Judge Yolanda Orozco, Case 21STCV38704 2023-02-17 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV38704, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV38704 Hearing Date: February 17, 2023 Dept: 31

MOTION FOR CONTEMPT RE:

SILVER YEARS HEALTHCARE INC. AND DIANA IS GRANTED, IN PART

TENTATIVE RULING

Plaintiff’s request for monetary sanctions in the amount of $2,125.00 is GRANTED against Silver Years and Diana Hakobyan.

Plaintiff’s request for an Order compelling Silver Years Healthcare, Inc. to answer questions and produce records relating to Elmer Bruce pursuant to a deposition subpoena properly served on May 4, 2022, is GRANTED.

Background

On October 20, 2021, Plaintiff Elmer Bruce, by and through his successor in interest Kynan Burce, filed a Complaint for Elder Abuse and Negligent Hiring and Supervision against California Care, Inc; Edward Melkumyan, and Does 1 to 250.

On June 30, 2022, Plaintiff moved for an order compelling nonparty Silver Years Healthcare, Inc.’s compliance with a deposition subpoena.

On October 4, 2022, the Motion was Granted.

On January 17, 2023, Plaintiff filed a Motion for Contempt re Silver Years Healthcare, Inc., and Diana Hakobyan for the Failure to Comply with Deposition Subpoena and Request for Monetary Sanctions in the amount of $2,125.00

No opposition or reply has been filed.

Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc. § 2025.450,¿subd. (h) (depositions); § 2030.290,¿subd. (c) (interrogatories); § 2031.300,¿subd. (c) (demands for production of documents).)

Monetary sanctions for misuse of discovery may be imposed against the party engaging in such conduct, and/or against the attorney advising the improper conduct. (Cod Civ. Proc., §§ 2023.030(a), 2025.480(j).)

“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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.” (Code Civ. Proc., § 2023.030 subd. (a).) “The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.” (Code Civ. Proc.,¿§ 2023.030 subd. (e).)¿

In choosing among its various sanction options, i.e., terminating, evidentiary, issue, or monetary, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason. (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928 – 929.) Specifically, the discretion to impose such discovery sanctions is a broad authority subject to reversal only for arbitrary, capricious, or whimsical action, and only two facts are absolutely prerequisite to their imposition: (1) there must be a failure to comply, and (2) the failure must be willful. (Id.; see also Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.)

Discussion

Plaintiff, by and through his Successor in Interest, Kynan Bruce, moves for the Court to award monetary sanctions against nonparties Silver Years Healthcare, Inc., and Diana Hakobyan in the amount of $2,2125.00 and find both parties in contempt for willfully misusing the discovery process by disobeying a proper subpoena and by refusing to appear and produce the documents specified in the deposition subpoena.

Plaintiff also requests an Order compelling Silver Years Healthcare, Inc.—a nonparty witness—to answer questions and produce records relating to Bruce Elmer pursuant to a deposition subpoena served on the entity witness on May 04, 2022.

Plaintiff asserts that on May 24, 2022, Annie H., was served with a deposition subpoena for personal appearance and production on June 14, 2022. (Baladejo Decl. ¶ 3, Ex. 1.) Annie H is believed to be Diana Hakobyan, the owner, director, and officer of Silver Years Healthcare, Inc. (Ex. 6.)

Silver Years failed to attend and produce the requested documents at the June 14, 2022 deposition and provided no objections to the deposition notice. (Baladejo Decl. ¶ 4.) The Motion to Compel Silver Years’ compliance with the deposition subpoena was granted on October 04, 2022. (Baladejo Decl. ¶ 5, Ex. 2.) Despite the motion to compel, Silver Years has failed to produce records and has refused to appear for deposition as ordered. (Baladejo Decl. ¶ 5.)

The California Secretary of State lists Diana Hakobyan as the sole Officer and Director of Silver Years Healthcare and agent for service of process. (Ex. 6.) Silver Years is also listed as “active” on the California Secretary of State website. (Ex. 7) The address listed on the California Secretary of State website for Silver Years is 11436 Vanowen Street, North Hollywood, California 91605. (Ex. 6.)

Plaintiff was told that Ana is affiliated with Silver Years Health Care. Inc. (Baladejo Decl. ¶ 7.) Ana requested the notice of ruling on October 18, 2022 be sent to her email at yourchoice7@yahoo.com. (Id.) The ruling was sent and despite multiple follow ups, Ana has failed to provide records on Silver Years Healthcare, Inc.’s behalf. (Id.) After calling the phone number associated with Silver Years, an employee advised the notice of ruling be sent to silveryearshc@yahoo.com. (Baladejo Decl. ¶ 8.) Again, no records were provided. (Id.)

Plaintiff asserts that when he calls the phone number associated with Silver Years, it is forwarded to the voicemail box for Ana Hakobyan. (Baladejo Decl. ¶ 9.)

Plaintiff has provided sufficient evidence that Silver Years and Diana Hakobyan have been personally served with deposition notice and failed to attend, and have failed to comply with this Court’s direct order that they do so. (Ex. 1.)

Accordingly, Plaintiff’s request for monetary sanctions in the amount of $2,125.00 is GRANTED against Silver Years and Diana Hakobyan.

The Court also GRANTS Plaintiff’s request for an Order compelling Silver Years to answer questions and produce records relating to Elmer Bruce pursuant to a deposition subpoena properly served on May 4, 2022.

Plaintiff requests that the Court find Silver Years and Diana Hakobyan in contempt for failing to obey a duly issued subpoena and the Court’s October 4, 2022 granting Plaintiff’s motion to compel their compliance. Code of Civil Procedure section 2023.030 subdivision (e) allows the Court to treat a discovery misuse as contempt of court. (See Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 80.)

Civil contempt procedures are set forth in the Code of Civil Procedure sections 1209 through 1222.¿Under these rules, a proceeding for adjudication of constructive contempt is customarily initiated by the issuance of an Order to Show Cause.¿ (In re Rose (1949) 90 Cal.App.2d 299, 305.)¿The proceeding is also initiated by the filing of an affidavit or declaration, stating the facts constituting the alleged contempt, in order to confer jurisdiction upon the court to exercise its contempt powers over the accused.¿ (Application of Liu (1969) 273 Cal.App.2d 135, 140-41.)¿

“The order to show cause acts as a summons to appear in court on a certain day and, as its name suggests, to show cause why a certain thing should not be done. (Citation) Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause; otherwise, the court lacks jurisdiction to proceed.” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286–1287 [italics original].)

Plaintiff must separately file an affidavit in support of and an application for the issuance of an order to show cause re contempt pursuant to the requirements in CCP sections 1209, et seq, to initiate contempt proceedings.

Plaintiff’s Motion is otherwise GRANTED.

Conclusion

Plaintiff’s request for monetary sanctions in the amount of $2,125.00 is GRANTED against Silver Years and Diana Hakobyan.

Moving party to give notice.