Judge Lynne M. Hobbs, Case Number: 22STCV02705, Date: 2024-07-15 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV02705, Date: 2024-07-15 Tentative Ruling

Case Number: 22STCV02705 Hearing Date: July 15, 2024 Dept: 61

BERJ PARSEGHIAN, IN THE PUBLIC INTEREST vs LESSER EVIL LLC, A DELAWARE LIMITED LIABILITY COMPANY, et al.

TENTATIVE

Plaintiff Berj Parseghian’s Motion to Compel Deposition of Defendant Lesser Evil, LLC’s Person Most Knowledgeable is GRANTED. No sanctions are awarded.

Defendant Lesser Evil, LLC’s Motion to Compel Deposition of Plaintiff Berg Parseghian is GRANTED. No sanctions are awarded.

The depositions are ordered to take place within 60 days, unless agreed to by the parties.

Plaintiff to give notice.

DISCUSSION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

In competing motions, Defendant Lesser Evil LLC (Defendant) and Berj Parseghian (Plaintiff) seek to compel the deposition of the other, on the grounds that both have failed to appear for noticed depositions. Defendant contends that Plaintiff has failed to appear for his deposition, scheduled by his request on February 26, 2024, after four prior notices of deposition were served against him, beginning in April 2022. (Kwasniewski Decl. ¶¶ 2–27.) Plaintiff, meanwhile, contends that he attempted to take the deposition of Defendant’s person most knowledgeable beginning in May 2022, and that Defendant most recently declined to appear for the deposition scheduled for April 22, 2024, once more after four prior deposition notices were served upon Defendant. (Krikorian Decl. ¶¶ 3–12, Exhs. H, J.) Both parties declined to appear on grounds of unavailability, and both claim that the other has failed to offer alternative dates. (Krikorian DEcl. ¶¶ ¶¶12–14, Exhs. H–M.)

Plaintiff, in opposition to Defendant’s motion, argues that it is untimely under Code of Civil Procedure § 2025.480. (Opposition at pp. 2–3.) This argument is unavailing, because section 2025.480 applies to a party who appears for deposition and “fails to answer any question or to produce any document” at the deposition. (Code Civ. Proc., § 2025.480, subd. (a).) Hence the statute applies a 60-day time limit “after the completion of the record of the deposition.” (Code Civ. Proc. § 2025.480, subd. (b).) Plaintiff here acknowledges, however, that his appointed deposition “was not held,” and therefore no record of the deposition was completed. (Opposition at p. 2.) There is no time limit applicable to the present motions, which are directed at parties to the action who have “fail[ed] to appear for examination.” (Code Civ. Proc. § 2025.450, subd. (a).)

Plaintiff argues that he could not have attended the deposition scheduled for February 26, 2024, because his mother passed on January 19, 2024, and her memorial service was held on February 25, 2024, the day before his deposition was to take place. (Opp. Parseghian Decl. ¶¶ 2–3.) Plaintiff states he was “extremely emotional at the time, and was in no position to give my best testimony under oath given my mental and emotional condition at the time.” (Id. at ¶ 3.) Defendant contends that it was unable to appear for deposition on April 22, 2024, due to a scheduling conflict. (Opp. Kwasniewski Decl. ¶ 39.)

Both parties have failed to appear for scheduled depositions. This includes deposition dates to which the parties had previously agreed. (Kwasniewski Decl. Exh. M; Opp. Kwasniewski Decl. Exh. H.) Although both parties, in their moving papers and informal correspondence, make much of their willingness to “confer,” neither have offered dates of availability beyond February 2024. Both ought to be compelled to attend deposition, and both are entitled to relief on their motions.

The motions to compel deposition are both GRANTED.

Plaintiff seeks $2,700 in sanctions against Defendant in his motion, representing six hours of attorney work at $450 per hour. (Krikorian Decl. ¶ 15.) Defendant seeks $4,026.50 in sanctions against Plaintiff, representing 0.8 hours of attorney work at $1,025 per hour and 5.3 hours at $605 per hour. (Kwsniewski Decl. ¶¶ 34–36.) No sanctions are appropriate here, as the mutual relief afforded to both parties “make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)