Judge: Yolanda Orozco, Case: 19STCV43861, Date: 2022-10-18 Tentative Ruling
Case Number: 19STCV43861 Hearing Date: October 18, 2022 Dept: 31
MOTION
TO COMPEL TESTIMONY AT DEPOSITION IS DENIED WITHOUT PREJUDICE
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 Informal Discovery
Conference 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 Moshe 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).)
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
The suit pertains to ownership interest of 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.)
On
August 19, 2022, the request for sanctions was denied as Moshe acted with
substantial justification and the hearing was continued until after Moshe’s
contempt hearing was held.
Counsel for
Defendant Moshe asserts that the contempt hearing has been held, and that he
has provided Plaintiffs’ counsel with dates for the deposition of Moshe but has
not heard back from Plaintiffs’ counsel. (Brown Decl. ¶4-10, Ex. 1 - 5.) Counsel for Moshe also asserts he received
Plaintiffs’ reply in support of this Motion filed on October 11, 2022, however,
no reply has been filed with this Court.
As it appears the motion may now be moot as Defendant has offered dates for the deposition and is waiting to hear back from Plaintiff. In addition, Plaintiff’s reply has not been filed with the court. Based on the foregoing, the motion is DENIED without prejudice. Plaintiff may renew his motion if it becomes necessary.
Conclusion
For the reasons stated, Plaintiffs’ Motion to Compel is DENIED without prejudice.
Plaintiff is to give notice.