Judge: Michael E. Whitaker, Case: 20STCV36606, Date: 2022-12-09 Tentative Ruling

Case Number: 20STCV36606    Hearing Date: December 9, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Defendant Robert Roy Mehdizadeh (“Defendant”) moves for an Order compelling Plaintiff Aaron Stillman (“Plaintiff”) to submit to the continuation of his deposition, which originally began on July 7, 2022, and which was improperly and unilaterally ended by Plaintiff’s counsel of record, Seymone Javaherian of Javaherian & Ruszecki, P.C. (hereinafter, “Plaintiff’s counsel”), pursuant to Code of Civil Procedure section 2025.450, subdivision (a).  (Code Civ. Proc., § 2025.450, subd. (a).)  Defendant additionally moves for an Order imposing monetary sanctions against Plaintiff “and/or” Plaintiff’s counsel in the amount of $2,500.00, pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1).  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  Defendant makes the present Motion on the ground Plaintiff’s counsel improperly suspended Plaintiff’s deposition on July 7, 2022, and has since refused to reschedule Plaintiff’s deposition to a mutually agreeable date, despite Defendant’s counsel’s various meet and confer attempts.

Plaintiff has filed an Opposition to Defendant’s Motion, requesting that this Court refrain from ordering Plaintiff to submit to a continuation of his previously-noticed deposition, and from issuing monetary sanctions against Plaintiff and Plaintiff’s counsel.  Plaintiff represents that Plaintiff’s counsel’s unilateral suspension of the deposition was justified and caused by Defendant’s counsel improper behavior.  Specifically, Defendant’s counsel was improperly instructing Plaintiff to answer certain deposition questions which Plaintiff’s counsel had already instructed Plaintiff not to answer.  In Opposition to Defendant’s Motion, Plaintiff requests that this Court issue monetary sanctions against Defendant and/or Defendant’s counsel of record in the amount of $2,500.00.   

ANALYSIS

“If, after service of a deposition notice, a party to the action . . . , 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.”  (Code Civ. Proc., § 2025.450, subd. (a), emphasis added.)

“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.”  (Code Civ. Proc., § 2025.450, subd. (b).)

“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.”  (Code Civ. Proc., § 2025.450, subd. (g)(1).)

The Court observes the parties do not dispute that, on June 2, 2022, Plaintiff was properly served with a deposition notice, which informed Plaintiff that his deposition would proceed on July 7, 2022 at approximately 10:00 a.m.  (D’Andrea Decl., ¶ 5, Ex. A;  Javaherian Decl., ¶ 3.)  The Court further observes the parties do not dispute that, in response to the deposition notice, Plaintiff did not serve an objection under Code of Civil Procedure section 2025.410.  (D’Andrea Decl., ¶ 6 [“Plaintiff never objected to that deposition notice and only requested the deposition be held remotely instead of in person.  Defendant agreed to hold the deposition remotely.”].) 

Most importantly, the Court observes the parties do not dispute that Plaintiff failed “to proceed with” the deposition, despite having been properly served with the deposition notice, and despite not having served a valid objection in response to the deposition notice.  (D’Andrea Decl., ¶ 8 [“By approximately 11:30 a.m. Plaintiff’s counsel—Seymone Javaherian—unilaterally suspended the deposition.”]; Javaherian Decl., ¶ 6 [“At approximately 11:30 a.m. Plaintiff’s counsel—Seymone Javaherian—was forced to unilaterally suspend the deposition.”].)  The parties agree Plaintiff only participated in approximately one and a half hours of deposition before Plaintiff’s counsel unilaterally suspended the same, resulting in Plaintiff’s failing “to proceed with” his deposition.  (Code Civ. Proc., § 2025.450, subd. (a).)  Accordingly, the Court concludes Defendant is entitled to an Order compelling Plaintiff to submit to a continuation to his deposition, pursuant to Code of Civil Procedure section 2025.450, subdivision (a).  (Ibid.)

