AKOP TOROSIAN ET AL VS ARUTYUN FITILCHYAN ET AL

Tentative Rulings

Case Number: BC617479    Hearing Date: November 08, 2019    Dept: NCD

TENTATIVE RULING

MOTION FOR PARTIAL LIFTING OF DISCOVERY STAY

Calendar: 8

Date: 11/8/19

Case No: BC 617479 Trial Date: None Set

Case Name: Torosian, et al. v. Fitilichyan, et al.

Moving Party: Defendant Armen Tashjian

Responding Party: Plaintiff Robert Torosian (No Opposition)

RELIEF REQUESTED:

Order lifting present stay on discovery for limited purpose of seeking discovery and deposition testimony from plaintiff Robert Torasian

SUMMARY OF FACTS:

Plaintiffs Akop Torosian and Robert Torosian allege that in April of 2014, plaintiff Akop Torosian retained the services of defendant Arutyun Fitilchyan, a locksmith, to provide locksmith services at plaintiff’s residence in Glendale. When defendant failed to show up for a scheduled meeting, and plaintiff called defendant to find out his estimated time of arrival, defendant became upset, using profanity and abusive language. Plaintiff contacted defendant Ashot Mkhitaryan, defendant Fitilchyan’s apprentice, whom plaintiff knew, and informed him of the phone conversation with Fitilchyan. Defendant Mkhitaryan arranged for plaintiff to meet with defendant Fitilchyan that day, at the body shop owned by defendant Hrachya Gasparyan, where plaintiff was physically assaulted by defendants Gasparyan and Fitilchyan, but was able to flee the shop.

The complaint alleges that defendant Mkhitaryan then lured plaintiff Akop Torosian to return to the body shop to resolve the dispute amicably. Plaintiff contacted his brother, plaintiff Robert Torosian, to accompany him.

Upon arrival at the body shop, defendant Fitilchyan charged at plaintiff Robert Torosian and attempted to strike him with his fists, while defendant Gasparyan produced a handgun and shot plaintiff Robert Torosian in the lower abdomen. Defendants Fitilchyan and Gasparyan, and possibly other shooters, continued shooting at plaintiffs. In defense of his brother and himself, plaintiff Akop Torosian produced a firearm and returned fire, and Fitilchyan and Gasparyan were shot in the cross-fire. Plaintiff Akop Torosian called 911 and plaintiff Robert Torosian was transported to the hospital, while plaintiff Akop Torosian was detained pending a criminal investigation and released later that evening.

The complaint alleges that defendants Fitilchyan and Mkhitaryan, along with their counsel, moving defendant Armen Tashjian, and defendant Armen Jermakyan, conspired to extort money from plaintiff Akop Torosian, and used threats, intimidation and fear to force plaintiffs to pay hundreds of thousands of dollars, and also came up with a plan to provide law enforcement officers with inaccurate statements which would result in criminal charges against plaintiffs, and force them to pay the sums demanded. Fitilchyan, with the counsel of defendant Tashjian, gave a false statement to law enforcement, which resulted in charges being filed against plaintiff Akop Torosian. No charges were filed against plaintiff Robert Torosian. Plaintiff Akop Torosian was released on bail. The complaint alleges that from November of 2014 through June of 2015, defendants continued to attempt to extort $2 million from plaintiffs, demanding this sum in exchange for defendants’ help in having the charges dropped against Akop Torosian.

The complaint alleges that plaintiffs informed the Los Angeles District Attorney’s Office of the plot to extort money, and that after investigation, defendant Tashjian was arrested and charged with extortion, conspiracy and other charges. The investigation against the remaining defendants is ongoing. In November 2015, the charges against plaintiff Akop Torosian were dropped.

Plaintiffs’ spouses, plaintiffs Marina Fermanyan and Elda Madatyan, bring a cause of action for loss of consortium against all defendants.

ANALYSIS:

On February 27, 2019, the court stayed discovery in this and a related case, and permitted Fitilchyan and Gasparyan to file an anti-SLAPP motion.

