Judge Lee S. Arian, Case Number: 22STCV28878, Date: 2024-01-24 Tentative Ruling

Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel Fire Cause Analysis (“FCA”) to Comply with Business Records Subpoena Relating to Defendant Hashem 26, LLC is GRANTED. The Court awards sanctions to Plaintiff in the amount of $500 against FCA. FCA is ordered to produce the requested report within 10 days of this order.

This matter stems from the damage sustained to the property of Victor Manuel Benites Olazabal (“Victor”) and Joselyn Olazabal (“Joselyn”) (collectively, “Plaintiffs”) after the commercial property Plaintiffs rented burned down. On October 16, 2021, an electrical fire ignited from an electrical panel at the back wall of 5821 ½ W. Pico Blvd., Los Angeles, CA 90019. (Complaint, ¶ GN-1.) The fire completely destroyed inventory and equipment for Joselyn’s business located at 5821 ½ W. Pico Blvd. and Victor’s business located next door at 5821 W. Pico Blvd.

Plaintiffs filed suit against the landlord Hashem 26, LLC (“Defendant”) for general negligence, premises liability, and negligence per se. The motion before the Court now is Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel Fire Cause Analysis to Comply with Business Records Subpoena Relating to Defendant Hashem 26, LLC (“Motion”). Additionally, Victor requests $3,010.00 in sanctions against Fire Cause Analysis (“FCA”), Defendant, and Defendant’s counsel.

Victor files this Motion under CCP § 1987.1 which permits the Court to quash a subpoena, modify a subpoena, or direct compliance with a subpoena upon the terms the Court declares. Additionally, under CCP § 1987.2 “in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion…”

Prior to this action being commenced by Plaintiffs, non-party FCA investigated how the fire ensued. (Declaration of Sylvia V. Karlan, hereinafter, “Karlan Dec.”, ¶ 3.) FCA’s site inspection took place on January 13, 2022, and Plaintiffs have been seeking the report from FCA since then. (Id. at ¶ 4.) On September 11, 2023, Plaintiffs’ attorneys served a Deposition Subpoena for Production of Business Records (“Subpoena”) on FCA requesting “any and all records related to the fire that occurred on October 16, 2021” for the properties be produced by October 6, 2023. (Id. at ¶ 6.)

FCA failed to produce the records by the stated deadline. (Id. at ¶ 9.) No motion to quash nor objection was filed by either FCA or Defendant. (Id. at ¶¶ 10-11.) On November 3, 2023, Plaintiff’s counsel attempted to meet and confer with non-party FCA where FCA confirmed it had the report but stated they could not release it without Defendant’s permission, as FCA had been instructed by Defendant not to do so. (Id. at ¶ 13.) Plaintiff’s counsel then attempted to confer with Defense counsel on the same day, however, Defense counsel did not reply. (Id. at ¶¶ 14-15.)

It is unclear why compliance with the subpoena did not occur. The subpoena was drafted in accordance with the requirements specified in CCP §§ 2020.410 and 2020.430, and FCA failed to object to it. Additionally, Defendant as the consumer was made aware of service of the subpoena. (Motion, Exh. C.) Finally, Plaintiff states that Defense counsel directed FCA not to comply; however, Defendant nor its counsel provide explanation as to why, even after Plaintiff’s counsel attempted to meet and confer. (Motion, Exh. D.) Nor have they provided explanation here, as the Motion is unopposed. Accordingly, the Motion is granted and sanctions are warranted.

Plaintiff seeks sacntions against FCA, Defendant and Defendant’s counsel. However, Defendant and Defendant’s counsel was not the party that failed to comply with the subpoena and the contention that they are the ones responsible for the non-compliance is hearsay. Plaintiff has requested $500 in sanctions from FCA, which the Court hereby grants.

Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel Fire Cause Analysis to Comply with Business Records Subpoena Relating to Defendant Hashem 26, LLC is GRANTED. The Court awards sanctions to Plaintiff of $500 to be paid by FCA within 20 days of this order. FCA is ordered to produce the requested report within 10 days of this order.

Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel the Attendance and Testimony of Morad Dayan, Defendant’s Person Most Knowledgeable is GRANTED and sanctions are imposed upon Defendant and its counsel and awarded to Plaintiff in the total amount of $5,834.65. Additionally, this Court orders that Morad Elyaoudayan, the PMK designated by Defendant Hashem 26, LLC (“Defendant”), to reappear and give testimony until the PMK deposition is concluded by Plaintiff’s counsel.

This matter stems from the damage sustained to the property of Victor Manuel Benites Olazabal (“Victor”) and Joselyn Olazabal (“Joselyn”) (collectively, “Plaintiffs”) after the commercial property Plaintiffs rented burned down. On October 16, 2021, an electrical fire ignited from an electrical panel at the back wall of 5821 ½ W. Pico Blvd., Los Angeles, CA 90019. (Complaint, ¶ GN-1.) The fire completely destroyed inventory and equipment for Joselyn’s business located at 5821 ½ W. Pico Blvd., and Victor’s business located next door at 5821 W. Pico Blvd.

Plaintiffs file suit against the landlord Hashem 26, LLC (“Defendant”) for general negligence, premises liability, and negligence per se. The motion before the Court now is Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel the Attendance and Testimony of Morad Dayan, Defendant’s Person Most Knowledgeable (“Motion”). Additionally, Victor requests sanction in the amount of $6,534.65.

