Tentative Rulings

Case Number: BC606662    Hearing Date: October 07, 2020    Dept: 37

HEARING DATE: October 7, 2020

CASE NUMBER: BC606662

CASE NAME: Heriberta Flores et al. v. 341 S. Alvarado LLC, et al.

MOVING PARTY: Defendant and Cross-Defendant, 341 S. Alvarado LLC

OPPOSING PARTY: Cross-Complainant Commonwealth Properties, LLC

TRIAL DATE: April 13, 2021

PROOF OF SERVICE: OK

PROCEEDING: Defendant’s Motion to Compel Deposition of Person Most Knowledgeable

OPPOSITION: September 24, 2020

REPLY: September 30, 2020

TENTATIVE: 341 S. Alvarado’s Motion to Compel the Deposition of Commonwealth’s PMK is GRANTED. Commonwealth shall confer with 341 S. Alvarado and agree to a deposition date, pursuant to the July 10, 2020 notice, within the next seven days, and the date shall be and the deposition shall be commenced within the next 45 days. The deponent may insist on a remote deposition pursuant to section 2025.310(d), but it is Commonwealth’s responsibility to arrange for any system requirements for him to participate remotely. Failure to do so, may result in sanctions pursuant to the CCP. No sanctions will be awarded to either party for this motion.

Background

This is a habitability case.  Plaintiffs are eighteen individuals comprising three families who respectively reside at units 200, 208, and 308 of the premises located at 341 S. Alvarado Street, Los Angeles, California 90057 (the “Subject Property”).  Defendants—341 S. Alvarado, LLC (“341 S. Alvarado”); Jonathan Wintner; MF Buildings, Inc. dba MF Property Management (MFPM); Michael Froehlich; Commonwealth Properties, LLC (“Commonwealth”); Alvarado, LLC (“Alvarado”); and Moussa Kashani—are alleged to be the owners and managers of the property at various points in time from 2012 to the present.  Plaintiffs alleged that 341 S. Alvarado owned the property from June 12, 2012 to May 30, 2014 and that Commonwealth owned the property from May 30, 2014 to April 16, 2015, and that Alvarado has owned the property since April 16, 2015. 

Cross-Complainant Commonwealth filed a Cross-Complaint against 341 S. Alvarado on May 22, 2017.  Plaintiffs filed a notice of settlement of the entire case on June 30, 2017, but Commonwealth’s cross-claims against 341 S. Alvarado have not been settled or dismissed.   

On March 13, 2020, Commonwealth’s attorney, James A. Sedivy, filed a Motion to be Relieved as Counsel. On April 16, 2020, the court continued the hearing on this motion to July 15, 2020. The Motion to be Relieved as Counsel was subsequently withdrawn by Commonwealth prior to July 15, 2020.

341 S. Alvarado now moves to compel the deposition of Commonwealth’s Person Most Knowledgeable, Moussa Kashani (“Kashani.”) Commonwealth opposes the motion.

Meet and Confer 

A motion to compel deposition must be accompanied by a good faith 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, subd. (b)(2).)  A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.)  

341 S. Alvarado submits the declaration of its attorney, Eric P. Weiss (“Weiss”) to demonstrate that it has fulfilled its statutory meet and confer obligations prior to filing the instant motion. Weiss attests that his office has noticed the deposition of Kashani on three occasions for October 2, 2019, November 21, 2019 and January 30, 2020. (Weiss Decl. ¶ 8, Exhibits A-C.) Kashani did not appear at any of these depositions. (Id.)

Thereafter, Weiss attests that his office noticed Kashani’s deposition for the fourth time, for July 10, 2020. (Weiss Decl. ¶ 9.) On July 3, 2020, Commonwealth’s counsel objected and indicated that Kashani would not appear. (Id.; Exhibit E.) In response, Weiss indicated that the deposition would only be continued if “firm dates” were provided by July 9, 2020. (Id.; Exhibit F.)

Subsequently, and according to Weiss, the parties entering into a stipulation by which Kashani would appear at a date certain. (Weiss Decl. ¶ 12, Exhibit H.) Thereafter, Weiss attests that he circulated a copy of the stipulation but did not receive a date certain from Commonwealth’s counsel as of the filing of the instant motion by which Kashani would appear. (Id.)

The court finds that the Weiss Declaration is sufficient for purposes of Code of Civil Procedure, section 2025.450, subdivision (b)(2). Kashani has not appeared for any deposition, and Weiss has attested that he inquired about Kashani’s nonappearance.

Discussion 

1. Legal Standard 

   Code of Civil Procedure, section 2025.450, provides in relevant part:

   (a)  If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  

   (Code Civ. Proc., § 2025.450, subd. (a).)  The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.  (Id. § 2025.450, subd. (b)(1).)   

