Judge: Joseph Lipner, Case: 19STCV38577, Date: 2023-11-16 Tentative Ruling

Case Number: 19STCV38577    Hearing Date: November 16, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff s Western Diocese of the Armenian Church of North America (“Western Diocese”) and St. John Armenian Apostolic Church Hollywood, California (“St. John”) (collectively, “Plaintiffs”) move to compel the deposition of non-party witness Appo Jabarian (“Jabarian”) and request sanctions against Jabarian in the amount of $1,840.

Plaintiffs’ motion is CONTINUED to January 30, 2024 at 8:30 a.m. for a further hearing.  The Court believes that, to the extent possible, the deposition of Jabarian ought to be delayed until after a decision on any timely filed anti-SLAPP motions in Case Nos. 23STCV24374 and 23STCV24411.

Background

Plaintiffs alleges that Defendant Petros Taglyan (“Defendant”) promised to fund the construction of a new church, which would replace their old church that was damaged in the Northridge Earthquake. Plaintiffs allege that after construction had started, Defendant reneged on his promise to fund the church, leaving the old building demolished and the new church without the funds for construction.

Plaintiffs filed this action on October 28, 2019. The operative complaint is now the Second Amended Complaint (“SAC”), which states claims for (1) breach of contract; (2) promissory estoppel; (3) promissory fraud; (4) fraudulent concealment; (5) conversion; (6) breach of fiduciary duty; (7) accounting; (8) constructive trust; and (9) declaratory relief.

Jabarian, a third party to this action, is a journalist who has written and published a number of articles concerning Plaintiffs, including about the dispute between Plaintiffs and Defendant. Plaintiffs contend that Jabarian is a witness to efforts by Defendant to bribe a third party to raise false allegations against an archbishop of Western Diocese. (Reply at 5-6; Giaba Decl. ¶ 7.) Plaintiffs also contend that Jabarian aided in these efforts. (Reply at 5-6; Giaba Decl. ¶ 7.)

On July 26, 2023, Plaintiffs served Jabarian with a deposition subpoena, requiring his attendance at a deposition on August 21, 2023. (Alexander Decl., ¶ 3, Exh. A.)

On August 15, 2023, Jabarian emailed Plaintiffs’ counsel stating that he was out of the country and requesting that the deposition be rescheduled to a later date. (Jabarian Decl. ¶ 3, Exh. A.) Plaintiffs’ counsel did not respond. (Jabarian Decl. ¶ 3.)

Jabarian did not attend his deposition. (Alexander Decl., ¶ 5.)       

          Between August 25, 2023 and September 11, 2023, Plaintiffs met and conferred with Jabarian. Jabarian was represented by counsel in connection with this action for a portion of that period, but the representation ended by September 7, 2023. (Alexander Decl. ¶¶ 6-14.) On September 11, 2023 Jabarian emailed Plaintiffs that he would agree to attend his deposition subject to certain limitations on the questions asked as soon as he retained new counsel. (Alexander Decl. ¶ 14.)

          On September 26, 2023, Plaintiff’s new attorney, Robert Gutierrez of Ballard Spahr, emailed Plaintiffs’ counsel to inform them that Ballad Spahr was now representing Jabarian. (Gutierrez Decl. ¶¶ 2-4, Exh. A.)

          Plaintiffs filed this motion on September 27, 2023.

          On September 27, after the motion was filed, Gutierrez met and conferred with Plaintiffs’ counsel and discussed scheduling a deposition date for Jabarian. (Gutierrez Decl. ¶ 4.) Jabarian’s deposition was eventually scheduled for October 30, 2023. (Gutierrez Decl. ¶ 9.) During the meet and confer call, Plaintiffs’ attorneys informed Gutierrez that Jabarian had written some articles that Plaintiffs believed defamed them, and the attorneys agreed that Plaintiffs’ attorneys would send Gutierrez copies of the article and information relating to their falsity. (Gutierrez Decl. ¶ 4.)

          On October 6, Hovnan Derderian filed two separate, identical complaints for defamation against Jabarian in the Los Angeles Superior Court: Case No. 23STCV24374, assigned to Department 58; and Case No. 23STCV24411, assigned to Department 71. (Gutierrez Decl. ¶ 7; Exh. B, C.) Hovnan Derderian is an Archbishop and the Primate of Plaintiff Western Diocese. (Case No. 23STCV24374, Complaint ¶¶ 9-10.) The gravamen of Derderian’s defamation claim is that Jabarian wrote or published news materials falsely accusing Derderian of crimes including child molestation and embezzlement. (Case No. 23STCV24374, Complaint at p. 2.) Proof of service of the complaint has not been filed in either case. (Case No. 23STCV24411; Case No. 23STCV24374.)

          Gutierrez subsequently learned about the defamation actions against Jabarian and wrote to Plaintiffs’ counsel to inform them that Jabarian would not be appearing for the October 30, 2023 deposition. (Gutierrez Decl. ¶ 9-11.)

          Jabarian filed an opposition and Plaintiffs filed a reply.

Legal Standard

"Any party may obtain discovery…by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency." (Code Civ. Proc., § 2025.010.) "Except as provided in subdivision (a) of Section 2025.280 the process by which a nonparty is required to provide discovery is a deposition subpoena." (Code Civ. Proc., §2020.010, subd. (b)). “A deposition subpoena may command any of the following: …. (c)The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).” (Code Civ. Proc., § 2020.020.)

“If the deponent is an organization, the subpoena shall describe with reasonable particularity the matters on which examination is requested. The subpoena shall also advise the organization of its duty to make the designation of employees or agents who will attend the deposition, as described in Section 2025.230.” (Code Civ. Proc., § 2020.310, subd. (e).)

