Judge: Michael E. Whitaker, Case: 23SMCV01959, Date: 2025-05-06 Tentative Ruling

Case Number: 23SMCV01959    Hearing Date: May 6, 2025    Dept: 207

TENTATIVE RULING

BACKGROUND

This action stems from a commercial landlord-tenant dispute. 

The operative Second Amended Complaint (“SAC”) alleges Plaintiff Merchants Barstow LLC (“Plaintiff”) leased 24 buildings from Defendants Barstow Outlet, LLC and Fortuna Assessment Management (collectively, “Defendants”), each of which Plaintiff subleases to separate cannabis businesses.  (SAC ¶ 1.)  Plaintiff alleges that Defendants misrepresented that these buildings each had 800 AMPS of power capacity, which cannabis businesses require, when they only had 400 AMPS of capacity, which is insufficient to run a cannabis business.  (SAC ¶¶ 2-14.) 

On January 22, 2025, Defendant Barstow Outlet, LLC (“Defendant Barstow”) filed a cross-complaint against Plaintiff, Garnick “Greg” Hakopyan, and Norair Madatian (“Madatian”) for breach of lease and breach of guaranty.

Defendant Barstow now moves to compel Madatian’s deposition and for monetary sanctions.  Madatian opposes the motion and Defendant Barstow replies. 

ANALYSIS

Motion to Compel

            “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

            Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

“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).)

Similarly, 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(a).)  A nonparty opposing such a motion in bad faith or without substantial justification may be subject to sanctions. (Code Civ. Proc., § 1987.2(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”].)

            Here, on June 17, 2024, before Madatian was a party to this action, Defendant Barstow served Madatian with a notice of deposition, scheduling the deposition for July 11, 2024.  (Sprague Decl. ¶ 4.)  Per the agreement of counsel, that deposition was rescheduled for July 23, 2024.  (Id. at ¶ 5.)  On July 12, 2024 Defendant Barstow served Madatian with a new notice of deposition for the July 23, 2024 deposition date.  (Ibid.)

            On July 23, 2024, Madatian did not appear for his deposition without explanation.  (Sprague Decl. at ¶ 6 and Ex. A.)

            Defendant Barstow again noticed Madatian’s deposition for February 18, 2025.  (Sprague Decl. at ¶ 11.)  A couple of days before the deposition, Madatian’s counsel reached out to inform Defendant Barstow that Madatian would not be appearing at the deposition due to a medical condition.  (Ibid.) 

            Madatian’s counsel has been unresponsive to Defendant Barstow’s subsequent inquiries about Madatian’s availability for deposition.  (Sprague Decl. at ¶¶ 12-14.)

            Defendant Barstow brings this motion pursuant to Code of Civil Procedure section 2025.450—the section to compel the deposition of a party to the action—not section 1987.1—the section to compel the deposition of a nonparty to the action.  Because Madatian’s failure to attend the July 23, 2024 deposition occurred at a time when Madatian was not yet a party to the action, and because Defendant subsequently re-noticed Madatian’s deposition, the issues that occurred prior to the February 18, 2025 notice are not relevant to this motion. 

            With respect to Madatian’s failure to appear for the February 18, 2025 deposition, Defendant has demonstrated that Madatian’s deposition was properly noticed and Madatian failed to appear.  Therefore, the Court grants Defendant’s motion to compel Madatian’s deposition. 

Sanctions

Defendant also seeks monetary sanctions against Madatian and his counsel in the amount of $6,450 for reasonable attorneys’ fees and costs incurred in bringing the instant motion.           

Code of Civil Procedure section 2025.450, subdivision (g)(1) provides:

If a motion [to compel a deposition] is granted, the court shall impose a monetary sanction . . . 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.

            However, because Madatian’s failure to appear for deposition was excused by Madatian’s medical condition, the Court finds that Madatian acted with substantial justification and the imposition of monetary sanctions under these circumstances would be unjust. 

CONCLUSION AND ORDER

Therefore, the Court Grants Defendant’s motion to compel Madatian’s deposition and orders Madatian to sit for deposition within 20 days of notice of this Order.  However, because the Court finds that Madatian’s failure to attend the deposition was excused by his medical condition, the Court finds monetary sanctions unwarranted and denies Defendant’s request for monetary sanctions.    

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

DATED:  May 6, 2025                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court