Judge Yolanda Orozco, Case 19STCV43861 2022-08-19 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV43861, Date: 2022-08-19 Tentative Ruling

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Case Number: 19STCV43861 Hearing Date: August 19, 2022 Dept: 31

MOTION TO COMPEL TESTIMONY AT DEPOSITION IS CONTINUED

Background

On December 5, 2019, Plaintiffs Fred Stepen, Debra, Nussbaum, Chaim Stepen, Shimon, and Gloria Stepen commenced their action against Defendants Zion Vanounou (“Zion”), Moshe Vanounou, 2202 East Anderson Street, LLC and Does 1 through 50. The Complaint asserts causes of action for:

1) Breach of Written Contract;

2) Breach of Oral Contract;

3) Fraud;

4) Negligent Misrepresentation;

5) Constructive Fraud;

6) Breach of Covenant of Good Faith and Fair Dealing;

7) Declaratory Relief;

8) Breach of Fiduciary Duty;

9) Accounting;

10) Transfer of Ownership of Company Assets;

11) Compel Payment of Paid Distributions;

12) Unjust Enrichment;

13) Partition;

14) Breach of Duty of Loyalty; and

15) Conversion.

On May 5, 2022, Plaintiffs requested an IDC to be conducted on July 15, 2022. On July 15, 2022, the Court did not conduct an IDC but instead based on Plaintiffs’ Discovery Conference Statement, took the IDC off calendar, and advised Plaintiffs to file a Motion to Compel. (See Min. Or. 07/15/22.)

On July 27, 2022, Plaintiff Fred Stepen filed a Motion to Compel Testimony at Deposition of Defendant Moseh Vanounou.

Defendant Vanounou filed Opposition papers on August 8, 2022.

Legal Standard

California Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer. . . .” “A motion to compel further is the appropriate motion when the responding party provides a response to the propounded discovery. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788.)

A motion to compel a deponent to answer must be “made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480(b).) “If the court determines that the answer production sought is subject to discovery, it shall order that the answer be given, or the production be made on the resumption of the deposition.” (Id., § 2025.480(i).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2025.480(j).)

Meet and Confer

Plaintiffs’ counsel, Moses S. Bardavid, declares that he attempted to resolve discovery issues via emails and calls with Moshe Vanounou’s counsel. (Bardavid ¶ 6.) According to Plaintiffs’ counsel, Vanounou’s counsel stated that because he was not involved in the criminal matter, he could do nothing about Vanounou’s asserting his 5th Amendment right to not answer certain questions at the deposition. (Id.) The Court is satisfied that the meet and confer requirement is met.

Discussion

This suit pertains to ownership interest in a property (“Santa Fe Property”), located in South Santa Fe Avenue in Vernon, CA. Plaintiffs move for an Order compelling Defendant Moshe Vanounou (“Moshe”) to provide testimony at deposition relating to the Santa Fe Property and sanctions in the amount of $7,260.00.

On April 14, 2022, Plaintiffs conducted the deposition of Defendant Moshe Vanounou, who refused to answer questions pertaining to the ownership of the subject property by asserting his 5th Amendment right against self-incrimination and attorney-client privilege. Defendant Vanounou’s refusal to answer questions stemmed from a contempt motion brought in a divorce proceeding by Vanounou’s ex-wife and a different unrelated criminal matter. (Mot. Ex. B, C.)

Plaintiffs assert Vanounou should be compelled to answer because his 5th Amendment privilege does not apply to the questions asked at the deposition.

In Opposition, Defendant Vanounou submits the declaration of La Shae Henderson, who is the public defender who represents Vanounou in the contempt matter brought by his ex-wife. Henderson declares that the contempt matter is related to Vanounou’s financial matters and ability to pay the mortgage and utilities payment in the divorce proceeding. (Henderson Decl. ¶ 4.) The hearing on the contempt matter is scheduled for September 22, 2022. (Id. ¶ 4.) Accordingly, Vanounou has a 5th Amendment right to not answer questions raised in the Motion to Compel until after the contempt hearing is over because the questions may have legal implications in the contempt proceeding. (Id. ¶ 5.)

Defendant Vanounou requests an Order temporarily staying his further testimony in this action until his contempt proceeding is concluded on or about September 22, 2022, when he asserts that he will be free to answer Plaintiffs questions.

Plaintiffs have not filed a Reply and have not shown why Defendant Vanounou’s 5th Amendment rights should be trampled upon by this motion to compel. This is especially true since Vanounou states under penalty of perjury that he will be able to answer the subject questions after the contempt hearing.

Therefore, the hearing on this motion is CONTINUED until after Vanounou’s contempt hearing is held. The request for sanctions is denied.

Conclusion

Plaintiffs’ Motion to Compel is CONTINUED to October 18, 2022, at 8:30 am.

Plaintiffs to give notice.

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