Judge: Melvin D. Sandvig, Case: 22CHCV00073, Date: 2023-09-07 Tentative Ruling

Case Number: 22CHCV00073    Hearing Date: September 7, 2023    Dept: F47

Dept. F47

Date: 9/7/23

Case #22CHCV00073

 

MOTION TO COMPEL DEPOSITION

 

Motion filed on 8/14/23.

 

MOVING PARTY: Plaintiff 5th Street B.P., LLC

RESPONDING PARTY: Defendants/Cross-Complainants Lori Banks and A Thread Ahead, Inc.

NOTICE: ok

 

RELIEF REQUESTED: An order compelling Defendant/Cross-Complainant A Thread Ahead, Inc. (ATA) to have its person most knowledgeable submit to an oral deposition by Plaintiff 5th Street B.P., LLC.  Additionally, Plaintiff requests sanctions against ATA and its counsel, Armen  Mitilian, jointly and severally in the amount of $4,950.00. 

 

RULING: The motion is granted as set forth below. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a commercial lease between Plaintiff 5th Street B.P., LLC (Plaintiff) and Defendants Lori Banks (Banks) and A Thread Ahead, Inc. (ATA) (collectively, Defendants).  Plaintiff’s operative First Amended Complaint contains a single cause of action for breach of contract based on unpaid rent and destruction of property.  Defendants have cross-complained against Plaintiff and Adom Ratner-Stauber for breach of contract, assault, battery and intentional infliction of emotional distress. 

 

On 2/9/23, Plaintiff served its first Notice of Deposition of ATA’s PMK (person most knowledgeable) for 2/21/23.  (Meyers Decl., Ex.B).  Along with that notice, Plaintiff’s counsel included a letter which stated that he had tried to call ATA’s counsel twice on 2/9/23 and if the 2/21/23 date did not work to “please contact me to arrange a mutually convenient date.” (emphasis added) (Meyers Decl., Ex.A).  Despite the foregoing, on 2/13/23, ATA’s counsel took issue with the unilateral selection of the deposition date, indicated that the 2/21/23 date was not available but did not provide any alternative dates.  (Meyers Decl., Ex.D).  After further email communications between counsel, on 2/14/23, ATA served the following objections to the deposition notice:

 

“1. Thread Ahead’s counsel and Thread Ahead are not available on the date unilaterally selected without regard for the schedule of counsel and Thread Ahead. Accordingly, neither counsel nor Thread Ahead will appear on the noticed date. Counsel is unable to attend the deposition as noticed because counsel is scheduled to start multi-day and multi-week jury trials on February 24, March 6, March 20, and March 30. On April 24, counsel is scheduled to start a 3-4 week jury trial, which is very close to the 5 year rule. In addition to the days in trial, depositions and other activities related to these trials have been scheduled and take priority.

 

2. The scheduling of the deposition is a violation of the Guidelines for Civility in Litigation and applicable law regarding the scheduling of depositions. Purported Plaintiff’s and its counsel’s bad faith is further evidenced by the serving of the Notice with minimum statutory notice while failing to act in good faith prior to serving the Notice. In that regard, Purported Plaintiff’s counsel did not bother to send any message by email asking about scheduling instead making less than a minimal effort by placing two calls on the same day [February 9] within 1.5 hours (according to counsel’s records), not leaving a voice message, then unilaterally scheduling the deposition, which is hardly reasonable and is not in good faith. Rather, to be cooperative, counsel for Thread Ahead sent a message by email to Purported Plaintiff’s counsel noting missed calls, no messages and asking if the calls were intended. Instead of receiving a response inquiring about depositions, a message was received on February 11, Saturday, stating the deposition was unilaterally scheduled.

 

3. Thread Ahead and its counsel do not consent to several of the imposed conditions pertaining to the taking of the deposition as demanded in the Notice without any discussion.

 

4. Further objection is made as the Notice does not comply with Code of Civil Procedure sections 2025.220 and 2025.230.

 

5. Further objection is made as Purported Plaintiff does not have standing or the right to take any action in this matter, including taking depositions given it is a nonlegal entity, which was admitted by Purported Plaintiff and its counsel in pleadings. Purported Plaintiff has not done anything to resolve this issue despite having been so informed months ago thereby jointly continuing to perpetrate a fraud on the Court.” 

 

(Meyers Decl., Ex.E, F).     

 

On 2/16/23, ATA’s counsel offered to schedule the deposition in May and on 2/17/23, Plaintiff’s counsel requested that ATA’s counsel provide available dates in May.  (Meyers Decl., Ex.E, pp.42, 45).  After further attempts to meet and confer, on 2/28/23, ATA’s counsel provided the date of 5/19/23 which was eventually agreed upon by Plaintiff’s counsel.  (Meyers Decl., Ex.E, pp.49, 52).  Thereafter, on 3/10/23, Plaintiff served a Second Notice of Deposition of ATA’s PMK for 5/19/23.  (Meyers Decl., Ex.H).

