Judge: John J. Kralik, Case: 21BBCV00016, Date: 2022-12-09 Tentative Ruling
Case Number: 21BBCV00016 Hearing Date: December 9, 2022 Dept: NCB
North Central District
Department B
HEALTH PRO PHARMACEUTICAL CONSULTING AND MANAGEMENT, CORP., D/B/A BELLAIRE PHARMACY, Plaintiff, v.
LUSINE MARDYAN, et al., Defendants. |
Case No.: 21BBCV00016 Hearing Date: December 9, 2022 [TENTATIVE] ORDER RE: (1) MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENAS AND MONETARY SANCTIONS (2) MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY OF DEFENDANT AGM’S PMK AND PRODUCTION OF DOCUMENTS (3) MOTION TO COMPEL DEPOSITION TESTIMONY OF NON-PARTY BILA VARVARA
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BACKGROUND
A. Allegations
Plaintiff Health Pro Pharmaceutical Consulting and Management, Corp. d/b/a Bellaire Pharmacy (“Plaintiff”) is a community retail pharmacy under Dr. Armen Minasian as pharmacist-in-charge as of January 2007. (SAC, ¶15.) Defendant Lusine Mardyan (“Ms. Mardyan”) was Plaintiff’s employee from February 2007 to December 6, 2019. (Id., ¶16.) Defendant Ana Khimonidi (“Ms. Khimonidi”) was also an employee of Plaintiff until her resignation in September 2019. (Id., ¶18.)
Plaintiff alleges that in 2019, Plaintiff reconstructed its management practices such that Defendants no longer had the freedom they enjoyed in the past. (Id., ¶19.) Plaintiff alleges that in mid-October to early-November 2019, Ms. Mardyan expressed to Dr. Minasian that her husband Defendant Arman Adamayan (“Mr. Adamayan”) was pressuring her to stop working and she stated over several occasions that she did not want to babysit at home and instead expressed her interest in running her own pharmacy and began referring to Plaintiff’s patients as “her patients.” (Id., ¶¶20-23.) On the first or second Saturday of November, Dr. Minasian met with Mr. Adamayan where Mr. Adamayan allegedly expressed that he wanted Ms. Mardyan to stay home to care for their 3-year-old son, he was financially secure and did not need Ms. Mardyan to work, and assured Dr. Minasian that there was absolutely no talk of any sort of Ms. Mardyan working anywhere or starting her own pharmacy at the moment. (Id., ¶¶24-28.) Plaintiff alleges that Dr. Minasian observed Ms. Mardyan having quiet conversations with Plaintiff’s patients and delivering medications in her last month, which he assumed was Ms. Mardyan’s way of saying goodbye to patients. (Id., ¶¶29-30.)
Plaintiff alleges that in early January 2020, Dr. Minasian started receiving calls from patients to take them off the monthly refill list because they were changing pharmacies. One patient stated that Ms. Mardyan called them to state she would deliver the medication. (Id., ¶¶33-35.) Plaintiff alleges that it discovered that Mr. Adamayan and Ms. Mardyan’s representations were false on January 10, 2020 and caused a cease-and-desist letter to be sent to Ms. Mardyan to no avail. (Id., ¶¶38-40.) Plaintiff alleges that from January to March of 2021, nearly 200 of Plaintiff’s patients (out of 400) switched to another pharmacy—Defendant OB Medical Supplies & Pharmacy (“OB”). (Id., ¶¶41-42.) In early March, Dr. Minasian saw that Ms. Mardyan had an ad for her new pharmacy, Defendant AGM RX, Inc. dba AGM Pharmacy (“AGM”). (Id., ¶45.) Plaintiff alleges that patients said that Ms. Mardyan, Mr. Adamayan, and AGM hired Ms. Khimonidi and that Ms. Khimonidi was the one contacting patients and telling them about their new location. (Id., ¶46.) Plaintiff alleges that Ms. Mardyan, Mr. Adamayan, Ms. Khimonidi, AGM, OB, and Defendant Kanaka Durga Vadlapatla (“Ms. Vadlapatla”) conspired to take Plaintiff’s patients. (Id., ¶61.)
