Judge: Gregory Keosian, Case: 20STCV27718, Date: 2023-02-01 Tentative Ruling

Case Number: 20STCV27718    Hearing Date: February 1, 2023    Dept: 61

Defendants Skyhigh Valencia, LLC, Robert Rafia, Mahmoud Malakafazali, and Ron Tucker’s Motion to Compel Deposition of Plaintiff Old Road Realty, LLC’s Person Most Knowledgeable is GRANTED. No sanctions are awarded.

I.      MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Defendants Skyhigh Valencia, LLC, Robert Rafia, Mahmoud Malakafazali, and Ron Tucker (Defendants) move to compel the deposition of Plaintiff Old Road Realty, LLC’s (Plaintiff) person most knowledgable (PMK). Defendants contend that a notice of deposition was served on October 5, 2022, with a deposition scheduled on October 20, 2022, but that Plaintiff served objections and refused to appear. (Roshan-Zamir Decl. ¶¶ 7–9.)

Plaintiff in opposition objects that the motion is untimely in relation to the discovery-motion cut-off date, and further that the motion is moot in any event, as the court has already ordered the deposition of Plaintiff’s PMK on October 17, 2022, in response to Defendants’ ex parte application to continue trial. (Opposition at pp. 2–4.) Plaintiff further argues that Defendant Skyhigh can neither bring the motion nor conduct a deposition as it has been suspended by the Franchise Tax Board. (Kolber Decl. Exh. G.) Plaintiff finally argues that although this court previously ordered the deposition to occur, it did not order Plaintiff to produce documents.

Plaintiff’s arguments are unpersuasive. The motion is not moot, despite this court’s prior order to compel the deposition of Plaintiff’s PMK, because Plaintiff acknowledges that neither appeared for the scheduled January 25, 2023 deposition nor produced documents for same. (Kolber Decl. ¶¶ 4–5.) Nor does Plaintiff explain why the production of documents ought to be excluded from the ambit of this court’s order of October 17, 2022 directing that the deposition be completed.

That same order renders Plaintiff’s arguments as to untimely nature of the motion unpersuasive. The discovery motion cut-off in this action would have been 15 days before the initial date of trial, which was scheduled for November 22, 2022. (Code Civ. Proc. § 2024.020, subd. (a).) Thus this motion, with its original scheduled date of January 4, 2023, would have been untimely. Yet discovery deadlines may be reopened upon a showing of necessity, diligence, and absence of prejudice. (See Code Civ. Proc. § 2024.050, subd. (a), (b).) And this court in its October 17, 2022 order directed that the discovery deadlines were extended for the limited purpose of completing certain named objectives, including specifically the completion of Plaintiff’s PMK deposition. The fact that discovery deadlines have been expressly extended for the specific purpose of obtaining this deposition constitutes a solid basis to find necessity, diligence, and the lack of prejudice necessary to permit the present hearing under Code of Civil Procedure § 2024.020.

Plaintiff last argues that Defendant Skyhigh cannot bring this motion or depose Plaintiff because it is a suspended corporation. (Opposition at p. 3.) In this respect it is correct. A suspended corporation may not, among other things, “prosecute or defend an action, seek a writ of mandate, appeal from an adverse judgment, or renew a judgment obtained before suspension.” (Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552.)[1] However, Skyghigh is not the only party bringing this motion, which is also brought by individual defendants Robert Rafia, Mahmoud Malakafazali, and Ron Tucker.

The motion is therefore GRANTED.

II.             SANCTIONS

If a court grants a motion to compel arbitration, the court must impose a monetary sanction, unless the motion was opposed with substantial justification

Defendants seek $3,560.00 in sanctions, representing seven hours of attorney work at $500 per hour, plus a $60 filing fee. (Roshan-Zamir Decl. ¶¶ 19–20.) Plaintiff seeks $3,394.15 in sanctions, representing 6.7 hours of attorney work and $44.15 in attorney service fees. (Kolber Decl. ¶ 6.) No sanctions are awarded, as the motion was opposed with substantial justification.