2. Analysis

    

   341 S. Alvarado argues that an order compelling Kashani’s deposition is required because Kashani is the owner and PMK for Commonwealth, and was primarily involved in the transaction with 341 S. Alvarado that forms the basis of the operative First Amended Cross Complaint. (Motion, 6-7.)

   In opposition, Commonwealth contends that an order compelling Kashani’s deposition is not warranted for the following reasons: (1) Commonwealth timely objected to all four notices of Kashani’s deposition for valid reasons, (2) Commonwealth agrees to produce Kashani for deposition on October 30, 2020, so no order is necessary even though no stipulation has been reached on that date, (3) Commonwealth has not received “meaningful discovery responses” from 341 S. Alvarado, which Commonwealth contends is necessary prior to Kashani’s deposition. (Opposition, 5-8.)

   Further, Commonwealth contends any delay in producing Kashani for deposition can also be attributed to COVID-19 and submits Kashani’s Declaration in support of this contention. Kashani attests in support of Commonwealth’s opposition that he is “70 years old” and “not in the best of health.” (Kashani Decl. ¶ 2.) Additionally, Kashani attests that he does not know how to operate a computer “for any purpose,” including email, or downloading “applications or programs.” (Id.) Thus, Kashani attests that he will not be able to appear for a remote deposition given these issues. (Id.) Additionally, Kashani attests that due to his advanced age, he does not feel that “it is safe” for him to attend an in-person deposition given the risk of COVID-19. (Kashani Decl. ¶ 3.) Further, Commonwealth’s counsel Jeffrey Gersh (“Gersh”) also attests that on September 21, 2020, he met and conferred with Weiss regarding Kashani’s Deposition and the parties discussed Kashani’s difficulties with setting up a remote deposition and that Kashani could not guarantee that he would obtain the necessary assistance by October 30, 2020. (Gersh Decl. ¶ 21.)

   In reply, 341 S. Alvarado contends that an order compelling Kashani’s deposition is warranted because Kashani failed to appear at his duly noticed deposition on July 10, 2020 and Commonwealth’s counsel has unreasonably frustrated 341 S. Alvarado’s attempts to depose Kashani since October 2019 by filing and then withdrawing its motion to be relieved as counsel. (Reply, 3-6.) Further, 341 S. Alvarado contends that whether Commonwealth has received its discovery responses has no bearing on whether an order compelling Kashani’s deposition is warranted. (Id.)

   The court agrees with 341 S. Alvarado that an order compelling Kashani’s deposition is warranted. Commonwealth’s objection to the July 10, deposition was primarily a scheduling issue. Unless there was an agreement that the deposition would not be taken until after the written discovery responses as condition for an extension of time, the timing of the deposition and the discovery response is irrelevant. The scheduling must be resolved by scheduling and completing the deposition.

   Further, the court recognizes the challenges in conducting depositions in light of COVID-19, but such difficulties do not absolve Commonwealth of the need to produce Kashani for deposition. Pursuant to Code of Civil Procedure section 2025.310, subdivision (b), “any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent.”

   341 S. Alvarado’s Motion to Compel the Deposition of Commonwealth’s PMK is GRANTED. Commonwealth shall confer with 341 S. Alvarado and agree to a deposition date, pursuant to the July 10, 2020 notice, within the next seven days, and the date shall be and the deposition shall be commenced within the next 45 days. Failure to do so, may result in sanctions pursuant to the CCP.

   The deponent may insist on a remote deposition pursuant to section 2025.310(d), but it is Commonwealth’s responsibility to arrange for any system requirements for him to participate remotely.

3. Monetary Sanctions

   Code of Civil Procedure, section 2025.450, subdivision (g) requires the court to impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, “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.”  (Code Civ. Proc., § 2025.480, subd. (j).)

   The court finds that the parties are mutually responsible for this motion coming before the court, and it would be unjust to award sanctions to either party.

   Conclusion

   341 S. Alvarado’s Motion to Compel the Deposition of Commonwealth’s PMK is GRANTED. Commonwealth shall confer with 341 S. Alvarado and agree to a deposition date, pursuant to the July 10, 2020 notice, within the next seven days, and the date shall be and the deposition shall be commenced within the next 45 days. The deponent may insist on a remote deposition pursuant to section 2025.310(d), but it is Commonwealth’s responsibility to arrange for any system requirements for him to participate remotely. Failure to do so, may result in sanctions pursuant to the CCP. No sanctions will be awarded to either party for this motion.

   The deponent may insist on a remote deposition pursuant to section 2025.310(d), but it is Commonwealth’s responsibility to arrange for any system requirements for him to participate remotely. 341 S. Alvarado is to give notice.