Judge Holly J. Fujie, Case BC562564 2023-01-03 Tentative Ruling

RESPONDING PARTY: Defendants Edward Younan and Avalon Foods, Inc. (collectively, “Defendants”)

The Court has considered the moving, opposition and reply papers. The Court exercises its discretion and has considered Defendants’ opposition (the “Opposition”) notwithstanding that it was filed one day after the deadline set forth by California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action arises out of injuries Plaintiff sustained after being struck by a car while he was working. On August 3, 2022, the Court granted Defendants’ motion to take the depositions of three witnesses. One of the witnesses the Court, including that of Defendant Philma Alvarez (“Alvarez”).[1]

On October 24, 2022, Plaintiff filed a motion for a protective order (the “Motion”) to preclude Defendants from proceeding with Alvarez’s October 25, 2022 deposition without Plaintiff’s attendance and to stay the deposition.

Under CCP section 2025.420, subdivision (a), before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.¿ (CCP § 2025.420,¿subd. (a).)¿ The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.¿ (CCP § 2025.420,¿subd. (b).)¿

On October 12, 2022, Defendants served a subpoena for Alvarez to be deposed on October 25, 2022. (See Declaration of Alin Ghayvandian (“Ghayvandian Decl.”) ¶ 3, Exhibit 1.) On October 20, 2022, Plaintiff’s counsel informed Defendants’ counsel that Plaintiff’s lead trial counsel Boris Treyzon (“Treyzon”) would be unavailable to appear at the deposition on that date and served a formal objection on the same basis. (See Ghayvandian Decl. ¶¶ 4-5, Exhibits 2-3.) During meet and confer efforts, Defendants’ counsel offered to postpone the deposition until October 27, 2022. (See Ghayvandian Decl. ¶¶ 6-11, Exhibits 4-5.) Plaintiff’s counsel communicated that Treyzon was unavailable on October 27, 2022 because he would still be mourning his wife’s death, which is religiously observed for at least seven days after the burial. (See id.) Defendants’ counsel indicated that because Alvarez had been living in El Salvador and planned to return to El Salvador to live there permanently shortly after her deposition date, they would proceed with conducting the deposition as noticed. (See id.)

The Opposition presents evidence that Alvarez’s deposition proceeded on October 25, 2022. (Declaration of Andrei Serpik (“Serpik Decl.”) ¶ 10, Exhibit D.) Treyzon and another attorney appeared on Plaintiff’s behalf during the deposition. (Id.) During her deposition, Alvarez testified that she had been living in El Salvador and planned to return there on October 28, 2022. (Serpik Decl., Exhibit D at 8:16-9:3.)

Plaintiff’s reply (the “Reply”) requests that the Court strike Alvarez’s deposition testimony. The Court declines to do so. First, this relief was not requested in the Motion. Second, the record shows that Plaintiff was represented during Alvarez’s deposition. Although the Court is sympathetic to Treyzon’s loss and the burden he faced to appear at the deposition, there is no evidence that another attorney could not have appeared on Plaintiff’s behalf. Nor is there evidence that Defendants acted in bad faith. The Court therefore DENIES the Motion.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Default was entered against Alvarez on February 9, 2015.