Judge: Michael E. Whitaker, Case: 21SMCV01621, Date: 2023-10-09 Tentative Ruling

Case Number: 21SMCV01621    Hearing Date: October 9, 2023    Dept: 207

TENTATIVE RULING

MOTION

            This case arises from a dispute concerning a real estate transaction.  Defendant Charlieville View, LLC (“Defendant”), moves to compel non-party Moussa Shaaya (“Moussa”) to Appear and Testify at Deposition and to Produce Documents, and for monetary sanctions.  Moussa opposes the motion. 

LEGAL STANDARDS

Where the witness whose deposition is sought is not a party or a “party-affiliated” witness, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (a)(1).) If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subds. (a)-(b).) Where the deposition subpoena requires a witness to appear for the taking of a deposition, the Court may make an order directing compliance with the subpoena. (Code Civ. Proc., § 1987.1, subd. (a).) A nonparty opposing such a motion in bad faith or without substantial justification may be subject to sanctions. (Code Civ. Proc., § 1987.2, subd. (a).)

Similarly, Code of Civil Procedure section 1987.1, subdivision (a), provides that if a subpoena requires the production of documents, the Court may, upon motion reasonably made by a party, make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)

EVIDENTIARY OBJECTIONS

            Moussa objects to various statements in attorney Jacob Zadeh’s declaration on the bases of lack of foundation or personal knowledge, hearsay, and improper opinion.  The Court rules on Moussa’s objections as follows:

1.      Sustained

2.      Sustained

3.      Sustained

4.      Sustained

5.      Sustained

6.      Sustained

7.      Overruled

8.      Overruled

ANALYSIS

According to Defendant, non-party Moussa, whose son, cross-defendant David Shaaya (“David”) was the real estate agent involved in the underlying real estate deal, “played an integral part of the dealings between all parties involved.”  (Motion at pp. 1:25-2:7.)  As such, on August 31, 2023, Defendant served Moussa a Deposition Subpoena for Personal Appearance and Production of Documents and Things, with a noticed date of September 22, 2023.  (Motion at p. 3:15-18; Zadeh Decl. ¶ 7 and Ex. 2 thereto.) 

On September 15, 2023, Moussa objected to the deposition only on the basis that he was unavailable on the September 22, 2023 date noticed, but submitted substantive objections to the production requests.  (Motion at 3:22-26; Zadeh Decl. ¶¶ 10-11 and Ex. 3.)  Subsequently, Moussa’s counsel indicated Moussa would sit for deposition prior to the September 25 discovery cut-off date, but only if Defendant waived their right to the production of documents.  (Zadeh Decl. ¶ 14.)  Defendant refused, and Moussa refused to attend the deposition.  (Zadeh Decl. ¶ 14.) 

Moussa now opposes the motion on the bases that (1) the motion is not supported by admissible evidence and therefore Defendant has not shown good cause; (2) it is improper to compel Moussa to appear for deposition after the discovery cut-off; and (3) the document requests are not reasonably particularized.

1.      Admissible Evidence

The Court has sustained many of Moussa’s objections to the Zadeh Declaration, regarding statements of factual allegations, about which Zadeh has not established personal knowledge.  However, many of these allegations still appear in the operative cross-complaint and therefore can serve to frame the issues and the relevance of the requested discovery.  Moreover, the admissible portions of the Zadeh Declaration do indicate that Moussa was timely served with the subpoena, and did not substantively object to sitting for a deposition prior to the discovery cut-off date, other than minor scheduling issues, yet failed to appear.  (Zadeh Decl. ¶¶ 6-14.)

Therefore, the Court finds that the motion is supported by admissible evidence and Defendant has shown good cause.

2.      Discovery Cut-Off

Moussa’s other argument against sitting for a deposition at this point is that the discovery cut-off date has now passed.  (Opp. at pp. 11:9-12:10.)  The Court rejects this argument.  Moussa does not deny that Moussa has information that is relevant to this case, that Defendant timely served him with the deposition subpoena sufficiently in advance of the discovery cut-off date, or that Moussa was able to sit for a deposition prior to the discovery cut-off date, but refused to do so unless Defendant withdrew the accompanying document requests.  (Opp. at p. 11:23-27.)

Therefore, Moussa has not demonstrated any valid justification for failing to appear for deposition prior to the discovery cut-off.  As such, the Court grants Defendant’s request to compel Moussa’s deposition.

3.      Document Requests

Moussa’s production of documents is requested at the deposition.  Because Moussa has not yet appeared for the deposition, the Court finds that the motion to compel production of documents is not yet ripe. 

The Court notes that Defendant’s Separate Statement submitted in connection with the Motion includes arguments to compel further responses to the production requests, but the notice of motion and motion seek only “an order compelling, Moussa Shaaya, to appear and testify at his properly noticed deposition and to produce documents at deposition as specified in the deposition notice […]” pursuant to Code of Civil Procedure, section 2025.450, and monetary sanctions.  Because Defendant has not moved to compel further responses, the Court does not consider these arguments.

4.      Monetary Sanctions

Defendant also seeks monetary sanctions.  The Court finds that Moussa’s failure to appear for the properly noticed deposition constitutes a misuse of the discovery process, pursuant to Code of Civil Procedure section 2023.010, subdivision (d).  Therefore, the Court awards $700 in monetary sanctions, representing 2 hours to draft the Motion at an hourly rate of $350.

CONCLUSION AND ORDER

For the foregoing reasons, the Court grants Defendant’s request to compel Moussa’s deposition and compels Moussa to appear for a deposition on or before October 16, 2023.

The Court further awards monetary sanctions against non-party Moussa Shaaya in the amount of $700, payable to Defendant, by and through counsel for Defendant, within 10 days of notice of the Court’s order.

The Court denies Defendant’s motion to compel production of documents, as unripe, as Moussa was requested to bring the documents to the deposition, which has not yet occurred.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.   

DATED:  October 9, 2023                            ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court