Plaintiff also alleges that on July 26, 2019 (when Dr. Minasian was on a trip to Armenia), Ms. Mardyan had contacted tech support for the administrative program used by Plaintiff to maintain patient information, without knowledge or consent of Plaintiff, in order to download patient files to benefit herself, Mr. Adamayan, AGM, and OB. (Id., ¶¶50-53.) Plaintiff alleges that Ms. Mardyan again downloaded information on September 24, 2019. (Id., ¶¶54-55.)
The second amended complaint (“SAC”), filed July 1, 2021, alleges causes of action for: (1) fraud and deceit against Ms. Mardyan and Mr. Adamayan; (2) intentional misrepresentation Ms. Mardyan and Mr. Adamayan; (3) negligent misrepresentation against Ms. Mardyan and Mr. Adamayan; (4) unfair business practices against Ms. Mardyan, Mr. Adamayan, AGM, and OB; (5) civil conspiracy against all Defendants; (6) intentional interference with prospective economic relations against Ms. Mardyan, Mr. Adamayan, AGM, and OB; and (7) negligent interference with prospective economic relations against Ms. Mardyan, Mr. Adamayan, AGM, and OB.
On August 25, 2022, Plaintiff dismissed with prejudice Defendant Kanaka Durga Vadlapatla from the complaint.
B. Motions on Calendar
There are three motions on calendar this date.
On October 4, 2022, Plaintiff filed a motion to compel compliance with deposition subpoenas and for monetary sanctions. The motion is not opposed.
On October 10, 2022, Plaintiff filed two ex parte applications. Plaintiff filed an ex parte application for order to compel further deposition testimony of Defendant AGM’s PMK and for the production of documents. Plaintiff also filed an ex parte application for an order to compel deposition testimony of non-party Bila Varvara. On October 12, 2022, the ex parte applications came for hearing. The Court set the hearings on the applications to December 9, 2022. On October 20, 2022, Defendants Mardyan, Adamyan, Khimonidi, and AGM filed a single opposition brief to the motion to compel further deposition testimony of Defendant AGM’s PMK and for the production of documents and the motion to compel Ms. Varvara’s deposition testimony. On December 6, 2022, Plaintiffs filed an untimely reply brief.
DISCUSSION RE MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENAS (T-MOBILE)
Plaintiffs move for an order compelling non-party T-Mobile to comply with the Deposition Subpoenas for Production of Business Records. Plaintiffs also seek $2,560 in attorney’s fees against T-Mobile and its counsel.
By way of background, Defendants had filed a motion to quash the amended deposition subpoena for production of business records propounded on T-Mobile on March 1, 2022. In the amended deposition subpoena, Plaintiffs had sought the production of records related to Adamayan’s phone number 818-571-2552 from the period of January 1, 2018 to December 31, 2019, including: (1) Subscriber information for the above listed numbers (818-571-2552), including financially responsible party, billing address, features, and services and equipment; (2) All call originations, call terminations, call attempts, voice and text message transactions, including push to talk, data communications, SMS and MMS communications, and voice communications, LTE and/or IP sessions and destinations with cell site information, including the originating and receiving phone numbers or network IDs for all incoming and outgoing call transactions, data transactions and push to talk sessions; (3) Records are to include the IMEI, IMSI, or other equipment or handset identification information for the target phone numbers if known; (4) All stored SMS content, MMS content and/or Browser Cache if available; (5) A legend and definition for any and all abbreviations used in the reports provided; (6) An explanation of how to read the call detail records; and (7) Specific information regarding the time stamps/ time zones of the records. On June 17, 2022, the Court granted the motion in part and denied the motion in part, such that request no. 1 was denied and the motion was granted in part as to the nos. 2-7 but limited to the phone numbers specifically identified in the Patient List.
Exhibit A of the motion includes two depositions subpoenas issued on Compex: (1) one pertaining to Lusine Mardyan (818-571-2552) and (2) the other pertaining to Adam Adamayan (818-571-7500).
Plaintiffs argue that they narrowed the deposition subpoena requests and issued it on T-Mobile on July 1, 2022. (Mot., Ex. A.) Plaintiffs argue that their counsel “hounded” Compex (the subpoena company) for records and on September 7, 2022, Compex sent Plaintiff’s counsel an email stating that T-Mobile was objecting to the subpoenas. (Mot. at p.4, Ex. B [re 818-571-7500], Ex. C [re 818-571-2552].) T-Mobile’s objections are dated August 2, 2022 and state:
T-Mobile hereby objects to the referenced legal demand for one or more of the following reasons: a) failure of personal service; b) lack of personal jurisdiction; c) demand is facially invalid; d) demand is overbroad, unduly burdensome and/or not refined in scope or date range; e) demand does not provide reasonable time for response; f) demand seeks electronic records that are not readily accessible; and/or g) demand seeks records that are not stored or maintained by T-Mobile.