Moving defendant Armen Tashjian previously filed a motion seeking to have the discovery stay lifted in this matter as to all parties with the exception of Armen Tashjian, Hrachya Gasparian and Arutyun Fitilchyan. The motion was heard on July 26, 2019, and was denied, the court observing that moving party had failed to show that he needed discovery “for any particular purpose, or what discovery he is proposing to conduct.”

The motion indicates that the court denied the motion, but did so without prejudice to a party bringing a more narrowly-tailored motion to lift discovery as to particular individual parties, although this is not reflected in the court’s minute order.

The motion argues that plaintiff Robert Torosian is not in a situation where he has fifth amendment rights implicated in the pending criminal action against Tashjian, and that Torosian he has been giving statements to the police in connection with the criminal matter, and is providing electronically stored information and documents in his possession to the prosecution. Defendant argues that further delay in reviewing and producing such documents, in particular the electronically-stored documents and the metadata pertaining thereto, could be lost, destroyed, or overwritten prior to production in the present matter, so that a deposition of Robert Torosian is necessary to avoid spoliation of evidence. There is also an argument that Robert Torosian had previously represented at Tashjian’s preliminary hearing in June of 2019 that he was in possession of the cellular phone used to record defendant Tashjian, and phones subpoenaed by Tashjian, and that Robert Torosian was ordered by the judge to preserve phones and turn them over for imaging. The motion seems to argue that since the hearing on the previous motion in this action, at a continued preliminary hearing on September 16, 2019, Robert Torosian appeared and reneged on his agreement to permit imaging of his phone. [Tashjian Decl. ¶¶ 9, 11-13]. The argument is that there is doubt as to whether Torosian is still in possession of these phones or can produce them if necessary.

The motion seeks that the court order that moving party be permitted to take the deposition of Robert Torosian, and also propound special interrogatories, form interrogatories, requests for production of documents and requests for admissions. None of this proposed discovery is submitted to the court.

The preliminary hearing transcripts suggest that there was some sort of informal agreement that phones would be turned over, the court ordered that they not be destroyed, stating to Torosian, “So make sure you know, preserve that phone. Do not destroy it. Do not do anything to erase it.” [Ex 4, p. 53: 18-24]. It appears that the matter was left with Tashjian to submit a proposed order on the examination of that phone, non-invasive, by an expert with Torosian present. The argument seems to be that at the continued hearing, Torosian withdrew his agreement, but the transcript submitted is again from the June 17, 2019 hearing, not the continued September hearing, and the court seemed to conclude that a subpoena would be necessary. [Ex. 5, p. 64]. It does not appear that there has been some recent change of heart, but that this developed at the June hearing, and there was never any order by the other court to turn over the phones.

In any case, it would appear that permitting discovery without moving party submitting the exact discovery requests and deposition topics to be covered remains overly broad, and does not narrowly address the specific issue here, which apparently could be addressed by an order of the court prohibiting any destruction or erasure of evidence in this matter, and potentially permitting a discovery request for telephones alleged to have recorded the incident giving rise to this matter. In addition it is highly likely that the police have obtained and preserved the plaintiff’s cell phone records.

It is not clear why there is no opposition to this motion, and it might be discussed at the hearing if the parties agree that it is time for some limited discovery to begin in this matter in connection with witnesses such as Robert Torosian without fifth amendment concerns. The court will permit the submission of a proposed protective order with respect to the preservation of evidence for the court’s signature in this matter, and to include cell phones and electronically stored information pertaining to this matter, and to include cell phones and electronically stored information pertaining to this matter. Also, there is no evidence to spoliation of evidence or any threat of spoliation of evidence.

RULING:

[No Opposition]

Defendant Armen Tashjian’s Motion for Partial Lifting of Discovery Stay is DENIED.

The motion again fails to submit the exact discovery sought to be propounded, to permit the court to determine if the proposed discovery will address the issues of concern raised by the motion, in effect, that evidence which should be preserved for use in this action may not be appropriately preserved.