Judge Ralph C. Hofer, Case Number: 22GDCV00048, Date: 2023-12-22 Tentative Ruling

FACTUAL BACKGROUND:

Plaintiffs Armine Harutyunyan and Vadim Harutyunov allege that defendant Alen Bejanyan is the purported owner of property and a residence located on Dublin Drive in Glendale, which plaintiffs have rented from defendant since February of 2019. Plaintiffs allege that on August 1, 2021, plaintiffs and defendant entered into an agreement for plaintiffs’ purchase of the subject property and pre-paid rents, pursuant to which rent for one year was to be paid in advance in the amount of $5,000 per month, with the first month free if paid in cash, and plaintiffs would receive an option to purchase in exchange for a cash payment of $5,000, with the total sale price of the subject property to be $1,650,000.

The agreement was memorialized in an executed form California Residential Purchase Agreement and in an executed Lease Agreement with Option to Purchase.

Plaintiffs allege that they paid defendant $60,000 in cash, consisting of eleven months’ rent at $5,000 per month and $5,000 cash as consideration for plaintiffs’ option to purchase the subject property, receipt of which was acknowledged by landlord in the Lease. The Lease specified that the Lease was for the time period August 1, 2021 to July 31, 2025, and that the time period for plaintiffs to exercise the option to purchase ran from August 1, 2021 until July 31, 2022.

The complaint alleges that on August 5, 2021, defendant served a 60-Day Notice to Quit on plaintiffs, which did not specify any cause for termination, including the statutorily required just cause pursuant to Civil Code section 1946.2 or Glendale Municipal Ordinance section 9.30.031. In December of 2021, defendant filed an unlawful detainer lawsuit against plaintiffs, which did not correctly specify that the tenancy was subject to the subject Glendale Municipal Code and required just cause for termination.

Plaintiffs allege that on January 14, 2022, plaintiffs notified defendant that plaintiffs were exercising their option to purchase the subject property, but defendant has refused to enter escrow and honor the agreement between the parties and is attempting to sell the subject property to another for a higher price. The complaint alleges causes of action for breach of contract, promissory fraud, and quiet title.

Defendant Bejanyan has filed a cross-complaint against plaintiffs as cross-defendants, alleging that in February of 2019 cross-defendants rented the subject house in Glendale for the agreed upon sum of $5,000 per month and entered a written agreement to live in the house for 2 ½ years, until August 2021.

The operative cross-complaint, the Second Amended Cross-Complaint (SACC), alleges that beginning in January of 2021 and then in April of 2021, cross-defendants negotiated with cross-complainant for an option to purchase the subject house. Cross-complainant alleges that he offered the cross-defendants an option to purchase the house for with a purchase price of $1,650,000 and requested a $150,000 earnest money deposit for the property, but that cross-defendants refused to pay the deposit as they did not have the funds available. The SACC alleges that the parties never reached an agreement regarding the purchase of the house.

In August of 2021, cross-complainant filed an unlawful detainer lawsuit against cross-defendants.

Cross-complainant alleges that while in the proceedings for the unlawful detainer lawsuit, cross-complainant received a falsified Lease to Purchase agreement, and that this was the first time cross-complainant had ever seen this document and had never signed it. The SACC alleges that one of the falsified documents was a forged Lease Agreement with Option to Purchase the premises, and that in January of 2022, cross-complainant was informed by Glenoaks Escrow Company that the subject property was officially in escrow. The SACC alleges that Glenoaks Escrow sent cross-complainant documents such as a California Residential Purchase Agreement, and Joint Escrow Instructions, all of which must have been produced through forgery or falsified means, as cross-complainant had never seen nor agreed to the terms of any of the documents.

The file shows that on January 27, 2022, the court heard an ex parte application filed by plaintiffs for, among other relief, an order to deem matters related. The application was granted, the court finding that this case is related to the UD action 21PUD01291, deeming this case the lead case, ordering the cases assigned to Department D, and ordering a stay in the UD case pending resolution of the lead case. The court noted that the “parties may file a stipulation to consolidate cases.” On May 9, 2022, the court at a case management conference indicated that counsel’s joint motion to consolidate the related cases was heard and granted. The minute order also states, “Later, after further consideration, the Court vacates the order consolidating cases 21PDUD01291 AND 22GDCV00048. Cases are ordered unconsolidated.”