“If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240.” (Code Civ. Proc., § 2025.440, subd. (b).)

“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.” (Code Civ. Proc., § 2025.480, subd. (a).) This motion must be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

“If a subpoena requires the attendance of a witness … at the taking of a deposition, the court, upon motion … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. § 1987.1, subd. (a).)

Discussion

Anti-SLAPP and Timing Protections

When an anti-SLAPP motion is filed, discovery proceedings in the action are stayed while the motion is pending. (Code Civ. Proc. § 425.16, subd. (g).)

A plaintiff may not notice a deposition until 20 days have passed after either the service of summons on, or appearance by, the defendant. (Code Civ. Proc. § 2025.210. subd. (b).)

Jabarian contends that compelling his deposition in this action would allow Plaintiffs and Derderian to misuse the discovery process to functionally conduct discovery for the defamation actions where it would otherwise be restricted. Jabarian argues that the defamation claims are subject to the anti-SLAPP statute.

The Court initially notes that it is not in a position to rule on whether the defamation lawsuits, which are not in front of it, are SLAPPs. The Court additionally notes that Jabarian has not yet been served in the defamation lawsuits and thus has filed no anti-SLAPP motion. Thus, in the defamation cases, deposition of Jabarian would currently be inappropriate because he has not been served.  A deposition may remain inappropriate if Jabarian files anti-SLAPP motions, motions which he here takes the position would be warranted.

          While there is no rule forbidding discovery under these particular circumstances, the Court can modify a deposition subpoena or make protective orders as necessary to protect a person from unreasonable or oppressive demands. (Code Civ. Proc. § 1987.1, subd. (a).) “[T]he issuance and formulation of protective orders are to a large extent discretionary and a ruling on such motions will not be disturbed absent abuse of discretion”  (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-317 [internal quotations and citations omitted].) 

Notwithstanding the fact that Derderian and Western Diocese are different parties, there appears to be some unity of interest. The defamation complaints allege that Derderian is the Primate of the Diocese, having been elected by the Annual Diocesan Assembly in 2003 and reelected consistently afterward. (Case No. 23STCV24374, Complaint ¶¶ 9-10.) Further, Derderian and Western Diocese are both represented by several of the same attorneys from Kabateck LLP, meaning that, as a matter of fact, the attorneys litigating both cases would have access to any information obtained in pursuit of this case. The discovery sought in this case appears to concern facts that will likely be relevant in the defamation cases: Plaintiffs seek to depose Jabarian on his alleged work with Defendant to “[find] someone …. Who was willing to say that the Archbishop of the Western Diocese, Hovnan Derderian, had raped her daughter in exchange for a payment of $100,000.” (Reply at 6; Giaba Decl. ¶ 7.) As discussed above, the gravamen of Derderian’s defamation claim is that Jabarian published articles falsely accusing him of child molestation and embezzlement.

The Court will not forbid the deposition of Jabarian in this case. However, under these facts, caution is appropriate. Given the overlap of the issues, parties, and attorneys, the risk of irregular use of discovery processes are high.  The Court is mindful that the subject of this subpoena is a third-party to the current action, and a journalist who has recently been sued. 

Moreover, the Court is willing to make further case management orders on Plaintiffs’ request to ensure no prejudice to Plaintiffs.  If the deposition cannot take place before the current trial date in this matter, the Court would be open to granting a continuance of the trial date to ensure that issues surrounding Jabarian’s deposition can be determined in a timely and orderly manner.

The Court therefore continues this motion to January 30, 2024 at 8:30 a.m.  for a further hearing.

Reporter’s Privilege

          Jabarian argues that compelling his deposition would violate the reporter’s privilege.

          California’s Shield Law provides that

“[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication … cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding … the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”

(Evid. Code, § 1070, subd. (a).)

          Article I, section 2(b) of the California Constitution contains a nearly identical provision.

          The shield law’s immunity is unqualified; it cannot be overcome by a showing of need for unpublished information. (New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 461.) “[T]he shield law's protection is not contingent on a showing that a newsperson's unpublished information was obtained in confidence.” (Ibid.)

          The First Amendment provides a similar, albeit qualified, protection comes into play that can be overcome by a need for disclosure. (Shoen v. Shoen (9th Cir. 1993) 5 F.3d 1289, 1292-1293.)

Jabarian argues that his deposition is likely sought in connection with his writing and political activities which also underly the defamation cases. Plaintiffs argue that Jabarian is not merely a journalist, and that he is rather a fact witness with first-hand knowledge of facts relevant to this action. Plaintiffs argue that Jabarian aided efforts by Defendant to bribe a third party to raise false allegations against an archbishop of Western Diocese. (Reply at 5-6; Giaba Decl. ¶ 7.)

          Furthermore,  Jabarian suggests questions about protest activity would be covered by the First Amendment privilege against compelled disclosure of political associations. (Perry v. Schwarzenegger (9th Cir. 2010) 591 F.3d 1147, 1156 [“Compelled disclosures concerning protected First Amendment political associations have a profound chilling effect on the exercise of political rights.”].)

          These issues are not grounds for forbidding the deposition altogether but would be determined on a question-by-question basis.  The parties should be mindful that the Court will not permit questioning of Jabarian regarding his news-gathering efforts that violate the California Shield law.  The issues about political associations will have to be developed further when the deposition ultimately takes place.

Relevance

The Court does not reach Jabarian’s objections concerning relevance.

Sanctions

          The Court will not grant sanctions, because it finds that Jabarian’s opposition is substantially justified.