 

On 5/11/23, Plaintiff’s counsel called and emailed ATA’s counsel to confirm that the 5/19/23 deposition would proceed.  (Meyers Decl., Ex.I).  On 5/12/23, ATA’s counsel responded by stating: “I am aware of a potential conflict, but I am not informed the potential conflict materialized such that the deposition needs to be rescheduled. I will let you know if my information changes.”  (Meyers Decl., Ex.I, p.70).  Plaintiff’s counsel replied: “In simple English, does the deposition need to be rescheduled or not? If it does, please provide a date on which you and your client will actually be available.”  (emphasis added) (Meyers Decl., Ex.I, p.71).  Thereafter, on 5/12/23, ATA served the following objections to the Second Deposition Notice:

 

“1. Thread Ahead and its counsel do not consent to several of the imposed conditions pertaining to the taking of the deposition as demanded in the Notice without any discussion.

 

2. Further objection is made as the Notice does not comply with Code of Civil Procedure section 2025.220, including because the attempt to request the production of documents fails as no categories are identified, the attempted request is not reasonably particularized and does not specifically describe any individual items, is vague, ambiguous and overly broad, and is the equivalent of an improper omnibus request.

 

3. Further objection is made as the Notice does not comply with Code of Civil Procedure section 2025.230, including because the attempt to identify categories of testimony for the Person Most Qualified fails as the attempted request is not reasonably particularized, and is are vague, ambiguous and overly broad.

 

4. Further objection is made as Purported Plaintiff does not have standing or the right to take any action in this matter, including taking depositions given it is a nonlegal entity, which was admitted by Purported Plaintiff and its counsel in pleadings. Purported Plaintiff has not done anything to resolve this issue despite having been so informed months ago thereby jointly continuing to perpetrate a fraud on the Court. The deposition was scheduled in good faith on the presumption Purported Plaintiff would have taken action to correct the fraud perpetrated on the Court and a proper Plaintiff would take the deposition. No corrective action was taken.

 

5. There is a potential conflict, which may cause the deponent to not be available for the deposition on the scheduled date, and counsel for Purported Plaintiff will be informed if the potential conflict becomes an actual conflict.”

 

(Meyers Decl., Ex.J).

 

On 5/12/23,  Plaintiff’s counsel called ATA’s counsel and sent a follow-up email; then, on 5/14/23, ATA’s counsel sent an email stating that the deponent would be unable to appear on 5/19/23.  (Meyers Decl., Ex.I, pp.69, 72).

After efforts to meet and confer regarding a new deposition date proved unsuccessful, on 5/23/23, Plaintiff served ATA with a Third Notice of Deposition for ATA’s PMK set for 6/16/23.  (Meyers Decl., Ex.I, p.74; Ex.K).  Thereafter, ATA’s counsel responded by email stating that he did not know if 6/16/23 was available, but 5/26/23 was open.  (Meyers Decl., Ex.I, p.75).

 

On 5/24/23, Plaintiff’s counsel responded by stating: “May 26 is a Jewish holiday, and I cannot do that date. Provide other dates.”  (Meyers Decl., Ex.I, p.76).  ATA’s counsel took issue with the fact that Plaintiff’s counsel did not use the word “please” when asking him to provide other dates and responded, in part, by asking Plaintiff’s counsel: “Did you grow up with animals? Is the word ‘please’ not in your vocabulary? You don’t direct me to do anything. I don’t work for you nor am I your client. You ask.”  (Meyers Decl., Ex.I, p.77).  Counsel for the parties then indicated that the issue would be brought before the Court.  (Meyers Decl., Ex.I, pp.77, 79).

 

On 6/8/23, ATA’s counsel served the following objections to the Third Deposition Notice:

 

“1. Thread Ahead and its counsel do not consent to several of the imposed conditions pertaining to the taking of the deposition as demanded in the Notice without any discussion.

 

2. Further objection is made as the Notice does not comply with Code of Civil Procedure section 2025.220, including because the attempt to request the production of documents fails as no categories are identified, the attempted request is not reasonably particularized and does not specifically describe any individual items, is vague, ambiguous and overly broad, and is the equivalent of an improper omnibus request.

 

3. Further objection is made as the Notice does not comply with Code of Civil Procedure section 2025.230, including because the attempt to identify categories of testimony for the Person Most Qualified fails as the attempted request is not reasonably particularized, and is vague, ambiguous and overly broad.

 

4. Further objection is made as Purported Plaintiff does not have standing or the right to take any action in this matter, including taking depositions given it is a nonlegal entity, which was admitted by Purported Plaintiff and its counsel in pleadings. Purported Plaintiff has not done anything to resolve this issue despite having been so informed months ago thereby jointly continuing to perpetrate a fraud on the Court.

