Judge Ralph C. Hofer, Case Number: 21GDV01288, Date: 2023-11-17 Tentative Ruling

Plaintiff GPR Properties, LLC alleges that in June of 2014, it leased a storage space it owns in Glendale to defendants Shiraz Rental, Inc. (Shiraz Rental), Goorgen Mirzakhanian, and Soren Shabazian for five years. In 2019, plaintiff and defendants signed a new Lease for another five-year period for the premises. Plaintiff alleges that the individual defendants signed the Lease, and plaintiff believes they signed it on behalf of defendant Shiraz Rental, which also used the premises. The Lease required the payment of monthly rent, and that defendants maintain the premises in good and substantial repair and in clean and sanitary condition.

Plaintiff alleges that in 2020, defendants moved the physical retail location of Shiraz Rental, but contacted plaintiff in June of 2020, stating that they would still need the rental space. However, defendants stopped paying rent, and have failed to cure other breaches after notice from plaintiff. Plaintiff alleges that defendants continued to use the premises until at least November of 2020, and thereafter abandoned the space in altered condition, in disrepair, and not in compliance with the terms of the Lease.

Defendant Soren Shahbazian seeks a protective order not allowing defendant’s deposition, arguing that due to his failing health and deteriorating heart condition, his treating physician recommends that the deposition would cause unnecessary stress to defendant. Defendant also argues that the moving defendant had no dealings with plaintiff, but defendant Goorgen Mirzakhanian is the individual which had all dealings with plaintiff and will testify in court.

“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.”

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

The burden of showing good cause is ordinarily on the party seeking the protective order. Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961, 2nd Dist.) 195 Cal.App. 2d 861, 866-867. The granting of a protective order is within the discretion of the trial court. Id. When the record shows facts on which the trial court exercised its discretion, this exercise will not be disturbed on appeal. Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578.

Defendant argues that this is a simple breach of lease case regarding a storage unit, and that defendants stopped paying rent for the storage unit since plaintiff failed to provide access to the storage unit. Defendant indicates that the storage unit is in the back of a Pet Hotel building owned by plaintiff, to which the defendants had access by a large opening next door to the Pet Hotel, which was walled up in 2021. Defendant argues that he had no communications with plaintiff regarding the transaction, but that Goorgen Mirzakhanian had all dealings with plaintiff, and will also be the PMQ for defendant Shiraz Rental. Defendant indicates that defendants will not call him as a witness on the stand at trial.

The moving papers do not include a declaration of moving defendant Soren Shabazian, or any witness testifying to these purported facts concerning the deponent’s lack of involvement in the transaction, lack of communications with plaintiff, or the circumstances surrounding the purported lack of access to the storage unit purportedly prompting defendants’ failure to pay rent. There is no declaration confirming that defendants will not call moving defendant as a trial witness. This lack of a showing on these issues does not support the argument that the witness has no relevant information such that there would be a disproportionate burden to produce him for deposition.

Plaintiff in opposition argues that the very issue of access is an issue on which defendant’s testimony is needed and submits discovery responses from this defendant in which he identifies as notices between the parties, “verbal notices by defendants during the Summer and Fall of 2021,” and lists himself as a witness. [Levine Decl., para. 2, Ex. A, Responses to Second Set of Special Interrogatories, Response to Interrogatory No. 17]. The responses to other interrogatories directly by this defendant report details concerning access, such as “Locked gate from the inside, dogs not in fenced area, air conditioner unit making impossible for truck to use driveway,” “Defendant’s truck and certain dollies due to the blocked driveway,” and “The access from the alley and other parking lot was blocked with cement wall,” suggesting defendant’s personal knowledge of the facts supporting defendants’ primary defense. [Levine Decl., para. 2, Ex. A, Responses to Second Set of Special Interrogatories, Response to Interrogatories Nos. 20, 22, 23, 29, 30]. Plaintiff also submits the Witness List served by defendants in this matter on February 16, 2023, listing moving defendant “Soren Shabazian” as a witness to be called at trial, as “Type of Witness,” “Percipient.” [Levine Decl. para. 6, Ex. 6, p. 1]. The file shows that the Witness List was also filed with the court on February 16, 2023. It is not clear what has changed since this Witness List was filed with the court.

As noted above, in the absence of any declaration or other evidence supporting this argument submitted by defendant, this is the only information properly before the court on the issue, which contradicts defendant’s main argument, instead showing this defendant’s knowledge and position as a percipient witness to the issues in this matter.

Defendant also argues that defendant’s health is such that he is entitled to a protective order. Again, there is no declaration of defendant describing his health condition, or why he believes that undergoing a deposition concerning what appears to be a straightforward breach of a business arrangement would involve undue stress.

Defendant relies on the declaration of counsel, who refers to correspondence counsel directed to plaintiff’s counsel, attaching a physician letter counsel indicates justifies objection to the deposition. There is no statement in the declaration authenticating the physician letter, and counsel also does not describe defendant’s condition, why the deposition is expected to be stressful, defendant’s knowledge of or involvement with the transaction, or lack thereof, or counsel’s intention concerning who will be called as witnesses in this matter. [See Macias Decl., paras. 1-6]. The purported physician letter, attached to meet and confer correspondence and objections to the deposition notice, is a notation on a prescription pad, dated August 23, 2023, which includes some words which are difficult to read, and states:

This showing is also not ideal, as it is not clear what is the severity of the condition, when it occurred, what stresses should be avoided, and what the consequences would be to defendant’s health. It appears that suffering from heart disease, without more detail, could be manageable. It is not clear that there has been a surgery, when it occurred, or what the expectation of recovery is.

As argued in the opposition, this letter recommending that defendant avoid stressful conditions is not a recommendation that defendant not sit for deposition or an opinion that sitting for deposition will cause defendant any medical complications. Plaintiff also argues that there is no reason why plaintiff should not be able to take a remote deposition of defendant with defendant comfortable in his own home, and that if there are any issues, the deposition can be suspended and resumed after a short break or on another day.

Based on the evidence properly before the court, the court finds that defendant has failed to meet its burden to show good cause for issuance of a protective order. The motion accordingly is denied. The court will discuss with counsel the suggested limitations on the deposition, such as conducting it remotely from defendant’s home, and providing for reasonable breaks, and time limitations for each day, if necessary.