Notwithstanding the above objections, and without waiving same, T-Mobile is unable to respond to your request for the following reason(s):
In regard to identifier(s) 8185717500 [and 8185712552], T-Mobile/Metro by T-Mobile is unable to sort call detail records between two or more target numbers. T-Mobile/Metro by T-Mobile is unable to produce only incoming calls, only outgoing calls, or only text messages. Please resubmit a legal demand to include a revised description of records that seeks all call records for the target for a specific date range.
(Mot., Exs. B and C.)
T-Mobile’s general objections appear to be boilerplate in nature and do not specifically object to the subpoena requests at issue. As such, the Court will address T-Mobile’s specific objections. First, T-Mobile objects that no date range was provided, but the subpoenas specified a date range from January 1, 2018 to December 31, 2019.
With respect to T-Mobile’s objection that it cannot sort call records between different numbers, this may be a valid objection based on an internal issue within T-Mobile. While inconvenient, the parties may have to make adjustments to obtain the requested records as delineated in the deposition subpoenas. As such, the Court will order T-Mobile to produce the call records and text messages regarding phone numbers from the period of January 1, 2018 to December 31, 2019 to defense counsel. Defense counsel may redact information that is not relevant to this action and the parties shall be ordered to enter an agreement for a protective order so that Defendants’ phone records will only be reviewed by each party’s counsel for redaction purposes. In light of the ruling on this motion, Plaintiffs’ request for sanctions is denied.
DISCUSSION RE MOTION TO COMPEL DEPOSITION TESTIMONY OF NON-PARTY BILA VARVARA
Plaintiffs move to compel the deposition of non-party Bila Varvara (“Ms. Varvara”). (Plaintiffs state that their counsel made efforts to notify Ms. Varvara of this matter, but to no avail as the person answering the phone did not speak English and only spoke Russian. [Mot. at p.2.]) Plaintiffs argue that they are entitled to take the deposition of a non-party pursuant to CCP § 2020.220. They argue that Ms. Varvara was properly served with the deposition subpoena for personal appearance on September 20, 2022, setting the deposition for September 28, 2022, but that she did not appear to her deposition. (Id., at p.3, Ex. 1 [Deposition Notice], Ex. 2 [Copy of the Affidavit of Non-Appearance].] They argue that Ms. Varvara was Plaintiffs’ former patient who is now AGM’s patient and that she had provided a signed declaration in support of Defendants’ motion for summary judgment. In her declaration, Ms. Varvara states that she had not been contacted by Mardyan or Khimonidi about switching to AGM, but Khimonidi’s phone records show otherwise. Thus, Plaintiffs seek to depose Ms. Varvara to ascertain whether she heard from AGM and why she decided to switch pharmacies.
The deposition subpoena indicates that Ms. Varvara was served on September 20, 2022 by Ken Khalatian (registered California process server) by leaving the documents with Vitaliy Grigorrievskiy (house resident on behalf of Ms. Varvara) at 5255 Zelzah Avenue #101 in Encino. Based on the proof of service of the motion papers, it does not appear that Ms. Valvala was served with the ex parte application or motion papers.
Here, Ms. Varvara was not served with notice of this motion or the hearing date. While defense counsel, Moussa A. Helo, states that efforts were made to call Ms. Varvara to inform her about the ex parte hearing, it does not appear any further efforts were made to provide her notice of the motion or the motion’s new hearing date. As such, the motion will be denied on a procedural basis.
In opposition, Defendants also argue that Ms. Varvara should not be deposed because she is cognitively impaired and is experiencing dementia-related memory loss. Ms. Varvara’s daughter, Elena Grigorievskaya, provides her declaration wherein she states that her mother is 81 years old, primarily speaks Russian and has dementia, and includes a letter by Dr. Victoria Brovsky attesting to Ms. Varvara’s age-related dementia. (Grigorievskaya Decl., ¶¶1-4, Ex. A.) In the alternative, Defendants argue that Plaintiffs have AGM’s list of clients who signed declarations attesting that they were not solicited by Defendants to bring their business to AGM and that Plaintiffs should depose other clients instead.
