Judge: John J. Kralik, Case: 21BBCV00189, Date: 2023-08-17 Tentative Ruling

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Case Number: 21BBCV00189    Hearing Date: August 17, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of the Complaint

Plaintiff Hitech Imaging Trade, Inc. (“Hitech”) alleges that in 2018, Hitech was involved in a construction project located at 16549 Beaver Road, Adelanto, California, which required, among other things, electrical distribution lines to be laid.  Hitech alleges that it entered into an oral agreement with Defendant Aram G. Construction (“AGC”) in November 2018, wherein Hitech would pay AGC $110,000 to excavate areas of a roadway and lay electrical pipes and conduits in accordance with diagrams provided/prepared by Southern California Edison (“SCE”).  This project was to be completed within 3 months of the date of the agreement.  Hitech alleges that Defendants AGC and Aram Madzhinyan (“Madzhinyan”) breached the agreement by failing to complete the work and that after being paid approximately $80,000, AGC abandoned the project on March 25, 2019. 

The complaint, filed March 3, 2021, alleges causes of action for: (1) breach of oral contract; (2) money had and received; (3) conversion; (4) unjust enrichment; (5) accounting; and (6) payment of contractor’s license bond.  

On October 12, 2021, Hitech dismissed with prejudice Defendant Western Surety Group only. 

B.     Cross-Complaint

On April 29, 2022, AGC and Madzhinyan filed a cross-complaint against Hitech, Grigor Kemdjian, and Mesrop Khoudagoulian for: (1) fraud and intentional deceit against all Cross-Defendants; (2) negligent misrepresentation against all Cross-Defendants; (3) breach of oral contract against all Cross-Defendants; (4) conspiracy to defraud against all Cross-Defendants; (5) civil assault against Kemdjian and Khoudagoulian; and (6) civil battery against Kemdjian and Khoudagoulian. 

On July 29, 2022, the Court sustained without leave to amend Khoudagoulian’s demurrer to the 5^th and 6^th causes of action in the cross-complaint as alleged against Khoudagoulian. 

C.     Motion on Calendar

On May 10, 2023, Hitech filed a motion for an order imposing terminating sanctions such that the answer and cross-complaint of Madzhinyan and AGC be stricken, that default be entered against them, and that a default judgment prove-up hearing be scheduled for Defendants’ disobedience to the Court’s prior order regarding the second deposition of Defendant Madzhinyan, who is the PMK of AGC.

On August 4, 2023, AGC and Madzhinyan filed an opposition to the motion.

On August 7, 2023, Hitech filed a reply brief.

DISCUSSION

            Plaintiff moves for terminating sanctions and monetary sanctions against Madzhinyan and AGC for their failure to produce Madzhinyan for his second deposition. 

            On August 11, 2022, Hitech applied ex parte for an order compelling the deposition of Madzhinyan as the PMK of AGC.  The Court granted the application and ordered Madzhinyan and the PMK to appear for deposition no later than September 15, 2022, or they would not be able to participate at the trial.  Hitech states that the parties then agreed to continue conduct Madzhinyan’s deposition on November 15, 2022 and Madzhinyan appeared for his deposition, but did not produce documents.  The parties then agreed on the record that the second deposition of Madzhinyan would be taken on November 23, 2022.  However, since documents were not provided in time, the second deposition was continued to December 8, 2022, and then again to December 15, 2022.  The parties then stipulated to a continuance of the trial date so that the second deposition of Madzhinyan could go forward. 

On December 20, 2022, Hitech moved to compel the second deposition session of Madzhinyan and to produce documents as the deposition.  The motion was unopposed.  On April 21, 2023, the Court granted Hitech’s motion to compel Madzhinyan’s second deposition and ordered that the parties meet and confer to find a mutually agreeable deposition date.  The Court stated that if the meet and confer efforts failed, Plaintiff could schedule the second deposition for a date within 3 weeks of the April 21, 2023 order.  Madzhinyan was also ordered to pay monetary sanctions in the amount of $1,760. 

