Judge: Randy Rhodes, Case: 19CHCV00398, Date: 2023-01-19 Tentative Ruling

Case Number: 19CHCV00398    Hearing Date: January 19, 2023    Dept: F51

Dept. F-51

Date: 1/19/23                                                                                        TRIAL DATE: 3/6/23

Case #19CHCV00398

MOTION TO COMPEL DEPOSITION

Motion filed on 12/27/22.

MOVING PARTY: Defendant Tamara Nazaretyan¿ 

RESPONDING PARTY: Plaintiff Aldea Community Association, a California non-profit mutual benefit corporation¿ 

NOTICE: ok¿¿ 

RELIEF REQUESTED: An order compelling the Person Most Qualified for Defendant to appear in person for a deposition and produce certain documents within 10 days of this hearing. Additionally, Defendant requests sanctions against Plaintiff and/or Plaintiff’s counsel in the amount of $5,115.00. 

TENTATIVE RULING: The motion is granted. Plaintiff is ordered to produce its Person Most Qualified to be deposed and to produce the documents specified in the deposition notice, on or before 1/31/23. The Court defers the issue of sanctions at this time.

BACKGROUND:

Plaintiff is the governing homeowners’ association for the condominium project in which Defendant owns a condominium unit. (FAC ¶¶ 1, 7.) This action arises out of Plaintiff’s allegation that Defendant breached the association’s Covenants, Conditions, & Restrictions (“CC&Rs”) by allowing her “openly violent, mentally unstable son,” Garnik Hakobyan (“Garnik”) to reside at her unit. (FAC ¶ 11.) Plaintiff alleges that Garnik “recently engaged in violent, disruptive, frightening, and offensive behavior designed to harass, physically harm, and threaten physical harm to other owners, their families, residents, employees, and guests at the [premises], all of which constitute violations of the Governing Documents, including, but not limited to the CC&Rs and a private nuisance.” (Ibid.)¿¿ 

Specifically, on 4/11/19, Garnik experienced a psychological episode which, according to Plaintiff, caused him to physically assault a fellow resident of the community. (FAC ¶¶ 18, 19.) Following the incident, Plaintiff held a Board meeting with Defendant on 5/8/19, requesting that she prohibit her son from accessing the community. (FAC ¶ 13.) “At the hearing, given the Defendant’s continued refusal to agree to the Board’s requests, the Board reached the following resolutions: (1) authorizing Plaintiff’s law firm to initiate this action against Defendant; (2) deeming Garnik a nuisance and an immediate risk to the health and safety of the Association’s members, residents, employees and guests, in breach of CC&Rs; (3) restricting Garnik from the Association’s common areas; and (4) imposing a fine of one hundred dollars ($100.00) for the violation of the CC&Rs.” (Ibid.)¿ 

On 5/14/19, Plaintiff filed its complaint, alleging against Defendant four causes of action: (1) Breach of Covenants, Conditions, & Restrictions; (2) Injunctive Relief; (3) Declaratory Relief; and (4) Nuisance.¿ 

On 5/20/19, the Court granted Plaintiff a temporary restraining order preventing Garnik from entering the premises. On 6/3/19, the Court granted Plaintiff a preliminary injunction preventing Garnik from using the common areas of the premises, except to enter and exit Defendant’s unit. 

On 7/2/19, Plaintiff filed its first amended complaint (“FAC”). On 8/1/19, Defendant filed her answer.

On 12/27/22, Defendant filed the instant motion to compel the deposition of Plaintiff’s PMQ. On 1/12/23, Plaintiff filed its opposition. On 1/17/23, Defendant filed her reply.

ANALYSIS

1.      Motion to Compel Deposition

A party may, upon proper written notice, obtain discovery by taking the oral deposition of any natural person, organization, partnership, association, or governmental agency. (Code Civ. Proc. §§ 2025.010, 2025.220.) A party deponent can be required to attend a deposition by service of a deposition notice on the party's attorney. (Code Civ. Proc. § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, … without having served a valid objection …, fails to appear for examination, … 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).)

            Here, Defendant noticed the deposition of Plaintiff’s PMQ on 12/5/22. (Ex. A to Pl.’s Opp.)[1] On 12/15/22, Plaintiff served its objections to Defendant’s deposition notice. (Ex. B to Pl.’s Opp.) The parties do not dispute that Defendant is entitled to depose Plaintiff’s PMQ. The parties’ disagreement centers on the adequacy of their respective opponent’s meet and confer efforts in coming to a consensus regarding the date of the deposition.

            Defendant argues that “Plaintiff objected, stated the date was not convenient and claiming it would discuss a mutually agreeable date, then ultimately changed its position and stated it would no longer attend.” (Def.’s Mot. 4:22–23.) Plaintiff argues in opposition that it provided multiple alternative dates for its PMQs to be deposed, given the scheduling challenges presented over the holiday season, and at no time refused to produce the deponents. (Pl.’s Opp., 3:23–25.)

Based on the foregoing, the Court orders the deposition of Plaintiff’s PMQ to be taken on or before 1/31/23.

2.      Sanctions

If the Court grants a motion to compel a deposition, it “shall impose a monetary sanction … 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)(1).)

Here, Defendant requests sanctions against Plaintiff and its counsel in the total amount of $5,115.00, for 11.1 hours of his time at his hourly rate of $450 per hour, spent as follows: (1) three hours preparing the moving papers; (2) an anticipated 2.8 hours reading Plaintiff’s opposition and drafting a reply; (3) an anticipated 1 hour to appear at the hearing; and (4) 2.3 hours drafting Defendant’s related ex parte application. (Decl. of Pierro Babaian, ¶ 12.) The total amount requested also includes the cost of two $60 filing fees for the motion and ex parte application. (Ibid.)

In opposition, Plaintiff requests sanctions against Defendant and her counsel in the total amount of $1,810.00, which includes: (1) 2 hours preparing Plaintiff’s opposition; (2) $60 filing fee for the opposition; and (3) an anticipated 2 hours appearing at this hearing, at counsel’s hourly rate of $350 per hour. (Decl. of Patrick Malone, ¶ 10.)

Based on the dispute between the parties regarding each other’s good faith efforts to meet and confer, the Court finds it improper to issue sanctions at this time, and defers the issue.

CONCLUSION

The motion is granted. Plaintiff is ordered to produce its Person Most Qualified to be deposed and to produce the documents specified in the deposition notice, on or before 1/31/23. The Court defers the issue of sanctions at this time.