 

5. Thread Ahead’s counsel and Thread Ahead are not available on the date unilaterally selected without regard for the schedule of counsel and Thread Ahead. Accordingly, neither counsel nor Thread Ahead will appear on the noticed date. Counsel is unable to attend the deposition as noticed because counsel is starting a one-week trial on June 13, 2023, in a case impacted by the 5-year rule.

 

6. The scheduling of the deposition is a violation of the Guidelines for Civility in Litigation and applicable law regarding the scheduling of depositions. Purported Plaintiff’s counsel made minimal effort by placing one phone call with one email withing minutes of each other while unilaterally scheduling the deposition, which is hardly reasonable and is not in good faith.”

 

(Meyers Decl., Ex.L).

 

On 6/12/23, Plaintiff’s counsel discovered that the trial which ATA’s counsel claimed caused a conflict with the 6/16/23 deposition date had been cancelled; therefore, Plaintiff’s counsel emailed ATA’s counsel indicating that he expected the deposition to proceed.  (Meyers Decl., Ex.M).  ATA’s counsel never responded.  (Meyers Decl. ¶4).  Plaintiff’s counsel appeared for the deposition on 6/16/23; however, ATA did not.  (Meyers Decl., Ex.N).  Plaintiff’s counsel called ATA’s counsel to inquire about the non-appearance but there was no answer.  (Meyers Decl., Ex.N).  Plaintiff’s counsel followed-up with an email to ATA’s counsel on 8/3/23.  (Meyers Decl., Ex.O).  No response was received.  (Meyers Decl. ¶4). 

 

Thereafter, on 8/14/23, Plaintiff filed and served the instant motion seeking an order compelling Defendant/Cross-Complainant A Thread Ahead, Inc. (ATA) to have its person most knowledgeable submit to an oral deposition by Plaintiff 5th Street B.P., LLC (Plaintiff).  Additionally, Plaintiff requests sanctions against ATA and its counsel, Armen  Mitilian, jointly and severally in the amount of $4,950.00.  ATA has opposed the motion and requested $4,950.00 in sanctions against Plaintiff and its counsel.  Plaintiff has filed a reply to the opposition.

 

ANALYSIS

 

CCP 2025.450 provides, in relevant part:

 

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

. . .

 

(g)(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

 

CCP 2025.410(a) provides:   

 

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.” (emphasis added).

 

Contrary to ATA’s assertion in the opposition, the Third Notice of Deposition for ATA’s PMK served on 5/23/23 for a 6/16/23 deposition date is not the only relevant issue before the Court.  (See Opposition, p.5:21-22).  The Court finds ATA’s counsel’s conduct in response to the First and Second Deposition Notices to be very relevant in deciding this motion. 

 

While the First Notice may have been untimely and unilaterally set the deposition date, ATA’s counsel fails to acknowledge that the notice was accompanied by a letter asking for alternative dates, if the noticed date did not work.  The Second Notice scheduled the deposition for a date, 5/19/23, offered by ATA’s counsel.  Additionally, despite the fact that the notice was served on 3/10/23, more than 2 months before the scheduled deposition date, ATA did not serve objections until 5/12/23, one week before the deposition date and only after Plaintiff’s counsel attempted to confirm the deposition date selected by ATA.

 

The Court finds that if ATA believed any of the objections to the Second Deposition Notice had merit and ATA wanted to cooperate in the discovery process, it would have served the objections well before a week before the deposition date so that any purported defects in the notice could have been resolved as there was plenty of time to do so between the time the notice was served and the deposition date.  The Court also finds that Plaintiff’s counsel’s request for deposition dates, without using the word “please,” after such conduct and after trying to schedule the deposition for over 4 months to be understandable under the circumstances.  Similarly, based on ATA’s counsel’s offer to appear for deposition on 5/26/23, in response to the Third Deposition Notice which scheduled the deposition for 6/16/23, it appears that ATA’s objections based on anything other than the date of the 6/16/23, were merely a further attempt to avoid ATA’s discovery obligations. 

 

The Court finds ATA’s objections to be without merit. 

 

CONCLUSION

 

Based on the foregoing, counsel for the parties are ordered to meet and confer by 9/13/23 regarding a mutually agreeable date, within the next 45 days, for the deposition of ATA’s person most knowledgeable/person most qualified (as the Court finds those terms to be interchangeable) to take place. 

 

The Court further finds that Plaintiff is entitled to an award of sanctions against ATA and its counsel, Armen G. Mitilian, in the amount of $4,950.00.  CCP 2023.010(d), (e), (h); CCP 2023.030(a); 2025.450(g)(1); (Meyers Decl. ¶6; Younessi Decl.).  The sanctions are payable within 30 days.