Judge Margaret L. Oldendorf, Case Number: BC616980, Date: 2024-03-25 Tentative Ruling

These related cases concern events that transpired on April 16, 2014. For ease of reference, case no. BC616980 is referred to as the Fitilchyan Action and case no. BC617479 as the Torosian Action.

In the Fitilchyan Action, Plaintiffs allege that Arutyun Fitilchyan (Fitilchyan) was contacted by Akop Torosian (Akop) to perform some locksmith services. Fitilchyan alleges that a disagreement occurred, and he and Akop subsequently got into a fight at the body shop owned by Fitilchyan’s friend, Hrachya Gasparyan (Gasparyan). Akop’s brother, Robert Torosian (Robert), was also present. Shots were fired, and several people were seriously injured.

In Case No. BC617479, which was filed two days after the Fitilchyan Action, the Torosian brothers allege that the meeting at the body shop was a “set up” and that Akop and Robert were ambushed. The Torosians further allege that following the shooting, defendant Armen Tashjian and others attempted to extort money from Akop and Robert. The Torosian Action has since resolved, due to the issuance of various pretrial motions and dismissals.

Before the Court is a motion to reopen discovery in the Fitilchyan action. Defendant Robert Torosian filed the motion March 1, 2024. Plaintiffs filed an opposition on March 12, 2024. Akop Torosian filed a joinder to the motion on March 18, 2024. Defendant filed a reply on March 18, 2024.

CCP § 2024.020(a) states “[e]xcept as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” Additionally, “a continuance or postponement of the trial date does not operate to reopen discovery proceedings,” unless a motion to reopen discovery is filed and granted pursuant to CCP § 2024.050. (CCP § 2024.020(b); see also Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.)

The reopening of discovery is a matter that is committed to the trial court’s discretion. (See CCP § 2024.050(a)-(b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including but not limited to:¿

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (CCP § 2024.050(b).)¿

A motion filed under CCP Section 2024.050 requires a meet and confer declaration pursuant to CCP Section 2016.040. (CCP § 2024.050(a).)

In this connection, Robert offers the declaration of his counsel, Edye Hill. (Hill Declaration.) Ms. Hill declares that she sent a meet and confer letter to opposing counsel by email on February 29, 2024. (Hill Decl. ¶ 27, see Exh. GG.) The motion was filed the following day.

However, upon careful examination of the February 29, 2024 letter, despite citation to the meet and confer requirement, the letter states only “Defendant Robert Torosian intends to file a motion to reopen discovery so that the depositions and defense medical examinations of the plaintiffs can be completed before trial.” (Exh. GG to Hill Decl. p. 247.) It does not discuss the merits/grounds of the motion or otherwise demonstrate a good faith attempt to resolve the issues presented by the motion. (See CCP § 2016.040.)

This sole communication, sent the day before the motion was filed, does not satisfy the meet and confer requirement. Nevertheless, the Court declines to deny the motion on this basis.

Defendant Akop Torosian filed a notice of joinder and joinder to this motion on March 18, 2024, the same day Robert’s reply was due. The Court has read and considered the belated joinder.

This case has had an incredibly lengthy, difficult history. Fitilchyan and Gasparyan and their spouses filed the Fitilchyan Action on April 14, 2016 against Robert and Akop Torosian. On September 27, 2016, the case was deemed to be a “complicated” PI case, and it was transferred from the Stanley Mosk Courthouse to Glendale. On November 8, 2016, the first Judge assigned to the case, the Honorable Laura A. Matz, set the initial trial date for April 10, 2017.

On January 27, 2017, the case was stayed on a limited basis, and the April 10, 2017 trial date was vacated. On April 17, 2017, both cases were stayed in their entirety due to pending criminal matters related to the civil cases.

On September 6, 2018, the cases were transferred to the Honorable Ralph C. Hofer. For over two and a half years Judge Hofer conducted a number of status conferences, at one point temporarily lifting the stay, but later reimposing it. On March 17, 2021, the Torosians (who had until now been proceeding in pro per in both cases) had the law firm of Stratman, Schwartz & Williams-Abrego substitute in to represent them in the Fitilchyan Action.

On April 7, 2021, the stay in the case was finally lifted. On April 21, 2021, Judge Hofer re-set the trial date for March 7, 2022 -- approximately eleven months later.

On July 22, 2021, Robert Torosian had new counsel, Thomas M. Phillips from The Phillips Firm, substitute in to represent him. On August 5, 2021, the law firm of Lewis, Brisbois, Bisgaard & Smith, LLP associated as co-counsel for Akop Torosian.

On December 16, 2021, Judge Hofer conducted a hearing concerning several scheduling matters.[1] After conferring with counsel, on his own motion, Judge Hofer continued the trial date from March 7, 2022 to October 17, 2022.

