Judge: Randy Rhodes, Case: 19CHCV00398, Date: 2023-01-26 Tentative Ruling
Case Number: 19CHCV00398 Hearing Date: January 26, 2023 Dept: F51
Dept. F-51
Date: 1/26/23 TRIAL DATE: 3/6/23
Case #19CHCV00398
MOTIONS
TO COMPEL DEPOSITION
Motions filed on 1/5/23.
MOVING PARTY: Plaintiff Aldea Community Association,
a California non-profit mutual benefit corporation (“Plaintiff”)
RESPONDING PARTY: Defendant Tamara Nazaretyan
(“Defendant”)
NOTICE: OK
RELIEF REQUESTED: Orders compelling: (1)
Defendant/Defendant’s counsel to accept service of the deposition
subpoeanas/notices to Anahit Nazaretyan and Garnik Hakobyan; (2) Defendant/Defendant’s counsel to produce the
deponents to appear for their depositions; and (3) sanctions against Defendant and/or
Defendant’s counsel in the total amount of $5,723.30.
TENTATIVE RULING: The
motions are granted. Defendant is ordered to accept service of the deposition
subpoenas/notices on behalf of Anahit Nazaretyan and Garnik Hakobyan, and
produce the witnesses to be deposed within 20 days of this hearing. The Court
defers the issue of sanctions.
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 12/14/22, Plaintiff served
deposition notices and deposition subpoenas for the personal appearances of
Anahit Nazaretyan (Defendant’s mother) and Garnik Hakobyan (Defendant’s son) on
Defendant’s counsel. Plaintiff was unable to successfully serve either deponent
via personal service.
On 1/5/23, following meet and
confer efforts between the parties, Plaintiff filed the instant motions to
compel the depositions of the witnesses. On 1/17/23, Defendant filed her
opposition to the motions. On 1/20/23, Plaintiff filed its 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).) However, service on a nonparty deponent must be
effected by personal delivery of a copy of the subpoena to the deponent. (Code Civ.
Proc. § 2020.220, subd. (b)(1).) Personal service is required to compel a
resident witness to appear for his or her deposition. (Code Civ. Proc. §
2020.220, subd. (c).)
“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, Plaintiff has been unsuccessful
in personally serving the proposed deponents with the deposition notices and
subpoenas despite numerous attempts to do so. (Decls. of Patrick Malone, ¶ 3.)
As such, Plaintiff brings the instant motion to compel because the witnesses
allegedly reside with Defendant, and Defendants’ counsel (1) allegedly
represents both witnesses in a separate Federal action arising from the 4/11/19
incident; (2) has previously submitted a Motion to Quash on Anahit
Nazaretyan’s behalf; (3) has objected to the deposition subpoena/notice of
Garnik Hakobyan; and (4) now refuses to accept service on behalf of the
witnesses.
The parties dispute the good-faith nature of their
respective opponent’s counsel’s meet and confer efforts, specifically as to
which party’s attorney first suggested that nonparty witnesses could only be
summoned to be deposed via formal subpoena rather than notice through counsel.
Defendant argues that here, “the mere fact the non-party deponents are parties
to another action or that they have a familial relationship does not provide
the legal support Plaintiff advances.” (Def.’s Opp. 4:18–20.) Plaintiff argues
in reply that counsel may accept service on behalf of nonparty deponent upon a
showing of good cause, citing to a Federal case. (Pl.’s Reply, 2:8–15, quoting Sali
v. Corona Reg'l Med. Ctr. (2018) 884 F.3d 1218.) The Court notes that
Defendant does not object to the taking of either deposition on substantive
grounds.
While there is little controlling analogous
authority on the issue of whether Defendant’s counsel may be compelled to accept
service of a deposition subpoena on behalf of the nonparty witnesses, personal
service functions to give a witness actual knowledge that he or she is to
appear at a specified date and location to be deposed on the specified subject
matter. Here, Plaintiff has demonstrated that Defendant and her counsel have
connections with Anahit Nazaretyan and Garnik Hakobyan sufficient to
successfully relay to them the information contained in the deposition
subpoenas and notices, particularly where Plaintiff’s previous efforts to
effectuate personal service have been unsuccessful.
Based on the foregoing, the Court grants Plaintiff’s
motions to compel the deposition of Anahit Nazaretyan and Garnik Hakobyan.
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).) Additionally, “the court may impose a monetary sanction ordering that
one engaging in the misuse of the discovery process, or any attorney advising
that conduct, or both pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030,
subd. (a).)
Here, Plaintiff requests sanctions
against Defendant and/or her counsel in the total amount of $5,723.30, or $2,861.65 per motion, which
includes: (1) 3 hours preparing each motion to compel; (2) a $61.65 fee per
filing; and (3) an anticipated 4 hours appearing at both this hearing and the
hearing on Plaintiff’s ex parte motion to shorten the hearing time, at
counsel’s hourly rate of $400 per hour. (Decls. of Patrick Malone, ¶ 10.)
In opposition, Defendant requests
sanctions against Plaintiff and its counsel in the total amount of $2,320.00,
for 5.8 hours of her attorney’s time at his hourly rate of $400 per hour.
(Decl. of Pierro Babaian, ¶¶ 4–5.)
While the instant motions are granted, the Court
defers the issue of sanctions against Defendant/Defendant’s counsel at this
time as the Court finds that there is a good faith dispute between the parties
requiring Court involvement.
CONCLUSION
The motions are granted. Defendant is ordered to
accept service of the deposition subpoenas/notices on behalf of Anahit
Nazaretyan and Garnik Hakobyan, and produce the witnesses to be deposed within
20 days of this hearing. The Court defers the issue of sanctions.