Judge Ralph C. Hofer, Case Number: 20GDCV00763, Date: 2024-02-16 Tentative Ruling

Plaintiff New Look Skin Center, Inc (New Look spa) and its manager, plaintiff Albert Markarian, allege that New Look spa provides spa-quality skin treatments, including laser hair removal, tattoo removal, acne and acne scar treatment, wrinkle reduction, cellulite treatment, chemical peels, and other treatments. Plaintiffs allege that in August of 2020, defendants David Yerushalmi and Yerushalmi Law Firm, APC contacted New Look spa by phone to inform it defendants were representing a patient of New Look spa, and demanded that New Look spa provide its commercial liability policy information. Plaintiffs repeatedly and unequivocally advised defendants that New Look spa was represented by counsel. Plaintiffs later used a false name, “Alan,” to contact New Look spa by telephone to obtain access to management to obtain information including New Look spa’s confidential liability insurance information, and persisted in these efforts, ultimately contacting New Look spa’s counsel to obtain the insurance information.

The complaint alleges that thereafter plaintiffs continued their surreptitious efforts to obtain the insurance information by falsely impersonating New Look spa in a call with the insurance company directly, during which defendant Yerushalmi false identified himself as Albert Markarian from New Look Skin Center, indicated that the company’s phone and internet systems were down, and asked the insurance company to immediately fax a copy of the most recent insurance declaration page and other information for a meeting with New Look spa’s accountant the next day.

Plaintiffs allege that the information and documents defendants requested while falsely pretending to be plaintiffs, were not available to the public and contained confidential and business documents of plaintiffs, and that defendants were successful in obtaining New Look spa’s confidential information, as a result of which plaintiffs have been damaged.

Defendants seek to compel the deposition of plaintiff Albert Markarian, which defendants have noticed twice, with no written objection served. [Vivoli Decl. ¶¶ 3, 7-9, Exs. B, C]. The deposition was most recently scheduled for December 21, 2023, on a date offered by counsel for plaintiff. [Vivoli Decl. ¶¶ 7-9, Ex. C]. Defendants’ counsel drove from San Diego to Los Angeles on December 20, 2023, and the following morning appeared at the deposition location at the time noticed, along with a videographer and court reporter, but plaintiff did not appear. [Vivoli Decl. ¶¶ 10-13]. Defendants’ counsel contacted plaintiffs’counsel, who claimed that they knew nothing of the scheduled deposition that day, but then later acknowledged responsibility for having failed to attend the deposition. [Vivoli Decl. ¶¶ 11-13, Ex. D]. Since December, counsel for defendants has continued to ask for available dates for plaintiff’s deposition, and ultimately plaintiffs’ counsel has refused to produce plaintiff for deposition prior to April of 2024. [Vivoli Decl. ¶¶ 15, 16, Ex. F].

“(a) 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.”

The moving papers sufficiently establish here that plaintiff, a party to the action, did not serve an objection, and failed to appear for his examination which had been noticed on a date offered by plaintiff’s counsel as available. Defendants are accordingly entitled to an order compelling plaintiff’s attendance and testimony.

Plaintiff Markarian argues in the opposition that the motion is now moot, as since the filing of the motion, plaintiff appeared for his deposition on February 29, 2024, and also produced records in his possession, custody and control that were responsive to the requests for production set forth in the deposition notice.

The motion appears to now be moot, and no order appears to be necessary. If defendants are not satisfied with the testimony or documents provided at the February deposition, a new motion must be filed following an appropriate meet and confer, and accompanied by an appropriate separate statement.

“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.”

CCP § 2023.010 (d) provides that misuse of the discovery process includes, “Failing to respond or to submit to an authorized method of discovery.” CCP § 2023.030(a) authorizes the imposition of monetary sanctions against a party and its attorney for misuse of the discovery process.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Here, it is clear from the moving papers that had the motion not been rendered moot, defendants were entitled to an order that the deposition proceed under CCP § 2025.450 subdivision (a), and the statute indicates that the court “shall” impose a monetary sanction.

Plaintiff argues that this motion was not filed in good faith, but was filed after defendant’s counsel had expressly and in writing agreed to schedule and attend an Informal Discovery Conference to resolve the scheduling issues the parties faced.

Plaintiff’s counsel submits a declaration indicating that plaintiff’s counsel inadvertently calendared the December deposition date for December 28, rather than December 21, 2023, and when counsel became aware of the error apologized to defendants’ counsel for the oversight and mis-calendaring. [Shamtob Decl. ¶¶ 3, 4]. There was then an agreement to conduct the deposition on the December 28 date, which was ultimately postponed due to scheduling issues with defendants’court reporter. [Shamtob Decl. ¶ 5]. The declaration attaches an e-mail from defendants’ counsel agreeing to that December 28 date, which also states, “I will also ask for the cancellation charges associated with last week’s no-show and get you an itemized invoice for the fees and costs incurred by my client due to the non-appearance.” [Ex. 1].

Plaintiff’s counsel also states that the parties agreed to hold the deposition on February 29, 2024, and an Amended Notice was served. [Shamtob Decl. ¶ 6, Ex. 2]. The Amended Notice shows it was served on February 20, 2024, after this motion was filed on February 2, 2024. [Ex. 2].