The Court additionally notes that the parties’ central dispute is if, and against whom, monetary sanctions should be awarded, pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1).  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  In conjunction with the present Motion, Defendant moves for an Order imposing monetary sanctions equal to $2,500.00 against Plaintiff and/or Plaintiff’s counsel on the ground Plaintiff’s counsel was argumentative and disrespectful while defending Plaintiff’s deposition.  In Opposition, Plaintiff contends it was actually Defendant’s counsel who was argumentative and disrespectful in conducting Plaintiff’s deposition and, as a result, monetary sanctions should issue against Defendant’s counsel in an amount of $2,500.00.  The Court observes that the relevant excerpt of the deposition transcript provides the following:

Q: (By Ms. D’Andrea) Prior to this accident, have you ever treated with a psychologist?

Mr. Javaherian: Hold on, hold on. I’m gonna object. Physician/patient privilege and privacy. Buy I will let him respond as to anything that he’s claiming now as far as a mental injury or effect whether he’s had –

Ms. D’Andrea: No

Mr. Javaherian: You gotta let me finish. It’s my turn to talk right now. I will let him answer if he’s had any of the same issues he’s had now at a prior time.

Ms. D’Andrea: That wasn’t the question.

Mr. Javaherian: Okay. Instruction not to answer then.

Ms. D’Andrea: Seymone, you are gonna make this really, really hard. And I’m gonna have to cancel the deposition, go in for a motion, and it’s not gonna be fun for you.

Mr. Javaherian: Oh, it’s fun for me.  I enjoy those things.

The Witness: You should let me answer.

Mr. Javaherian: All right. Go ahead.

(By Ms. D’Andrea) The question is – And you need to stop doing speaking objections. The question is: Have you ever treated with a psychologist prior to the incident?

A: No

Mr. Javaherian: Same Objection, though.

Q: (By Ms. D’Andrea) Have you ever treated with a psychiatrist prior to the incident?

Mr. Javaherian: Same objection.

The Witness: Don’t answer or what?

Ms. D’Andrea: No. You can answer.

Mr. Javaherian: Hold on. Kathy, you are not gonna tell my client when he can answer because there’s an instruction not to answer out there. Correct?

Ms. D’Andrea: I don’t know. Is there?

Mr. Javaherian: There is. You’ve got to pay attention. Okay? My instruction is not to answer. You can limit that question and I’ll allow him to answer.

Ms. D’Andrea: I’m not limiting the question.

Mr. Javaherian: Then instruction not to answer. Move along.

(Javaherian Decl., Ex. A at pp. 35:10-37:4.)

Q: On the day of the incident had you experienced any marital issues that could have caused stress?

Mr. Javaherian: Hold on. Objection. Privacy. Instruction not to answer. You want to know the marital problems now? Move along.

Ms. D’Andrea: Are you going to listen to your attorney’s instruction?

The Witness: Yeah I guess so.

Ms. D’Andrea: Are you sure.

Mr. Javaherian: Wait hold on Kathy this deposition over now. He just told you he’s not gonna answer and now you’re asking to change his mind about that. This deposition over. We will talk later. Okay?

 Ms. D’Andrea: I haven’t agreed to end this deposition.

(Javaherian Decl., Ex. A at p. 69:4-20.)

In consideration of the deposition transcript, the Court concludes the behavior of both Plaintiff’s counsel (Seymone Javaherian of Javaherian & Ruszecki, P.C.) and Defendant’s counsel (Kathy D’Andrea of Olson Law Group, APC) are less than honorable and, indeed, violate the “Guidelines for Civility in Litigation,” which have been adopted by this Court.  (Super. Ct. L.A. County, Local Rules, rule 3.26 [“The guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3. A.[, entitled, Guidelines for Civility in Litigation]”].)  The Court finds the imposition against either party and their counsel of record to be unjust under the circumstances.    

CONCLUSION AND ORDER

Defendant’s Motion to Compel Deposition of Plaintiff is GRANTED in part.  Plaintiff is ordered to submit for deposition of no more than 7 hours excluding breaks within thirty days of this Court’s Order.  The parties’ counsel are ordered to meet and confer on a mutually convenient date for deposition.