NIEL ITZIK ADRABI VS RICHARD HARRISON

Tentative Rulings

Case Number: ****3182 Hearing Date: February 9, 2022 Dept: 29

Motions to Compel Deposition of Person Most Knowledgeable of Tech Stone and Marble, Inc. and Tech Tile, Inc. and Request for Sanctions filed by Defendant Richard Harrison

TENTATIVE

Defendant Richard Harrison’s motions to compel the person most knowledgeable of Tech Stone and Marble Inc, and Tech Tile, Inc. are GRANTED. The request for sanctions against Plaintiff Niel Itzik Adrabi and counsel of record Abir Cohen Treyzon Salo LLP is granted in the amount of $520.

Legal Standard

“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 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).)

Code of Civil Procedure 2025.450(g)(1) provides: “If a motion under subdivision (a) is granted, the court shall 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 the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition sanction unjust.” (C.C.P. 2025.450(g)(1).)

Discussion

Defendant moves to compel the depositions of Tech Stone and Marble, Inc. and Tech Tile, Inc.’s person most knowledgeable (“PMK”), arguing that Plaintiff is part owner of both companies and claims he receives compensation from Tech Stone and Tech Tile in the form of salary and dividends, but has refused to provide relevant information regarding his income and compensation in response to Defendant’s discovery requests. (Fajardo Decl. 12). On July 22, 2021, Tech Stone and Tech Tile were served with a deposition notice and deposition subpoena for their person most knowledgeable to appear for deposition on August 2, 2021. (Fajardo Decl. Exh. A.) Plaintiff’s counsel objected to the deposition notice on the grounds that the deposition was noticed without clearing the date with their office. Defendant’s counsel requested that Plaintiff’s counsel provide alternate dates and times for the deposition, but Plaintiff’s counsel never responded. Neither Plaintiff’s counsel nor the PMK of Tech Stone or Tech Tile appeared at the duly noticed August 2, 2021 deposition. (Fajardo Decl. 15).

Plaintiff argues in opposition that Code of Civil Procedure section 2025.480 provides that a motion to compel related to a deposition shall be filed within 60 days of the record of the deposition. Here, Defendant noticed the PMK deposition for August 2, 2021, and thereafter took the notice of non-appearance on August 2, 2021. The motion to compel was filed on November 2, 2021—92 days after the record of the deposition had been taken. Therefore, the motion was not filed within 60 days and is untimely.

Code of Civil Procedure 2025.480 provides: “(a) If a deponent fails to answer any question or to produce any document... the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall 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.” (CCP 2025.480(a), (b).). Thus, section 2025.480 is not applicable here, where the deponent has failed to appear for deposition.

Thus, as Defendant has properly noticed the deposition of Plaintiff’s companies’ PMK, and they failed to appear, the motions to compel the PMK of Tech Stone and Marble Inc., and Tech Tile, Inc. are granted.

As the motions are granted, the request for sanctions against Plaintiff and his counsel of record is also granted in the amount of $520 (2 hours at $200 per hour, plus $120 in filing fees.)

Conclusion

Accordingly, Defendant Richard Harrison’s motions to compel the person most knowledgeable of Tech Stone and Marble Inc, and Tech Tile, Inc. are GRANTED. The request for sanctions against Plaintiff Niel Itzik Adrabi and counsel of record Abir Cohen Treyzon Salo LLP is granted in the amount of $520.

Moving party is ordered to give notice.

Motion to Compel Deposition of “De-Designated” Expert/Current “Consultant” Scott Forman, M.D.

TENTATIVE

Plaintiff’s motion to compel the deposition of Scott Forman, M.D. is GRANTED.

Legal Standard

Under CCP 2032.610(a), “If a party submits to . . . a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210) . . . , that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party: (1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner. . . . (b) If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier. (c) In the circumstances described in subdivision (a), the protection of work product under Chapter 4 . . . is waived, both for the examiner’s writings and reports and to the taking of the examiner’s testimony.” See also Queens of Angels Hospital v. Superior Court (1976) 57 Cal. App. 3d 370, 374.

“A party may ‘hide’ an expert from deposition by withdrawing him and dubbing him a ‘consultant,’ thereby reinstating work product protection. . . .” Kennedy v. Superior Court (1998) 64 Cal. App. 4^th 674, 679. The exception to this rule is when the expert is also the examining physician pursuant to section 2032. Id. “By the explicit terms of section 2032, subdivision (h), the work product privilege with regard to the examination is waived. Id. at 678-79. “Despite the withdrawal, petition is entitled to depose [the consultant] with regard to the physical examination.” Id. at 679. “The trade-off is clear. If one party to personal injury litigation is required by his or her opponent to submit to a medical examination, at the very least he or she is entitled to a report of the information obtained by the adversary in litigation.” Id. at 677.

Discussion

Plaintiff requests an order compelling the deposition of Scott Forman, M.D.

On July 12, 2021, Defendant designated Scott Forman, M.D. as its expert Orthopedic Surgeon. Dr. Forman performed a Defense Medical Examination of Plaintiff on July 30, 2021. On December 23, 2021, Plaintiff noticed the deposition of Dr. Forman to take place on Monday, January 10, 2022. On January 8, 2022, defense counsel advised Plaintiff that they intended to “de-designate” Dr. Forman and took the deposition off calendar. Plaintiff noticed the deposition of Dr. Forman again on January 10, 2022, to take place on January 13, 2022. Defense counsel then advised Plaintiff’s counsel that Dr. Forman was now serving as Defendant’s “consultant” and refused to produce him for deposition.