On May 17, 2022, Judge Hofer conducted a “Status Conference Re Mediation and Discovery” with the parties in the Fitilchyan Action. Mark Ringsmuth from The Phillips Firm appeared for Robert Torosian; and Robert was also present on Court Connect. Judge Hofer’s Clerk noted the following in the minute order: “Counsel inform [sic] the Court that written discovery has been completed.”

From July 2021 to May of 2022, counsel from The Phillips Firm filed three Case Management Statements on behalf of Robert Torosian. In Section 16 of the Statements relating to discovery, Robert’s counsel indicated that he would be conducting various forms of discovery, including taking depositions of the Plaintiffs and conducting medical examinations, “Per Code.”

On August 17, 2022, as the result of an oral stipulation of the parties, Judge Hofer continued the trial again, from October 17, 2022 to March 27, 2023.

On October 10, 2022, both cases were reassigned to the Pasadena Courthouse, to the Honorable Margaret L. Oldendorf.

The parties apparently engaged in a number of communications back and forth regarding the scheduling of depositions. Ultimately, Fitilchyan and Gasparyan filed motions to compel the depositions of the Torosians; and Robert filed a motion to compel the depositions of Fitilchyan and Gasparyan. This Court denied the motions seeking orders compelling Robert’s deposition, as well as the depositions of Fitilchyan and Gasparyan, because there was no showing that they in fact failed to appear on specific dates pursuant to notice or agreement. The Court did grant the Plaintiff’s motion to compel as to Akop Torosian, because he did fail to appear for his remote deposition on June 22, 2021. The Court ordered Akop to appear for his deposition within twenty days of January 1, 2023.[2]

On January 9, 2023, Robert Torosian’s counsel apparently served further deposition notices for the depositions of Fitilchyan and Gasparyan. On January 31, 2023, he obtained certificates of non-appearance for these depositions.[3] However, Robert never filed a motion to compel the depositions based on this non-appearance.

On February 28, 2023, again pursuant to stipulation, this Court granted a further continuance of the trial, from March 27, 2023, to October 31, 2023. Counsel represented that the reason for the continuance was the complexity of the case, and the need to take numerous physician depositions. The Court noted in the minute order that the “[d]iscovery and motion dates and deadlines are to follow the new trial date.”[4]

The Court conducted a Status Conference on June 23, 2023. The Court emphasized that the final status conference and trial dates were to remain as set.

On August 25, 2023, Robert filed an ex parte application to continue the trial, in part due to the need to take numerous depositions. This Court denied the application, and noted: “There is no good cause showing why so much discovery is occurring so late in this case.” (Minute Order 8/28/23.)

On August 29, 2023 -- one day after his continuance request was denied, Robert apparently served another set of deposition notices for Fitilchyan and Gasparyan. His counsel also served requests for medical examinations on both Plaintiffs. Robert’s counsel also served deposition notices as to Plaintiffs Arzumanova and Hovhanissyan on September 6, 2023.

On September 11, 2023, Robert served amended notices for the medical examinations of Fitilchyan and Gasparyan, to take place on September 20, 2023 and September 21, 2023, respectively. Neither Plaintiff appeared for their examinations.[5] Robert filed motions to compel the depositions on September 26, 2023. The hearing was set for October 27, 2023 -- four days before trial was scheduled to commence.

On October 9, 2023, this Court denied another ex parte application by the Torosians to continue the trial and the discovery cutoff and related dates.

At the Final Status Conference on October 19, 2023, the Court noted that a number of pretrial documents (especially those filed by the Torosians) were filed only a day or two before the FSC. Accordingly, the Court continued the FSC to the trial date of October 31, 2023, to be heard immediately prior to the start of trial.

On October 25, 2023, Defendant Akop Torosian filed a Chapter 13 bankruptcy petition in his home state of Florida. As a consequence, the Court stayed the Fitilchyan Action and vacated the trial and all other dates.

On November 16, 2023, Robert’s counsel filed a Substitution of Attorney. The law firm of MacDonald and Cody substituted in as his counsel in place of The Phillips Firm. On March 1, 2023, Robert’s new counsel filed the instant motion to reopen discovery, and scheduled it for hearing on April 30, 2024.

On March 8, 2024, this Court lifted the stay in its entirety, because the Bankruptcy Court dismissed Akop’s bankruptcy petition. The court set a Status Conference for March 25, 2024, and advanced Robert’s motion to reopen discovery to the same date.

Robert Torosian urges that discovery should be reopened, as he sought the Plaintiffs’ depositions before the case was stayed, and was unable to obtain discovery during the bankruptcy stay. (Motion p. 11: 4-6; see also Hill Decl., Exhs. G-AA.) He urges that these depositions and medical examinations seek relevant information as to Plaintiffs’ personal injuries and damages.

Secondly, Robert argues that permitting this discovery will not affect the current trial date, as one has not yet been set after the most recent stay. (3/8/24 Minute Order.)

