-mail upon counsel Fang Li (“Li”). (Vaage Decl. ¶ 4.) On August 3, 2023, Plaintiffs’ counsel contacted Li indicating no responses were ever received. (Vaage Decl. ¶ 5.) Li informed Plaintiffs’ counsel that the matter was inadvertently not calendared, and that he would try to get the responses. (Vaage Decl. ¶ 6.) Plaintiffs’ counsel states that, as of filing the motion, no responses were received from any of the Opposing Parties. (Vaage Decl. ¶¶ 8-11.)

The Court notes this motion was filed on October 31, 2023. On October 20, 2023, Plaintiffs filed an ex parte application to shorten the time of hearing for this motion. (Li Decl. ¶ 4.) The ex parte application was heard on October 23, 2023. At this hearing Li represented that he would have discovery responses shortly. (Li Decl. ¶ 6.)

According to Li, for several months Nazarian did not respond to his attempts to contact her; she responded to counsel on October 19, 2023. (Li Decl. ¶ 3.) As Li represented at the ex parte hearing, Nazarian and Tower Pharmacy subsequently served responses to written discovery on October 31, 2023. (Li Decl. ¶ 8.) As to Nguyen, Li states his office has lost all contact. Li states he is attempting to locate Nguyen, going so far as to engage an investigator. (Li Decl. ¶ 9.)

As per Nazari and Tower Pharmacy’s service of the verified responses to Form Interrogatories, Special Interrogatories and Requests for Production of Documents (Set One and Two) the motion to compel those responses is moot.

The motion to compel responses of Nguyen remains and is GRANTED.

Sanctions

As concerns motions to compel, the law only requires sanctions in the event that a party unsuccessfully makes or opposes a motion to compel a response. (C.C.P. §§ 2031.300 & 2031.290.) As such, any other monetary sanctions granted are within the discretionary power of the Court as per Code of Civil Procedure § 2030.290.

Here, Plaintiff’s motion with respect to Nazarian and Tower Pharmacy was ultimately rendered moot as a result of subsequent production. Regardless, the fact remains that it was Plaintiffs’ filing of this motion that resulted in this production taking place. Li states in his declaration that Nazarian was unresponsive for some time, but he does not attach any of his attempts to reach her by email or text to his declaration. Further, Li does not dispute the statement in Vaage’s declaration that Li’s office inadvertently failed to calendar discovery. 

Given this course of events, the Court finds sanctions are warranted in the amount of $2,800. This amount reflects the rates and hours attested to in the Vaage declaration of both Robert Vaage and his associate Broc Newman, less the time estimated to prepare a reply as none was filed. (Vaage Decl. ¶¶ 12-14.) These sanctions are awarded jointly and severally against Tower Pharmacy, Nazarian, and Nguyen.   Sanctions are due within 30 calendar days.

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RULING:

In the event a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian’s Motion to Compel Discovery came on regularly for hearing on November 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the Court took the matter under submission and issues this revised ruling as follows: 

THE MOTION TO COMPEL DISCOVERY RESPONSES AS TO NATALIE GOLD, INC., DBA BURBANK TOWER PHARMACY AND KARINA NAZARIAN IS MOOT.

THE MOTION TO COMPEL DISCOVERY RESPONSES AS TO LINDA NGUYEN IS GRANTED.

SANCTIONS ARE AWARDED AGAINST TOWER PHARMACY, NAZARIAN AND NGUYEN JOINTLY AND SEVERALLY IN THE AMOUNT OF $2,800.  SANCTIONS TO BE PAID WITHIN 30 DAYS.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFFS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  November 17, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles 

 LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DISCOVERY RESPONSE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian, individually and as successor in interest of the estate of Joseph Shafrazian (“Decedent”) (Collectively “Plaintiffs’) bring this action against Natalie Gold, Inc., dba Burbank Tower Pharmacy (“Tower Pharmacy”), WellRx, Inc., dba Wellness Lab, Artin Aghakhani, Karina Nazarian (“Nazarian”), and Linda Nguyen (“Nguyen”) (collectively “Defendants”). Plaintiffs allege the negligence of Defendants in delivering Decedent’s prescriptions for a heart condition, ultimately resulting in his death.

