Judge: Gregory Keosian, Case: BC678400, Date: 2022-12-12 Tentative Ruling

Case Number: BC678400    Hearing Date: December 12, 2022    Dept: 61

Defendant and Cross-Complainant Leila Afifi’s Motion to Compel Deposition of Steven Hartunian as Plaintiff and Cross-Defendant USC Investments, LLC’s Person Most Qualified is GRANTED. Sanctions are awarded against USCI and its counsel of record in the amount of $7,158.90.

Cross-Complainant to give notice.

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).)

Defendant and Cross-Complainant Leila Afifi (Defendant) moves to compel the deposition of Plaintiff and Cross-Defendant USC Investments, Inc.’s (USC) person most qualified (PMQ). A deposition of USC’s PMQ was held on September 23, 2022, but the person deposed was general counsel for USC, Jeffrey Anastas (Anastas), who indicated in response to various questions that his knowledge of the relevant categories was secondhand, derived from reviewing discovery in this matter and interviewing Patricia and Steven Hartunian, the latter of whom is USC’s sole member and manager. (Faryan Afifi Decl. ¶ 5.)

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

(Code Civ. Proc. § 2025.230.)

USC contends that it complied with its obligation under the above statute to provide a PMQ, and that Anastas’s testimony was sufficient, based on his testimony concerning his investigation of the matters under discussion. (Opposition at pp. 2–3.) USC further contends that Defendant has had ample opportunity to depose Steven Hartunian since the parties began discussing depositions in December of last year. (Opposition at pp. 3–4.)

Defendant has shown that USC failed to comply with its obligation to designate the officer “most qualified to testify on its behalf” with regard to the categories under discussion. The deposition notice concerned the claims and defenses in this case; USC’s discovery responses; details of the property in question and interactions between USC and the Afifis. (Afifi Decl. Exh. 1.) USC’s prior discovery responses and Anastas’ own testimony indicate that Steven Hartunian has far greater personal knowledge of the relevant categories than Anastas. Hartunian verified USC’s First Amended Complaint in this action. Up until 2022, he verified USC’s discovery responses, in which he offered information relevant to the categories under discussion, and affirmed that he lived on the property in question. (Afifi Decl. Exh. 4–8.) Although Anastas testified that he investigated matters prior to appearing for deposition, his personal knowledge consisted of a visit to the property, reviews of discovery materials, and interviews with the Hartunians. (Afifi Decl. Exh. 2 at pp. 15–16, 35–36.) He conceded that he made no decisions relevant to the property or issues under discussion, and in multiple instances confirmed that when USC made a decision with regard to its property, it was Hartunian who made it, at one point stating, “[If there is a human being [making the decision] it would have been Steven Hartunian.” (Afifi Decl. Exh. 2 at p. 65.) Hartunian, being an officer or director of USC living on the property in question and having personal knowledge of the categories at issue, as attested to in his prior discovery responses, ought to have been designated the PMQ with respect to these categories.

USC contends that Defendant cannot choose its PMQ, and that having produced one, it cannot be compelled to produce another. (Opposition at pp. 5–6.) This argument is unsupported by authority. Code of Civil Procedure § 2025.230 places the responsibility for producing the person “most qualified” upon the responding entity. It does not follow that an entity may present anyone it chooses. The potential for a motion to compel the appearance of such a person has been endorsed in a leading treatise. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:476 [endorsing monetary sanctions “against an entity for designating someone lacking knowledge of all matters specified in the notice”].) Defendant’s conduct in this instance amounts to a failure “to appear for deposition” under Code of Civil Procedure § 2025.450, for which Defendant may obtain an order compelling the appearance of a genuine PMQ — in this case, Steven Hartunian.

Defendant also seeks an order that any such deposition be conducted in person, rather than remotely, as Anastas’ deposition was. (Motion at pp. 13–14.) The request is based on instances in which Anastas responded to simple questions — such as when he spoke to a person — with nonresponsive verbiage, sometimes extending for pages, before offering a simple answer like, “Wednesday.” (Afifi Decl. Exh. 2 at pp. 15–16; 27–28; 35–37.) Defendant’s counsel states that before an answer was given, it often appeared to him that Anastas was looking to an off-screen source, and that when he asked Anastas to rotate his camera, it revealed USC’s lawyer sitting nearby, whose image in the Zoom meeting was blacked out, and who had not previously disclosed that he was in the same room as Anastas. (Afifi Decl. ¶¶ 13–16.) This court, however, cannot corroborate the observations of Defendant’s counsel. And while the instances in which Anastas offered long-winded answers are unusual, they do not appear in the transcript with a frequency suggestive of misconduct.

Accordingly, the motion to compel deposition is GRANTED. There is no need to impose terminating, issue, or evidentiary sanctions, as Defendant seeks in this motion. (Motion at pp. 11–12.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 922.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Ibid.) Here, Defendant’s interests are adequately protected by the orders and sanctions appropriate to an ordinary motion to compel deposition.

II.             SANCTIONS

If a motion to compel deposition is granted, “the court shall impose a monetary sanction . . .  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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Defendant here asks for $14,085.59 in sanctions, representing $2,207.90 for the deposition recorder, plus 14.5 hours of attorney work in relation to this motion at $815 per hour. (Afifi Decl. ¶¶ 22–23.)

Defendant is awarded $7,158.90 in sanctions against USC and its counsel. (1 hour for reply, 1 hour for appearance, 4 hours preparation of motion, $2207.90 deposition reporter cost, at $815 an hour.)