Thirdly, Robert urges he has been diligent in seeking discovery, as he sought the discovery before the latest stay; and he served many notices of deposition prior to the bankruptcy stay. (See Motion p. 13: 6-22.)

Robert also urges that permitting discovery will not prejudice Plaintiffs as there is no currently scheduled trial date, and he is entitled to conduct discovery concerning Plaintiffs’ claims and damages. (Motion p. 13: 23.) Robert urges that he will suffer severe prejudice if discovery is not reopened. (Motion p. 14: 14-24.)

Robert then urges that the fourth factor of CCP Section 2024.050 weighs in favor of reopening discovery as there have been five trial dates set in the case, with various continuances and stays occurring throughout the history of the litigation. (Motion p. 15: 4-9.)

Lastly, Robert urges that public policy favors trying the case on its merits. He cites Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246-1247 in support of this argument.

In opposition, Plaintiffs argue strenuously that this motion should be denied. Plaintiffs argue that the motion to reopen is in effect an improper motion for reconsideration, as the Court has previously denied the same relief twice. (Opposition p. 8: 23-26.) Plaintiffs also urge that the motion untimely, because it is being presented well past the previous discovery cutoff, and more than fifteen days after the deadline for discovery motions based on the last trial date. (See CCP § 2024.020(a); see also Opposition p. 9: 11-21.) Plaintiffs also argue the fact that the Torosians sought to conduct discovery shortly prior to the bankruptcy stay is not a sufficient justification for reopening discovery now. (See Opposition p. 10: 3-4.)

Plaintiffs argue in particular that the Torosians have failed to proceed with diligence in pursuing discovery. They argue that the factors set forth in CCP Section 2024.050(b) do not support the request to reopen. (Opposition p. 12: 11- p. 16: 2.) Plaintiffs argue that “the prejudice to Plaintiffs will be real and will be severe, and restarting discovery from scratch will lead to extensive further litigation, extensive discovery motions, great expense, further imposition on this Court, and a lengthy delay of trial.” (Opposition p. 14: 24-26.)

In reply, Robert’s counsel urges that “[t]he Opposition focuses on the failures of prior defense counsel and the age of this case.” (See Reply p. 2: 8.) He further argues “Defendant is represented by new counsel who substituted in after discovery was closed and Defendant should not be punished for the sins of his prior legal representation.” (Reply p. 2: 13-14.)

The Court agrees with Plaintiffs that Torosian has not shown good cause to reopen discovery. Even taking into account the lengthy stay due to the criminal proceedings, the parties have had over three years during the life of this action to conduct discovery and to bring necessary motions to compel, etc. Frankly, none of the parties involved in the Fitilchyan Action have proceeded with the diligence and effort that a case of this type warrants. As set forth in the procedural history set forth in Section V above, the Torosians have had more than ample opportunity to conduct discovery and prepare for trial. Torosian’s lack of diligence is significant; and he has failed to provide the Court with any real justification as to why he has been unable to complete discovery within the required time.[6]

Given the chronology of events in this case; the length of time that has elapsed between the start of the case and the present; the amount of time that was available for discovery to have been conducted; the fact that the latest stay due to Akop’s bankruptcy occurred on the eve of the previously-scheduled trial date; the significant lack of diligence on the part of Defendants in pursuing discovery; and the potential prejudice to Plaintiffs if the motion is granted; the Court declines to find good cause to reopen discovery.

For the foregoing reasons, Defendant Robert Torosian’s motion to reopen discovery is denied. The Court schedules a Trial Setting Conference for __________, 2024 at 8:30 a.m. in this Department.

[1] Among other things, Judge Hofer discussed with the parties the possible consolidation of the actions. No consensus was ever reached on this issue, so the cases remained related but not consolidated. It was not until extremely late in the history of both cases that the Torosians formally sought to consolidate them. This request (which was a reversal from prior positions taken by the Torosians in the Fitilchyan Action) was denied by this Court.

[2] Akop apparently never appeared for his deposition. The record does not reflect that Plaintiffs filed any subsequent motion to compel.

[3] The parties disagreed about the priority for the taking of the depositions. Plaintiffs’ counsel took the position that, because he had apparently noticed the depositions of the Torosians first, he should be entitled to complete those depositions before the Torosians took the depositions of Plaintiffs.

[4] Up until this point, the previous continuance orders did not specifically indicate whether the discovery cutoff and other deadlines tracked the new trial date; although the Court presumes that this was the case.

[5] It appears the parties were never able to resolve their disagreement regarding the order of taking depositions.

[6] The Court is not persuaded that it should grant the motion based upon the presumed “sins” of Torosian’s prior counsel. Robert has been represented by three reputable firms in this case since March of 2021. To the extent his current counsel is making an indirect request for relief under CCP Section 473(b), the Court declines to find, based on the evidence set forth in this motion, that such relief would be warranted.