On November 18, 2022, the court heard a demurer to the SACC, which was sustained with leave to amend to the first cause of action for fraud and intentional deceit. The demurrer was sustained with ten days leave to amend. Cross-complainant did not file or serve a Third Amended Cross-Complaint within the time permitted, and on December 8, 2022, the court signed and filed an Order dismissing the first cause of action in the SACC with prejudice.

ANALYSIS:

CCP section 2025.450 (a) provides that "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... the party giving the notice may move for an order compelling the deponent’s attendance and testimony..."

In this case, defendant was served with an Amended Notice of Taking Deposition, which is not attached to the moving papers, but submitted with the opposition. [Opposition, Keshishian Decl., Ex. A]. Defendant served a timely objection, which is also not attached to the moving papers, but submitted with the opposition. [Keshishian Decl., Ex. B].

The Objection objects to propounding party’s “unilateral selection of October 26, 2023 as the date of the depositions,” states the witness and counsel are unavailable, and indicates, “Responding Party will meet and confer with Propounding Party for alternative dates for the deposition.” [Ex. B, p. 2:7-10]. The Objection was served by email on October 20, 2022.

The moving papers indicate that the parties met and conferred by email, but does not attach the email chain, which is also submitted with the Opposition. It shows that on Thursday, October 26, 2023, counsel for plaintiffs sent an email, his second in two days requesting a deposition date for defendant, and indicating that “Should you fail or refuse to provide acceptable dates,” a motion to compel would be filed requesting sanctions. [Keshishian Decl., Ex. C]. The email states, “I will wait until Monday before filing the motion.” [Keshishian Decl., Ex. C]. On Monday, October 30, 2023, defendant’s counsel responded, “our client is available to be deposed on the following dates: November 16, 21, 22 and 30. He will require a Russian interpreter and the deposition must be conducted remotely as he is no longer in the country.” [Keshishian Decl., Ex. D].

The opposition indicates that a response to this email was never received. [Keshishian Decl., para. 7].

This motion was filed and served on November 9, 2023, over a week after dates were suggested.

As argued in the opposition, this shows that defendant did not “without having served a valid objection under Section 2025.410,” fail “to appear for examination…”

The objection that the date was one unilaterally set on which defendant and counsel were unavailable appears valid, and defendant was willing to reschedule to a date in the near future at the time.

In any case, defendant in the opposition appears to concede that defendant may be deposed on a mutually agreeable date.

Defendant’s counsel also indicates in the opposition that the parties have actively engaged in discussing mediation to resolve the matter, and plaintiffs have filed a joint stipulation to continue trial and other dates, with plaintiffs during discussions concerning that stipulation indicating wanting to save resources on discovery and depositions pending the outcome of the mediation. There is no declaration evidencing this representation. The court file does show that on December 5, 2023, the court signed and filed a Joint Stipulation to Continue Trial and Related Dates, indicating the parties had selected a mediator and would be seeking to complete mediation within the next 90 to 120 days, and the trial date and all related dates were continued to April 15, 2024. [Joint Stipulation 12/05/2023].

The only objection which defendant attempts to justify in the opposition is the objection that the deposition was set without consulting defendant and argues that it was accordingly reasonable to object on that ground, and to not appear for deposition, and to offer alternative dates.

Under the circumstances, the court finds that defendant has in the opposition conceded the need for a deposition, and to set a firm date for defendant’s deposition. The court will hear from both sides concerning whether this date should be set after the anticipated mediation date.

Sanctions

This posture leaves the issue of sanctions, which are sought by the moving parties.

Under CCP section 2025.450 (g)(1) “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 that party and against the deponent...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.”

Although defendant will be ordered to appear for deposition, the court does not find the objection to the unilateral setting of the deposition to have been unreasonable, and it appears that alternate dates had been offered well before the plaintiffs chose to disregard the offer and incur the expense of making the motion instead. Defendant’s conduct was substantially justified, and the motion was not yet necessary at the time it was filed. Hence, no sanctions are awarded.

The Court notes that defendant in the opposition has indicated willingness to appear and testify at deposition on a mutually available date. Defendant Alen Bejanyan is ordered to appear for deposition and to give testimony via video remote procedure on a mutually convenient date and time no later than March 8, 2024. The Court will hear from both sides concerning whether the date should be scheduled within the next thirty days, or if the parties would prefer a longer window to have the opportunity to first complete mediation.

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.