Judge: Michelle Williams Court, Case: 21STCV23965, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV23965    Hearing Date: August 4, 2022    Dept: 74

21STCV23965           HEIDARI LAW GROUP vs MESRIANI LAW GROUP

Defendant’s Motion to Compel the Deposition of Sam Ryan Heidari; Request for Sanctions Against Plaintiff and/or Plaintiff’s Counsel of Record

TENTATIVE RULING:      The motion is GRANTED.  Sam Ryan Heidari is ordered to sit for his deposition within 30 days. Pursuant to Code of Civil Procedure section 2025.450(g)(1), the Court imposes sanctions against Plaintiff and its counsel of record in the amount of $110.00, payable to Defendant within 30 days.

Background

On June 29, 2021, Plaintiff Heidari Law Group, P.C. filed this action against Defendant Mesriani Law Group. The complaint alleged five causes of action: (1) conversion, (2) intentional interference with contractual relations, (3) intentional misrepresentation, (4) negligent misrepresentation, and (5) breach of fiduciary duty. Plaintiff alleges that the Plaintiff represented Ninja Najafi in relation to a car collision, which included a fee agreement. Plaintiff alleges the insurance company accepted their demand prior to Najafi obtaining new counsel. Plaintiff sent Defendant a Notice of Attorney’s Lien in the amount of $7,809.38. Plaintiff alleges Defendant improperly represented to the insurance company that the fee amount was twenty-five percent of the settlement rather than thirty-three and one third percent.

Motion

On July 11, 2022, Defendant filed the instant motion seeking to compel the deposition of Sam Ryan Heidari pursuant to Code of Civil Procedure section 2025.450 based upon his failure to appear or proceed with several duly noticed depositions.

Opposition

In opposition, Plaintiff contends Defendant filed the motion prematurely, failed to meet and confer or inquire about the anticipated non-appearance at the July 22, 2022 deposition, and Plaintiff made a good faith objection to the notice.

Reply

In reply, Defendant argues the motion is not premature as it had noticed the deposition on several prior occasions, Plaintiff clearly indicated Heidari would not appear at any of them, and would not provide dates for his deposition.

Motion to Compel Deposition

Standard

Pursuant to Code of Civil Procedure section 2025.450(a), “[i]f, 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.”

The motion must be accompanied by a meet and confer declaration and “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.” (Code Civ. Proc. § 2025.450(b).) “[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, [the motion must be accompanied] by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.”  (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)  

Discovery at Issue and Meet and Confer Efforts

On August 16, 2021, Defendant served a notice of deposition upon Sam Ryan Heidari with the deposition set for September 30, 2021. (Imani Decl. Ex. B.) Plaintiff never served a formal objection to this notice. (Imani Decl. ¶ 4.) Plaintiff’s counsel and employee Giorgio Cassandra sent an email on August 17, 2021 indicating the September 30, 2021 date did not work for the deposition. (Id. ¶ 5, Ex. C.) On August 27, 2021, Plaintiff indicated Heidari would be available for deposition on December 3, 2021, December 8, 2021, or December 14, 2021. (Id. ¶ 13, Ex. C.) Defendant requested Plaintiff be available on December 3, 2021. (Id. ¶ 14, Ex. C.)

Defendant served an amended notice of deposition upon Sam Heidari on September 9, 2021 with the deposition set for December 3, 2021. (Id. ¶ 15, Ex. D.) Plaintiff served an objection to the notice on November 23, 2021, which merely stated Heidari was unavailable on that date, despite Plaintiff’s prior representation that he would be available.  (Id. ¶ 16, Ex. E.) Defendant sent meet and confer letters on November 24, 2021 and December 2, 2021 seeking deposition dates. (Id. ¶¶ 17-19, Ex. F-G.) Plaintiff suggested Defendant notice a Person Most Qualified deposition, (Id. ¶20, Ex. H), but did not provide availability for the deposition. (Id. ¶¶ 21-28.)

Having heard no response to several requests for Plaintiff’s PMK or Heidari’s s deposition availability, Defendant served another notice of deposition upon Sam Heidari on June 30, 2022 with the deposition set for July 22, 2022. (Id. ¶ 29, Ex. M.) On July 6, 2022, Heidari once again served an objection solely based upon his alleged unavailability. (Id. ¶ 30, Ex. N.) Defendant sent an email on July 6, 2022 seeking Heidari’s availability with a response deadline of the following business day. (Id. ¶ 31, Ex. O.) Heidari did not respond and Defendant filed the instant motion on July 11, 2022. (Id. ¶ 32.)

Heidari Must Appear for His Deposition

Pursuant to Code of Civil Procedure section 2025.280(a), “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

Defendant served multiple deposition notices upon Sam Ryan Heidari, an attorney employed by Plaintiff. Heidari failed to appear for each deposition without having served a valid objection valid objection under Section 2025.410. Plaintiff contends it served a valid and timely objection. (Opp. at 5:1:26.) However, as argued by Defendant in reply, Plaintiff’s claimed unavailability is not a valid objection under the statute.

In opposition, Plaintiff solely focuses upon the most recent notice of deposition, arguing the noticed deposition date, July 22, 2022, had not passed when the motion was filed, (Opp. at 4:13-21), and Defendant failed to adequately meet and confer. (Opp. at 6:1-7:14.) Plaintiff does not address the two prior deposition notices addressed in Defendant’s motion and Defendant’s numerous attempts to secure a deposition date, which Plaintiff failed to provide. The instant motion was brought due to Plaintiff’s non-responsiveness and Plaintiff’s opposition is unpersuasive. The requirements of Code of Civil Procedure section 2025.450 have been met and the motion is proper.

The motion to compel the deposition of Sam Ryan Heidari is GRANTED. Heidari is ordered to sit for his deposition within 30 days.

Sanctions

Pursuant to Code of Civil Procedure section 2025.450(g)(1), “[i]f 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.”

Defendant requests sanctions against Plaintiff and/or its counsel of record in the amount of “$4,455.00 (7 hours of time drafting this motion and moving papers including preparation of exhibits at $395.00 an hour, 4 hours anticipated time for Plaintiff’s Reply brief and appearance for hearing on this motion, filing fee of $60.00, attorney service fee of $50.00).” (Mot. at 11:13-17, Imani Decl. ¶ 33.)

However, Defendant and its counsel cannot recover attorneys’ fees claimed by an attorney representing his own law firm. (See e.g. Musaelian v. Adams (2009) 45 Cal.4th 512, 520; Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 385; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180.) Defendant’s recent substitution of attorney to file the reply does not provide a basis for the sanctions claimed in the initial motion. Accordingly, the Court imposes sanctions against Plaintiff and its counsel of record in the amount of $110.00 representing the filing and service fees incurred for the motion.