Hitech states that after the April 21, 2023 order, it immediately sent an email to defense counsel to request dates of availability for Madzhinyan’s deposition.  However, because defense counsel did not provide any dates, Hitech’s counsel served a notice of second deposition, scheduling the deposition for May 11, 2023.  Hitech argues that no objection was served to the notice.  Hitech states that on May 8, 2023, it received an email from defense counsel stating that Madzhinyan has been in Armenia since April 2022 and could not attend his deposition on May 11, 2023 and would not be producing documents.  Defense counsel stated that he had requested the documents from Madzhinyan by May 8, but that he too was not in receipt of the documents from Madzhinyan. 

In opposition, Madzhinyan argues that Hitech unilaterally scheduled his deposition on May 15, 2023 for May 31, 2023, but he was not in the country and in Armenia until May 25, 2023 since he has dual residency and splits his time between the United States and Armenia.  Madzhinyan argues that he provided 5 alternative dates where Madzhinyan would have ample time to produce documents.  (Although the opposition cites to an Exhibit A as the declaration of Arno H. Keshishian, no declaration has been provided and there are no exhibits attached to the moving papers.)  Madzhinyan argues that on June 2, 2023, his counsel informed Hitech he would produce all documents required and that he would not be available for an in-person deposition because he was exposed to the chicken pox and Madzhinyan’s counsel has a trial set for the week of June 19. 

CCP § 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP § 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order.  The Court weighs the following factors when considering the present motion: (1) defendants’ conduct, indicating whether their actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

At this time, the Court declines to enter terminating sanctions against Madzhinyan and AGC.  By making this order, the Court by no means is condoning Defendants’ or their counsel’s behavior in delaying meet and confer efforts or failing to oppose and appear for motion/application hearings. However, it appears that Madzhinyan is now present in California, will attend his deposition, and is amenable to producing documents prior to his deposition.  Thus, Defendants are ordered to meet and confer with Hitech’s counsel to find a mutually agreeable deposition date that is ideally within 2 weeks of this order.  Defendants and their counsel should make efforts to not cause any further delays in this action.  The Court notes that a non-jury trial is set for August 21, 2023.  Thus, the parties should attend the hearing to discuss whether a short continuance of the trial is necessary to allow time for the deposition to go forward.

In addition to and/or alternative to the request for terminating sanctions, Hitech requests that the Court impose additional monetary sanctions against Madzhinyan and AGC in the amount of $4,097.50.  This accounts for 6.5 hours preparing this motion, 2 hours to review the opposition and prepare a reply, and 1 hour to attend the hearing at $425/hour, plus $60 in filing fees.  (Miller Decl., ¶13.)  The Court grants the request for monetary sanctions against Defendants and their counsel of record.  Defendants and their counsel have delayed this action and the second deposition.  If Madzhinyan was out of the country, then defense counsel could have disclosed this information earlier (by way of objection, opposition to the prior motion, informing the Court and the parties at a hearing) or suggested conducting a remote deposition, instead of failing to engage in meet and confer efforts. 

Thus, the motion is granted in part and denied in part.  The motion for terminating sanctions is denied, but the motion for monetary sanctions is granted.  If Madzhinyan continues to fail to meet and confer about his second deposition, fails to produce documents, and/or fails to attend his deposition, then Madzhinyan may be subject to further sanctions.

CONCLUSION AND ORDER

Plaintiff Hitech Imaging Trade, Inc.’s motion to for an order imposing terminating sanctions and monetary sanctions against Defendants Aram Madzhinyan and Aram G. Construction is granted in part and denied in part.  The motion is denied in part such that the request for terminating sanctions is denied.  The motion is granted in part, such that monetary sanctions in the amount of $4,097.50 will be imposed against Defendants Madzhintan and Aram G. Construction.  Defendants Aram Madzhinyan and Aram G. Construction and their cousnsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $4,097.50 to Plaintiff, by and through counsel, within 20 days of notice of this order.

The Court notes that concurrently with this motion, there is a Final Status Conference and Mandatory Settlement Conference scheduled for August 17, 2023.  The non-jury trial date is scheduled for August 21, 2023.  The Court will discuss with the parties at the FSC, MSC, and motion hearing whether a trial continuance may be necessary.

Plaintiff shall provide notice of this order.