Judge: Michael P. Linfield, Case: 23STCV12783, Date: 2024-02-02 Tentative Ruling

Case Number: 23STCV12783    Hearing Date: February 2, 2024    Dept: 34

SUBJECT:        Motion for an Order Compelling Defendant’s Deposition and Production of Documents Identified in Deposition Notice and an Order Awarding Monetary Sanctions

Moving Party: Plaintiffs Kostiantyn Kavelashvili, Natalia Veroshynska, and Kavelashvili Veroshynska, LP

Resp. Party:    Defendant Tabrizyan, LLC

The Motion to Compel Deposition is GRANTED. Defendant Tabrizyan, LLC shall make its person most qualified available for deposition within 20 days of the issuance of this Order.

        Monetary sanctions are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $2,500.00.

BACKGROUND:

        On June 5, 2023, Plaintiffs Kostiantyn Kavelashvili, Natalia Veroshynska, and Kavelashvili Veroshynska, LP filed their Complaint against Defendants Tabrizyan, LLC and Afsaneh Karimi on causes of action for breach of contract and declaratory relief.

        On January 5, 2023, Plaintiffs filed Motion for an Order Compelling Defendant’s Deposition and Production of Documents Identified in Deposition Notice and an Order Awarding Monetary Sanctions (“Motion to Compel Deposition”).

        On January 24, 2024, Plaintiffs filed their First Amended Complaint (FAC).

        On January 24, 2024, Defendant Tabrizyan, LLC (“Defendant”) filed its Opposition to the Motion to Compel Deposition.

        On January 26, 2024, Plaintiffs filed their Objections to Defendant’s Late-Filed Opposition and Reply in support of the Motion to Compel Deposition. Plaintiffs concurrently filed their Proposed Order.

ANALYSIS:

I.          Objection to the Opposition

Plaintiffs object to the Opposition, arguing that it was filed late.

        Plaintiffs are correct that the Opposition was filed late. The hearing on the Motion to Compel Deposition is scheduled for February 2, 2024. Nine court days before the hearing was January 22, 2024. As the Opposition was filed on January 24, 2024, there is no doubt that it was filed late. Indeed, Defendant acknowledges as much in the Opposition. (Opposition, p. 1, fn. 1.)

        However, the Court overrules the objection and considers the Opposition on its merits.

II.       Legal Standard

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

“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).)

III.     Discussion

A.      The Deposition and Documents Request

Plaintiffs move the Court compel Defendant’s person most qualified to attend their deposition, testify, and produce the documents in Defendants’ possession, all without objections. (Motion to Compel Deposition, p. 10:1–4.)

Plaintiffs’ Counsel declares that, as it relates to this case, the first deposition notice for this person most qualified was issued on August 28, 2023 for a deposition on September 11, 2023. (Motion to Compel Deposition, Decl. Kosten, ¶ 13.) After further efforts to resolve this issue, a further notice filed on December 1, 2023 for a deposition on December 12, 2023. Despite more back and forth, Defendant has not made its person most qualified available, nor has it produced any documents. (Id. at ¶¶ 14–35.)

Defendant opposes the Motion to Compel Deposition, arguing: (1) that there was not a sufficient good faith meet-and-confer before filing; (2) that the Motion to Compel Deposition does not show good cause for the production; (3) that the Motion to Compel Deposition is moot; and (4) that some of the materials sought in the requests are not relevant. (Opposition, pp. 9:12–13, 11:1, 12:5, 12:21.)

In their Reply, Plaintiffs argue: (1) that Defendants’ misconduct has continued, as exemplified by their late Opposition; (2) that the Opposition is intentionally broad and has an ulterior motive; (3) that the Opposition does not justify Defendant’s failure and refusal to be deposed; (4) that there was adequate meet-and-confer preceding the Motion to Compel Deposition; and (5) that the complaints about overbreadth of discovery are groundless. (Reply, pp. 2:21, 3:6, 3:22–23, 4:6, 4:16.)

The issue is simple. Plaintiffs have on multiple occasions noticed the deposition of Defendant’s person most qualified. Yet Defendant has not made this person available, despite more than adequate meeting and conferring by the Parties’ respective counsel. The issue is not moot, and the Court has not been presented with a sufficient reason why Defendant has not yet made its person most qualified available.

The Court GRANTS the Motion to Compel Deposition. Defendant Tabrizyan, LLC shall make its person most qualified available for deposition within 20 days of the issuance of this Order.

B.      Sanctions

Defendant’s person most qualified has failed to appear for deposition, despite multiple notices. Further, Defendant has not since made its person most qualified available for deposition. The Court does not have any evidence before it that would indicate there is substantial justification or other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction. (Code Civ. Proc., § 2025.450, subd. (g).)

        Plaintiffs request monetary sanctions against Defendant and/or Defense Counsel in the amount of $8,000.00. (Motion to Compel Deposition, p. 10:4–6.) According to Plaintiffs’ Counsel, this accounts for 16 hours of work at $500.00 per hour. (Motion to Compel Deposition, Decl. Kosten, ¶ 37.)

        The hourly rate is reasonable, but the number of hours is not. The Court awards five hours of work at the requested hourly rate.

IV.      Conclusion

The Motion to Compel Deposition is GRANTED. Defendant Tabrizyan, LLC shall make its person most qualified available for deposition within 20 days of the issuance of this Order.

        Monetary sanctions are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $2,500.00.