Judge: Jon R. Takasugi, Case: 21STCV28098, Date: 2023-04-05 Tentative Ruling

Case Number: 21STCV28098    Hearing Date: April 5, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to compel is GRANTED, with the deposition not to take place for 30 days. Defendant Marbella Construction, Inc. is sanctioned, jointly and severally with counsel, $1,050.

On 7/30/2021, Plaintiff Inferno California, Inc. (Plaintiff) filed suit against New City Releasing, Inc. and Alan B. Bursteen (collectively, Defendants), alleging: (1) fraud in the inducement; and (2) breach of contract.

            Now, Plaintiff moves to compel compliance with third-party subpoena for Nile Niami and the person most qualified (PMQ) of Marbella Construction, Inc.  

Discussion

            Plaintiff argues that good cause exists to compel the deposition of Nile Niami on behalf of Marbella Construction because neither of the deponents appeared for their respective depositions and neither served objections. Moreover, Plaintiff argues that good cause exists to grant this motion because, “[t]his case concerns the fraudulent inducement to entice Plaintiff [to] give Defendant $1,316,000 based on misrepresentations by Defendant. The subpoenas at issue concern an individual and entity that was involved in the transaction and has critical information concerning Defendant's fraud.” (Motion, 1: 12-15.)

            In opposition, Niami does argument his testimony is irrelevant but rather argues that this motion should be denied as moot because Niami is in the hospital in Columbia, and is not medically cleared to travel. In support, Niami submitted a heavily redacted medical record. While the Court is unable to assess the explanation of Niami’s condition in light of the redactions, it is important to note that the form, dated 3/8/2023, provides that Niami is to be placed on only one month of medical disability, at which point he can be assessed for air travel. Accordingly, as of 4/8/2022, Niami is no longer under medical disability and can be assessed for air travel.

            As such, the Court finds the appropriate action to be to grant Plaintiff’s motion to compel deposition, with the deposition not to take place for 30 days. If Niami remains incapacitated at the time of the scheduled deposition, he may move for a protective order to postpone the deposition. However, as part of that motion, Niami must attach updated documentation including an unredacted copy of the hospital record (which may be filed under seal), and a signed declaration from a physician attesting to his inability to participate in the deposition.

            The Court also finds sanctions to be appropriate. While Niami may be hospitalized, this does not explain why Niami failed to alert Plaintiff’s counsel of his condition, or failed to object to the deposition. The Court awards Plaintiff $1,050 in costs incurred to bring this motion ($350/hr x 3 hr.)  

Based on the foregoing, Plaintiff’s motion to compel is granted. Defendant Marbella is sanctioned, jointly and severally with counsel, $1,050.

It is so ordered.

Dated:  April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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