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection. (CCP §2025.450(a).) No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance. (CCP §2025.450(b)(2).)

“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4^th 1109, 1124. See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).)

On June 23, 2023 Plaintiffs served a Notice of Taking Deposition of Person Most Knowledgeable for Defendant (“Notice”). (Declaration of Sylvia V. Karlan, hereinafter, “Karlan Dec.”, ¶ 3.) After the parties conferred on Defendant’s objections to the Notice, the parties settled on an August 10, 2023 date, agreed to having a Farsi interpreter, and confirmed the topics for questioning. (Karlan Dec., ¶ 10.) On August 8, 2023 in response to Plaintiff asking to confirm that the PMK deposition was going forward, Defense counsel noted that David Dayan would be the PMK and that they would like the deposition to start at 11:00 a.m., instead of the agreed upon 10:00 a.m (Id. at ¶ 14.) The next day – one day before the deposition was to take place – Defense counsel changed the PMK from David Dayan to Morad Dayan. (Id. at ¶ 15.)

On the day of the deposition, Plaintiff’s counsel, the stenographer, and the interpreter were all present at 11:00 a.m. as previously agreed, however, Defense counsel did not show up with the client until 11:30 a.m., and the deposition did not start until 11:45 a.m. (Id. at ¶ 18.)

From the start of the deposition until its early termination, Defense counsel engaged in dilatory tactics:

· As Plaintiff’s counsel was giving instructions for the deposition, Defense counsel objected. For example:

o Plaintiff’s Counsel: “Before we start the questions about the case, I just have to ask you a few things to make sure that you’re able to give correct answers today.

o Defense Counsel: “I will object to the term – you’re gonna let me object please and thank you. I object to the term ‘correct answers’.” (Motion, Exh. L, pg. 7, line 25 through pg. 8 lines 1-7.)

· Defense counsel then instructed the designated PMK not to answer who he was employed by, even though he was deemed the PMK by Defendant. (Karlan Dec., ¶ 21.)

· Defense counsel at one point requested that Plaintiff’s counsel not have direct communications with the deponent on the record, however, that is the exact purpose of a deposition. (Motion, Exh. L, pg. 18, lines 18-19.)

· After the deposition began at 11:45 a.m. a five-minute break was requested at 12:11 p.m. (Motion, Exh. L, pg. 18, lines 14-17.)

· Then two consecutive recesses followed, one from 12:35-1:05 p.m. and another from 1:05 p.m. to 1:47 p.m. (Motion, Exh. L, pg. 27, lines 10-14.) It is unclear why these recesses occurred.

· Then, upon returning at 1:47 p.m., and after several objections by Defense counsel on topics previously agreed upon, Defense counsel inexplicably ended the deposition at 2:07 p.m. It appears that at least one of the reasons for the early termination may have been that Defense counsel had a doctor’s appointment scheduled at 2:30 p.m.

From the transcript, it appears that Defense counsel had no basis for the objections as all questions asked by Plaintiff’s counsel were questions directly related to the six agreed upon topics in the Notice. Because of the objections, Plaintiff’s counsel had only 50 minutes of time to question the deponent. (Karlan Dec., ¶ 21.) Additionally, Defense counsel did not file any opposition papers to explain the objections nor the early termination of the deposition. The deposition was scheduled well in advance of the August 10, 2023 date, with topics deliberated and agreed upon prior. There seems to be no reason why the deposition could not have gone forward at the agreed upon time, and been completed in full, other than Defense counsel’s actions during the deposition.

Although no meet and confer is required under CCP §2025.450, the parties were requested to meet and confer per instructions during an informal discovery conference (IDC) held on August 24, 2023. Plaintiff’s counsel demonstrates good faith meet and confer efforts, that were met with Defense counsel stating, “I am not as ready as you are to meet and confer”. (Motion, Exh. P.) No further explanation nor response was provided by Defense counsel.

Here, the Court deems it necessary to remind the parties that “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2023.030(a).) Misuse of the discovery process includes employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP § 2023.010(c).) Plaintiff’s counsel has made clear from their filings that misuse of the discovery process is exactly what took place, and sanctions are warranted.

Through their declaration, Plaintiff’s counsel provides the following calculations:

· Counsel anticipated 2 hours reviewing opposition papers and responding with a reply

· Additionally, counsel requests that the Court order the Defendant to pay $1,574.65 that Defense counsel had previously agreed to pay.

Considering that no opposition nor reply was filed, the Court will award sanctions to Plaintiff, and impose them on Defendant and their counsel in the total amount of $5,834.65.

Accordingly, Plaintiff Victor Manuel Benites Olazabal’s Motion to Compel the Attendance and Testimony of Morad Dayan, Defendant’s Person Most Knowledgeable is GRANTED and sanctions are imposed upon Defendant and their counsel and awarded to Plaintiff in the total amount of $5,834.65. Additionally, this Court orders that Morad Elyaoudayan, the PMK designated by Defendant Hashem 26, LLC (“Defendant”), to reappear and give testimony until the PMK deposition is concluded by Plaintiff’s counsel.

[1] Defendant filed an opposition to the Motion on January 23, 2024. That Opposition was late, and the Court will not consider it.

[2] The Court notes that the Karlan Dec. in ¶ 17 requests a total of $3,100, however this may be a typographical error, as the correct amount when added produces a sum of $3,010.00