It is troubling that Ms. Varvara provided her declaration in English in support of Plaintiffs’ position in the recent motion for summary judgment/adjudication when she primarily only speaks Russian and is currently diagnosed with age-related dementia. The credibility of the declarations is not before the Court at this time. The Court should note that it expects counsel to take appropriate responsibility for the credibility of information submitted on law and motion matters.
If the Court were to accept as true Dr. Borovsky’s October 19, 2022 letter that Ms. Varvara has been diagnosed with dementia, the Court would be inclined to deny the motion to compel Ms. Varvara to attend her deposition on a substantive basis. (The Court notes that a separate declaration by Dr. Borovsky made under the penalty of perjury is not provided.) Evidence Code, § 701 states:
(a) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or
(2) Incapable of understanding the duty of a witness to tell the truth.
(b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.
(Evid. Code, § 701.) Given that Dr. Borovsky would have no reason to provide an inconsistent letter, the Court suggests that the parties consider withdrawing Ms. Varvara as a witness and withdrawing the declaration as evidence in this case.
At this time, however, the motion to compel Ms. Varvara to attend her deposition is denied without prejudice. If Plaintiffs intend to refile this motion, they should ensure that the motion papers and the correct hearing date are provided to Ms. Varvara and that she is properly served.
No sanctions were requested and no sanctions will be awarded on this motion.
DISCUSSION RE MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY OF DEFENDANT AGM’S PMK AND PRODUCTION OF DOCUMENTS
Pursuant to CCP §2025.480, “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.” (CCP §2025.480(a).) “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (CCP, §2025.480(i).)
Plaintiffs move to compel the further testimony of AGM’s PMK and the production of documents.
Plaintiffs served the deposition notice September 1, 2022, scheduling the deposition for September 23, 2022. (Mot., Ex. 1.) In the deposition notice, Plaintiffs listed the possible topics for the PMK deposition:
1. Client/customer/patient acquisition;
2. Initial interaction with patient/client/customer;
3. Start dates (including first prescription/medication);
4. Client/customer/patient files;
5. Client/customer/patient medication refills;
6. Frequency of refills;
7. Chronic refills;
8. Processing the chronic refills;
9. Identity of employee who processed the first prescription/refill/medication;
10. Billing process;
11. Monthly/weekly/annual profits from refills and/or customers/patients/clients; and,
12. The depo will focus on the patients identified in the patient list only.
(Mot., Ex. 1.) The deposition notice also sought the following documents:
1. Patient/Client/Customer files or electronic records from July 1, 2019, through May 31, 2020, concerning the patients identified in The Patient List. (The term “CONCERNING” means, without limitation, constituting, containing, showing, reflecting, discussing, relating to, commenting upon, pertaining to, mentioning, evidencing, quoting, describing, or referencing in any way, directly or indirectly)
2. Phone records for AGM from July 1, 2019, through May 31, 2020, concerning the phone numbers of the patients identified in The Patient List.
3. Any and all documents, communication and/or writing between AGM, their agents, employees, executives, directors, heirs, etc., and the patients identified in the Patient List from July 1, 2019, through May 31, 2020. (The words “any” and “all” shall be construed to mean “any” or “all” as required to bring within the interrogatory’s or document request’s scope the greatest amount of information. The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. DOCUMENTS and WRITINGS as defined by Evidence Code §250, which includes all tangible and electronic materials, such as reports, letters, memos, notes, handwritten information, forms, emails, advertisements, posts, and all other forms of record; The term “COMMUNICATION” means the transmittal of information in the form of facts, ideas, inquiries, or otherwise. All spoken or written exchanges (whether face-to-face or via telephone, teleconference, electronic transmissions, e-mail, or recorded message) constitute “communication.”)
(Id.)
On September 15, 2022, Defendants served an objection to the deposition notice. (Mot., Ex. 2.) On September 23, 2022, Defendants’ PMK (Mardyan) appeared, but did not produce any documents and was unable to answer certain questions without the aid of the absent documents. Plaintiffs argue that Mardyan was able to answer general questions about AGM’s billing and prescription fulfillment process, but was unable to answer specific questions about origination codes for patients’ prescriptions (i.e., how the prescription was provided to AGM), employees who assisted respective patients on the first day, first day interactions, first prescription and refills, number of prescriptions for a respective patient, etc. from memory and that she made no efforts to obtain telephone records prior to the deposition. (Mot., Exs. 4-5.)