Plaintiff’s counsel’s declaration concedes that the non-appearance was due to plaintiff’s counsel’s mis-calendaring, and the declaration accordingly supports the imposition of sanctions on plaintiff for the expense of the non-appearance on December 21, 2023.

That leaves the issue of the monetary sanctions sought by defendants for the preparation of and pursuit of this motion. Plaintiff has submitted a second declaration of the partner working with Shamtob, Mr. Kerendian, who states that on December 28 he agreed to confer with his client and get dates for January 2024, and on January 24, 2024, proposed April 8, 2024 for the deposition. [Kerendian Decl. ¶¶ 3, 4]. Counsel indicates he offered this later date because at the end of January 2024, his office’s landlord refused to extent the office lease, putting counsel in a position of having to quickly search of for a new office space after 25 years at the current location. [Kerendian Decl. ¶ 4]. Counsel then states that the after some back and forth with defendants’ counsel threatening to file a motion to compel, it was proposed that the parties attend an informal discovery conference to seek assistance from the court in resolving the scheduling dispute, and counsel for defendants agreed. [Kerendian Decl. ¶¶ 5, 6].

The declaration attaches an email exchange on January 24, 2024, in which Kerendian states, “I wonder if the judge assigned to the case conducts IDC. If so, I recommend we go before the judge on an IDC.” In response the same date, counsel for defendants, Vivoli, wrote, “I completely agree—let’s get into an IDC. I’ve seen this judge resolve this kind of conduct before in that type of setting. I’ll file an ex parte application for an IDC on this issue.” [Ex. B].

It appears that then, the following week, on February 2, 2024, defendants’ counsel wrote to plaintiff’s counsel, “Please confirm you’re taking your motions to compel off-calendar given they’ve been rendered moot. If not, we’ll oppose today.” [Kerendian Decl. ¶ 9, Ex. B]. Evidently the motions were not taken off calendar, and counsel for defendants filed this motion to compel Markarian’s deposition a few hours later that date. [Kerendian Decl. ¶10]. Counsel for plaintiff argues that he was completely at a loss as to why defendants’ counsel elected to file a motion to compel despite stating on January 24 that the parties should pursue an IDC, and that this motion was improper and unnecessary, but was filed in retaliation for the four pending motions to compel being pursued by plaintiffs. [Kerendian Decl. ¶ 11].

The court is concerned that the motion was filed while plaintiff’s counsel was under the not unreasonable impression that the parties would continue their efforts to resolve the scheduling issue informally. However, it appears that at the time the motion was filed, counsel for plaintiff also had not yet moved from the position that the deposition should not occur until April, and evidently did not reconsider that position until the motion was filed, and to which the February date was agreed. [See Ex. A, stating the proposed April date “is completely unacceptable. Give me dates in the first two weeks of February or I’ll notice it within that window and enforce it accordingly via court order as needed.”] It also appears that counsel for defendants was not unreasonable in pursuing the motion in order to preserve the right to recover the expenses for the non-appearance at the December deposition.

Under the circumstances, including the representation by counsel for defendants that a motion would be pursued only after a February date was noticed, the court will award the reasonable expenses incurred due to the non-appearance in favor of defendants, but will not award the expense of bringing and pursuing this motion while the parties were continuing to pursue informal resolution of the schedule, as it would appear unjust under the circumstances to shift that expense to plaintiff.

Plaintiff in the opposition argues that sanctions should be imposed on defendants and defendants counsel, as the motion was brought without substantial justification and despite representations that an ex parte application would be made to resolve the issue via IDC, and without warning, in retaliation for plaintiff’s motions to compel.

This provision does not support the imposition of sanctions against the party who noticed the deposition and filed a motion but provides for sanctions only to the successful moving party. No other provision is cited in the opposition, and no sanctions will be awarded against defendant moving party in this circumstance.

The opposition does not challenge specifically any aspect of these fees and costs as unreasonable. The court is concerned, however, that the travel time is for travel from San Diego to Los Angeles, when ordinarily the costs arising from defendant’s choice to retain distant counsel is not properly shifted to plaintiff. However, the court awards attorney travel time in this instance since plaintiff’s attorneys were aware of the travel distance and did not offer to have the deposition conducted remotely or to travel to plaintiff’s counsel office in San Diego to conduct the deposition.

Motion to Compel Deposition of Plaintiff Albert Markarian and Production of Documents Demanded at Deposition is MOOT in light of the representation in the opposition that plaintiff was deposed on February 29, 2024, and has produced documents responsive to the deposition notice prior to the hearing on this motion. [Shamtob Decl. ¶¶ 8, 10].

Monetary sanctions requested by moving party are GRANTED in part and DENIED in part. Monetary sanctions will be awarded in favor of moving party for the reasonable expenses incurred due plaintiff’s non-appearance at the deposition noticed for December 21, 2023. Monetary sanctions sought for the expense of preparing and pursuing the instant motion to compel are DENIED.

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred in connection with the non-appearance is $2,975.00 (5.0 hours @ $595/hour) [20 hours requested; 5 hours requested for travel to and attendance at deposition] plus costs of $525 videographer cost and $1,074 court reporter cost. [Amount Requested $15,939; amount supported for non-appearance only $4,574], which sum of $4,574.00 is to be awarded in favor of defendants David Yerushalmi and Yerushalmi Law Firm APC, and against plaintiff Albert Markarian, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2025.450(g), 2023.010(d), 2023.030(a) and CRC Rule 3.1348(a).

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