Judge Upinder S. Kalra, Case Number: 20STCV29458, Date: 2023-08-10 Tentative Ruling

Judge: Upinder S. Kalra, Case: 20STCV29458, Date: 2023-08-10 Tentative Ruling

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Case Number: 20STCV29458 Hearing Date: August 10, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: August 10, 2023

CASE NAME: Steven Roth v. Richard M Behfarin, et al.

CASE NO.: 20STCV29458

MOTION TO COMPEL COMPLIANCE WITH PLAINTIFF’S DEPOSITION NOTICE AND REQUEST FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Plaintiff Steven Roth

RESPONDING PARTY(S): Defendant Richard M Behfarian

REQUESTED RELIEF:

1. An order compelling compliance with Plaintiff’s Deposition notice and Request for Production of Documents.

TENTATIVE RULING:

1. Motion to Compel Compliance with Plaintiff’s Deposition Notice and Request for Production of Documents is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 5, 2020, Plaintiff Steven Roth (“Plaintiff”) filed the Complaint against Defendants Reichard M. Behfarin, Robert Mobasseri (“Defendants”) alleging for the following causes of action: (1) Breach of Contract – Contingency Agreement, (2) Reformation – Contingency Agreement, (3) Declaratory Relief – Contingency Agreement, (4) Fraud/False Promise – Contingency Agreement and Mobasseri Agreement, (5) Injunctive Relief – Contingency Agreement, (6) Reformation – Mobasseri Agreement, (7) Intentional Interference with Contractual Relations – Adhami Contract, (8) Intentional Interference with Prospective Economic Advantage – Silva Contract, (9) Defamation; and (10) Unfair Business Practices. The complaint alleged the breach of two contracts governing Roth’s work as a consultant on a class action lawsuit, in which Behfarin was the class representative and Mobasseri a referring attorney, as well as interference with Roth’s work consulting on two other class action lawsuits.

Plaintiff filed a First Amended Complaint on December 11, 2020.

On January 13, 2021, Defendant Mobasseri filed an Answer.

On January 14, 2021, Defendant Behfarin filed an Answer.

On November 8, 2021, Defendant Mobasseri filed a Motion to Compel Arbitration, which was DENIED.

On January 18, 2022, Defendant Mobasseri filed a Notice of Appeal.

On June 1, 2022, Plaintiff filed a Request for Dismissal, as to Defendant Mobasseri, and the 4^th and 7^th causes of action.

On June 8, 2022, Defendant filed an Abandonment of Appeal.

On October 12, 2022, Plaintiff filed a Motion for Leave to file Second Amended Complaint.

On July 17, 2023, Plaintiff filed a Motion to Compel Compliance with Plaintiff’s Deposition Notice and Request for Production of Documents. Defendant’s Opposition was filed on July 26, 2023. Plaintiff’s Reply was filed on August 3, 2023.

LEGAL STANDARD:

“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 under Section 2025.410, fails to appear for examination. . . the party giving the notice may move for an order compelling the deponent's attendance and testimony. . . . (Code Civ. Proc., § 2025.450(a).)

A party’s motion to compel the deposition of another party must comply with the requirements of Code of Civil Procedure Section 2025.450(b). Specifically,

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information,¿or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information,¿or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(Code Civ. Proc., § 2025.450(b)(1)-(2).)

“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.” (Code Civ. Proc., § 2025.450(g).)

ANALYSIS:

Plaintiff moves to compel Defendant Behfarin to produce documents at his deposition that were responsive to the requests.

Background:

Plaintiff served Defendant with RPDs on October 7, 2020. On August 19, 2021, the Court granted Plaintiff’s motions to compel. Defendant eventually produced the requested documents on January 14, 2022. On January 31, 2022, Plaintiff then served Defendant with an Amended Notice of Deposition with a Request to Produce Documents. No objections were served, and Defendant’s deposition was held on February 28, 2023, but Defendant did not produce any of the requested documents. Later, at the Informal Discovery Conference on April 17, 2023, the parties were unable to resolve the issues regarding the testimony and documents concerning Strategic Edge Consulting.

Plaintiff argues that Defendant should be compelled to produce the documents and provide further testimony as to Strategic Edge Consulting and the arrangement with Mobasseri as to fee sharing. These documents are responsive to RPD No. 1; Defendant’s attorney previously indicated that the documents would be produced but has failed to do so. (Motion 6: 2-4.)

Defendant first argues that the documents are not responsive, as the request identifies Mobasseri, but not the defined Mobasseri and lacks definition and substance. Defendant also argues that Plaintiff already has the requested documents: the retainer agreement, the settlement document, and Exhibit C to the complaint. (Opp. 3: 7-15.) Defendant next argues that the documents are confidential, and Plaintiff has not established that these documents from Strategic Edge Consulting are related to the Behfarin v. Pruco matter. (Opp. 4: 7-10.)

The Court finds that good cause exists to compel Defendant to produce the requested documents and to provide further testimony. The testimony provided indicates that Defendant had an agreement with Mobasseri regarding fee sharing. The documents from Strategic Edge Consulting, which was created for the “purpose of sharing attorneys’ referral fees in class action lawsuits,” are relevant. (Balice Decl., ¶ 7, Ex. C, Transcript p. 30:18-21; 31:7-18; 39:24- 40:7.). Additionally, Defendant’s argument concerning the “defined” Mobasseri is unavailing and disingenuous, as the request is plainly asking for documents related to Mobasseri’s fees, and the definition of Mobasseri includes Defendant Robert Mobasseri. Lastly, Defendant’s counsel indicated that he requested documents from his client and would send the documents when he received them. Therefore, Defendant is required to produce the requested documents and provide further testimony.

Motion to Compel Compliance with Plaintiff’s Deposition Notice and Request for Production of Documents is GRANTED.

Sanctions:

Plaintiff requests $4,950 in monetary sanctions against Defendant personllay. This is based on 3.9 hours meeting and conferring, an additional 3 hours preparing the current motion, and an anticipated 3 hours preparing the reply. The hourly rate is $500.

Plaintiff has provided good cause as to why these documents are required and Defendant has failed to provide a viable reason for not producing said documents. Accordingly, the Court will impose sanctions and, moreover, finds that the requested $4,950 is reasonable.

Thus, the Request for Sanction is GRANTED.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Compel Compliance with Plaintiff’s Deposition Notice and Request for Production of Documents and sanctions in the amount of $4,950 against Defendant personally is GRANTED. Sanctions are payable within 30 days of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: August 10, 2023 __________________________________ Upinder S. Kalra

Judge of the Superior Court