The Court has reviewed the excerpts of the PMK’s deposition testimony. Plaintiffs’ counsel, Mr. Helo, stated his intention to ask Mardyan specific questions about the 176 patients on the patient list, origination information, etc., but expressed his doubts that Mardyan could testify as to these subjects without documents before her. (Mot., Ex. 3.) In response, defense counsel, Mr. Jurkowitz, stated that Mardyan had been produced to testify about the 12 topics, but that specific nature as sought by Mr. Helo had not been specified in the deposition notice. (Id.)
The deposition topics provided in the notice could be read either generally (i.e., the general process/practices of acquiring patients, how patients are interacted with, etc.) or specifically (i.e., how each patient was specifically acquired, their refill numbers, etc.). Nevertheless, the patient files themselves were clearly enough requested, and should have been produced. Perhaps it would have been unreasonable to have Mardyan testify as to the 12 topics for each of the 176 patients on the patient list, but the documents could have been authenticated, and she may have answered most of the questions.
Thus, at this time, the Court grants the motion to compel the second deposition of AGM’s PMK. The patient files should be produced (as noted below) and Plaintiffs may inquire about them for a maximum of two hours.
Next, the Court turns to whether the documents requests are proper.
Request No. 1 seeks each patient’s files or electronic records from July 1, 2019 to May 31, 2020. Defendants objected that the request was burdensome, oppressive, overbroad, and vague, and that the request sought private information protected under the Constitution. In part, the documents sought seek private, confidential information regarding the clients’ medical records and prescriptions. The clients are not parties to this action and have not waived their right to privacy in these documents.
The motion to compel responses to Request No. 1 will be granted with conditions. These patients are not strangers to the dispute. All of these patients have participated in the action on behalf of Defendants and provided testimony in support of their case. They have voluntarily testified about matters that can only be cross-examined by production of these records. All of these patients have previously shared their prescription needs with both parties to this case. At this point, the Court will overrule, but accommodate the objections based on their privacy.
For the most part, these records should consist of the history of financial transactions rather than detailed information regarding the diagnosis or particulars of an illness. An appropriate protective order can be issued to protect the distribution of the records and to require their return at the conclusion of the action. Plaintiffs must provide a notice to the patients that the records will be produced pursuant to Court order. If necessary, medical details can be redacted. (Defendants can provide updated addresses if they exist.) The records should be produced within 30 days of the notice to the patients provided no patients bring a motion to halt the production. If such a motion is brought, the Court will resolve it in line with the above-stated principles.
Request No. 2 seeks AGM’s phone records from July 1, 2019 to May 31, 2020 concerning the phone numbers of the patients identified in the patient list. Defendants object to this request, arguing that T-Mobile cannot pick and choose numbers and provide records for only certain phone numbers and that the disclosure of the full phone records would violate privacy rights. In all likelihood, these records consist almost entirely of phone calls to and from the patients at issue. The time period has been limited. The motion will be granted as to this request.
Request No. 3 seeks documents, communication and/or writing between AGM, their agents, employees, executives, directors, heirs, etc., and the patients identified in The Patient List from July 1, 2019, through May 31, 2020. Defendants objected to this request on the same basis as no. 1, but also responded that a diligent search and reasonable inquiry were made but that the documents never existed. While Defendants stated that no documents ever existed, documents such as receipts, prescriptions to be filled, etc. are likely to exist. The motion will be granted to make clear that Defendants should search again. The granting of the motion should also make clear to Defendants that they will not be able to offer evidence of such documents at trial should they later be found.
No sanctions were requested and no sanctions will be awarded on this motion.
CONCLUSION AND ORDER
Plaintiffs’ motion to compel compliance with deposition subpoenas and for monetary sanctions is granted in part and denied in part as delineated in the Court’s written order. No sanctions will be awarded in connection with that motion.
Plaintiffs’ motion to compel the deposition testimony of non-party Bila Varvara is denied without prejudice.
Plaintiffs’ motion to compel the further deposition testimony of Defendant AGM’s PMK and for the production of documents is granted in part as detailed above. The motion to compel responses to the documents requested in request no. 1-3 is granted as set forth in the Court’s written order.
Plaintiffs shall provide notice of this order.