Before the Court is a motion by Plaintiffs to compel Tower Pharmacy, Nazarian, and Nguyen to provide initial responses to Plaintiffs’ Form Interrogatories, Special Interrogatories, and Requests for Production (Sets One and Two). Tower Pharmacy, Nazarian, and Nguyen (“Opposing Parties”) oppose the motion. Plaintiffs have not filed a reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (C.C.P. § 2030.290(b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.) 

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response.  (C.C.P. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (C.C.P. § 2031.300, (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (C.C.P. § 2023.030(a).)

The Court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. § 2030.290(c).) The same is true for a motion to compel a response to a demand for the production of documents. (C.C.P. § 2031.300(c).)

II.                 MERITS

Request to Compel Responses

Plaintiffs submitted evidence they propounded their Form Interrogatories, Special Interrogatories, Requests for the Production of Documents on each of the Opposing Parties on May 1, 2023, via e-mail upon counsel Fang Li (“Li”). (Vaage Decl. ¶ 4.) On August 3, 2023, Plaintiffs’ counsel contacted Li indicating no responses were ever received. (Vaage Decl. ¶ 5.) Li informed Plaintiffs’ counsel that the matter was inadvertently not calendared, and that he would try to get the responses. (Vaage Decl. ¶ 6.) Plaintiffs’ counsel states that, as of filing the motion, no responses were received from any of the Opposing Parties. (Vaage Decl. ¶¶ 8-11.)

The Court notes this motion was filed on October 31, 2023. On October 20, 2023, Plaintiffs filed an ex parte application to shorten the time of hearing for this motion. (Li Decl. ¶ 4.) The ex parte application was heard on October 23, 2023. At this hearing Li represented that he would have discovery responses shortly. (Li Decl. ¶ 6.)

According to Li, for several months Nazarian did not respond to his attempts to contact her; she responded to counsel on October 19, 2023. (Li Decl. ¶ 3.) As Li represented at the ex parte hearing, Nazarian and Tower Pharmacy subsequently served responses to written discovery on October 31, 2023. (Li Decl. ¶ 8.) As to Nguyen, Li states his office has lost all contact. Li states he is attempting to locate Nguyen, going so far as to engage an investigator. (Li Decl. ¶ 9.)

As per Nazari and Tower Pharmacy’s service of the verified responses to Form Interrogatories, Special Interrogatories and Requests for Production of Documents (Set One and Two) the motion to compel those responses is moot.

The motion to compel responses of Nguyen remains and is GRANTED.

Sanctions

As concerns motions to compel, the law only requires sanctions in the event that a party unsuccessfully makes or opposes a motion to compel a response. (C.C.P. §§ 2031.300 & 2031.290.) As such, any other monetary sanctions granted are within the discretionary power of the Court as per Code of Civil Procedure § 2030.290.

Here, Plaintiff’s motion with respect to Nazarian and Tower Pharmacy was ultimately rendered moot as a result of subsequent production. Regardless, the fact remains that it was Plaintiffs’ filing of this motion that resulted in this production taking place. Li states in his declaration that Nazarian was unresponsive for some time, but he does not attach any of his attempts to reach her by email or text to his declaration. Further, Li does not dispute the statement in Vaage’s declaration that Li’s office inadvertently failed to calendar discovery. 

Given this course of events, the Court finds sanctions are warranted in the amount of $2,800. This amount reflects the rates and hours attested to in the Vaage declaration of both Robert Vaage and his associate Broc Newman, less the time estimated to prepare a reply as none was filed. (Vaage Decl. ¶¶ 12-14.) These sanctions are awarded jointly and severally against Tower Pharmacy, Nazarian, and Nguyen.   Sanctions are due within 30 calendar days.

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RULING:

In the event a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Rima Shafrazian, Gevik Shafrazian, and Greta Shafrazian’s Motion to Compel Discovery came on regularly for hearing on November 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the Court took the matter under submission and issues this revised ruling as follows: 

THE MOTION TO COMPEL DISCOVERY RESPONSES AS TO NATALIE GOLD, INC., DBA BURBANK TOWER PHARMACY AND KARINA NAZARIAN IS MOOT.

THE MOTION TO COMPEL DISCOVERY RESPONSES AS TO LINDA NGUYEN IS GRANTED.

SANCTIONS ARE AWARDED AGAINST TOWER PHARMACY, NAZARIAN AND NGUYEN JOINTLY AND SEVERALLY IN THE AMOUNT OF $2,800.  SANCTIONS TO BE PAID WITHIN 30 DAYS.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFFS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  November 17, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles