Judge: Melvin D. Sandvig, Case: 21CHCV00111, Date: 2023-03-08 Tentative Ruling

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Case Number: 21CHCV00111    Hearing Date: March 8, 2023    Dept: F47

Dept. F47

Date: 3/8/23

Case #21CHCV00111

 

MOTION TO COMPEL COMPLIANCE

WITH DEMAND FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH DEPOSITION OF HELGA A. ARMINAK

 

Motion filed on 1/4/23.

 

MOVING PARTY: Plaintiff Vav Plastics, Inc.

RESPONDING PARTY: Defendant Helga  Arminak

NOTICE: ok

 

RELIEF REQUESTED: An order compelling “defendant Helga Arminak” to comply with Plaintiff’s Demand for Inspection, Production and Copying propounded concurrently with Plaintiff’s Amended Notice of Deposition of Helga Arminak and Demand for Production of Documents dated 7/29/22.  Additionally, Plaintiff requests sanctions against Arminak and “their” attorneys of record in the amount of $4,050.00. 

 

RULING: The motion is denied.    

 

This action arises out of Plaintiff Vav Plastics, Inc.’s (Plaintiff) claim that Defendants Arminak Solutions dba KBL Cosmetics (Arminak Solutions) and Apackaging Group,  LLC (Apackaging) (collectively, Defendants) failed to pay for certain goods.  As a result, on 2/17/21, Plaintiff filed this action against Defendants for breach of oral contract (1st – 3rd causes of action) and common counts (4th – 7th causes of action).  On 6/4/21, Defendants filed an answer to the complaint.  On that same date Arminak Solutions filed a cross-complaint against Plaintiff for: (1) Breach of Contract, (2) Breach of the Covenant of Good Faith and Fair Dealing, (3) Declaratory Relief, (4) Breach of Express Warranty, (5) Breach of Implied Warranty of Merchantability, (6) Breach of Implied Warranty of Fitness for a Particular Purpose and (7) Negligent Interference With Prospective Economic Relations.  In response to Plaintiff’s demurrer to the cross-complaint, on 8/2/21, Arminak Solutions filed a First Amended Cross-Complaint alleging the same causes of action as the original cross-complaint.  On 8/26/21, Plaintiff answered the First Amended Cross-Complaint.   

 

On 3/25/22, Plaintiff first noticed the taking of Helga Arminak’s deposition.  The notice included a request for production of documents.  (See Manukyan Decl. ¶5, Ex.A).  The deposition was rescheduled several times with it eventually proceeding on 8/30/22 pursuant to an Amended Notice of Deposition served on 7/29/22 which included the same request for documents as the original Deposition Notice.  (See Manukyan Decl. ¶¶6-14, Ex.B-I).  Ms. Arminak did not produce any documents at her deposition.  (Manukyan Decl. ¶¶15-16, Ex.I).  For several months after the deposition, counsel for the parties met and conferred regarding the production of documents; however, no documents were produced.  (Manukyan Decl. ¶¶17-21, Ex.J-L).

 

On 1/4/23, Plaintiff filed and served the instant motion seeking an order compelling “defendant Helga Arminak” to comply with Plaintiff’s Demand for Inspection, Production and Copying propounded concurrently with Plaintiff’s Amended Notice of Deposition of Helga Arminak and Demand for Production of Documents dated 7/29/22.  (See Notice of Motion, p.2:5).   Additionally, Plaintiff requests sanctions against Ms. Arminak and “their” attorneys of record in the amount of $4,050.00.  (See Notice of Motion, p.2:14).  Ms. Arminak has opposed the motion.  Plaintiff has filed a reply to the opposition. 

 

Plaintiff noticed the deposition of Ms. Arminak, in her individual capacity, not as a representative Arminak Solution, LLC.  (See Manukyan Decl., Ex.H).  The motion seems to confuse Ms. Arminak’s status in this action.  While Ms. Arminak is affiliated with Arminak Solutions, LLC, she, as an individual, is not a party to the action.  Despite the foregoing, the notice of the instant motion incorrectly refers to Ms. Arminak as “defendant Helga Arminak” and seeks sanctions against her and “their” attorneys of record, perhaps implying that she is one of the defendants in this action.  (See Notice of Motion, p.2:5).

 

Additionally, the motion relies on the incorrect statutory authority for relief.  The motion cites to CCP 2031.010, et seq. and, specifically, CCP 2031.210, 2031.220, 2031.230, 2031.240, 2031.280 and 2031.320 as authority for the relief requested.  (See Motion, p.2:15-16, p.5:27-p.6:3).  CCP 2031.010, et seq. applies to inspection demands among parties.  Again, Ms. Arminak is not a party to this action.  A motion to compel the production of documents pursuant to a deposition notice falls under CCP 2025.480(a).  If the motion had cited the correct authority, the Court would have found it to be timely as the record was not complete until 12/22/22, at the earliest, and this motion was filed and served on 1/4/23.  See CCP 2025.480(b).

 

More importantly, however, the motion is moot due to the fact that Ms. Arminak has since served responses to the document requests.  (See Flynn Decl. ¶¶49-50, Ex.J).  While Plaintiff takes issue with the fact that the responses are not verified, Plaintiff set forth no authority which requires verification of responses to document requests which accompanied a notice of deposition.  (See Flynn Decl. ¶¶51-53, Reply, generally).  In the reply, Plaintiff argues that the motion is not moot because it is dissatisfied with Ms. Arminak’s responses to the document requests.  (See Reply, p.3:22-p.7:10).  In such case, Plaintiff must make a motion to compel production of such documents with an accompanying separate statement which addresses each of the requests and responses thereto.  See CRC 3.1345(a)(5), (c). 

 

The Court finds that sanctions are not warranted.  Again, Plaintiff cites to inapplicable authority, CCP 2031.320(b), for the request.  (See Motion, p.7:2-3).  Additionally, the Court finds that Ms. Arminak and her counsel acted with substantial justification and imposing sanctions against them would be unjust under the circumstances.  CCP 2025.480(j).  The evidence indicates that counsel for the parties were working to informally resolve the matter when the instant motion was filed.  (See Manukyan Decl.; Flynn Decl.).