Judge: Mark H. Epstein, Case: SC126845, Date: 2023-02-10 Tentative Ruling

Case Number: SC126845    Hearing Date: February 10, 2023    Dept: R

To clarify, regarding today’s ex parte, here is what the court intended.  Farzaneh is plainly aligned with the defense, or at least that is the only reasonable inference from the evidence at hand.  When plaintiffs belatedly entered his default very close to trial, he belatedly suddenly decided to participate in the suit (although the triggering event was more likely defendants’ intention to call him as a witness and their contacting him for that purpose).  His motion—coming well after the discovery cut-off and as the case was being sent to Department 1 for long cause determination—would plainly have prejudiced plaintiffs had it been granted outright.  To mitigate that prejudice, the court ordered that Farzaneh make himself available for deposition forthwith.  Notwithstanding that order, and notwithstanding Farzaneh’s prior declarations that the court found not to be credible, Farzaneh revoked his agreement to be deposed, instead conditioning it on plaintiffs withdrawing their demurrer to his answer.  That issue has now been resolved, or at least the court has issued its ruling.

Because the sole purpose of the deposition was to mitigate prejudice to plaintiffs from allowing Farzaneh to vacate the default that had been taken against him, defendants have no standing to seek to “perpetuate” his testimony.  The deposition is a one-way street.  The court might well feel differently if there was some reason to believe that Farzaneh was on death’s door and would not make it to trial, but that is not the basis of defendant’s motion.  And the court notes that defendants had literally years to take Farzaneh’s deposition while this case was pending, yet seemingly preferred not to do so (presumably in order to bring him at trial without plaintiffs having had the benefit of deposition).  Their sudden concern to preserve testimony rings hollow.  The request is therefore DENIED.  If, based on the actual deposition, they have solid grounds to need to take his deposition, they may seek leave of court at that time to do so.  They will need to make a compelling showing.

The court will not hear argument on this matter today.