In opposition, Defendant contends that Plaintiff did not serve Dr. Forman with a proper subpoena. Code of Civil Procedure section 2025.270(a) requires that “[a]n oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” Defendant argues Plaintiff noticed the deposition on January 10, 2022 for January 13, 2022, which is only 3 days after service.

The Court finds that because Plaintiff submitted to an independent medical examination, she has the right to depose Dr. Forman. Moreover, prior to the January 10, 2022 notice of deposition, Plaintiff had noticed the deposition of Dr. Forman on December 23, 2021, to take place on January 10, 2022.

The motion is therefore GRANTED. Dr. Forman is ordered to appear for his deposition within 10 days of this order.Court to address timing of deposition and trial at the hearing.

Case Number: ****3182 Hearing Date: February 7, 2022 Dept: 29

TENTATIVE- Two motions to compel deposition of PMK- Tech Stone and Marble Inc.

Defendant Richard Harrison’s motions to compel the person most knowledgeable of Tech Stone and Marble Inc, and Tech Tile, Inc. are GRANTED. The request for sanctions against Plaintiff Niel Itzik Adrabi and counsel of record Abir Cohen Treyzon Salo LLP is granted in the amount of $520.

Legal Standard

“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 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).) Code of Civil Procedure 2025.450(g)(1) provides: “If a motion under subdivision (a) is granted, the court shall 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 the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition sanction unjust.” (C.C.P. 2025.450(g)(1).)

Discussion

Defendant moves to compel the depositions of Tech Stone and Marble, Inc. and Tech Tile, Inc.’s person most knowledgeable (“PMK”), arguing that Plaintiff is part owner of both companies and claims he receives compensation from Tech Stone and Tech Tile in the form of salary and dividends, but has refused to provide relevant information regarding his income and compensation in response to Defendant’s discovery requests. (Fajardo Decl. 12). On July 22, 2021, Tech Stone and Tech Tile were served with a deposition notice and deposition subpoena for their person most knowledgeable to appear for deposition on August 2, 2021. (Fajardo Decl. Exh. A.) Plaintiff’s counsel objected to the deposition notice on the grounds that the deposition was noticed without clearing the date with their office. Defendant’s counsel requested that Plaintiff’s counsel provide alternate dates and times for the deposition, but Plaintiff’s counsel never responded. Neither Plaintiff’s counsel nor the PMK of Tech Stone or Tech Tile appeared at the duly noticed August 2, 2021 deposition. (Fajardo Decl. 15).

Plaintiff argues in opposition that Code of Civil Procedure section 2025.480 provides that a motion to compel related to a deposition shall be filed within 60 days of the record of the deposition. Here, Defendant noticed the PMK deposition for August 2, 2021, and thereafter took the notice of non-appearance on August 2, 2021. The motion to compel was filed on November 2, 2021—92 days after the record of the deposition had been taken. Therefore, the motion was not filed within 60 days and is untimely.

Code of Civil Procedure 2025.480 provides: “(a) If a deponent fails to answer any question or to produce any document... the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall 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.” (CCP 2025.480(a), (b).). Thus, section 2025.480 is not applicable here, where the deponent has failed to appear for deposition.

Thus, as Defendant has properly noticed the deposition of Plaintiff’s companies’ PMK, and they failed to appear, the motions to compel the PMK of Tech Stone and Marble Inc., and Tech Tile, Inc. are granted.

As the motions are granted, the request for sanctions against Plaintiff and his counsel of record is also granted in the amount of $520 (2 hours at $200 per hour, plus $120 in filing fees.)

Conclusion

Accordingly, Defendant Richard Harrison’s motions to compel the person most knowledgeable of Tech Stone and Marble Inc, and Tech Tile, Inc. are GRANTED. The request for sanctions against Plaintiff Niel Itzik Adrabi and counsel of record Abir Cohen Treyzon Salo LLP is granted in the amount of $520.

Moving party is ordered to give notice.

TENTATIVE - Motion to Compel Deposition of “De-Designated” Expert/Current “Consultant” Scott Forman, M.D.

Plaintiff’s motion to compel the deposition of Scott Forman, M.D. is GRANTED.

Legal Standard

Under CCP 2032.610(a), “If a party submits to . . . a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210) . . . , that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party: (1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner. . . . (b) If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier. (c) In the circumstances described in subdivision (a), the protection of work product under Chapter 4 . . . is waived, both for the examiner’s writings and reports and to the taking of the examiner’s testimony.” See also Queens of Angels Hospital v. Superior Court (1976) 57 Cal. App. 3d 370, 374.

“A party may ‘hide’ an expert from deposition by withdrawing him and dubbing him a ‘consultant,’ thereby reinstating work product protection. . . .” Kennedy v. Superior Court (1998) 64 Cal. App. 4^th 674, 679. The exception to this rule is when the expert is also the examining physician pursuant to section 2032. Id. “By the explicit terms of section 2032, subdivision (h), the work product privilege with regard to the examination is waived. Id. at 678-79. “Despite the withdrawal, petition is entitled to depose [the consultant] with regard to the physical examination.” Id. at 679. “The trade-off is clear. If one party to personal injury litigation is required by his or her opponent to submit to a medical examination, at the very least he or she is entitled to a report of the information obtained by the adversary in litigation.” Id. at 677.

Discussion

Plaintiff requests an order compelling the deposition of Scott Forman, M.D.

On July 12, 2021, Defendant designated Scott Forman, M.D. as its expert Orthopedic Surgeon. Dr. Forman performed a Defense Medical Examination of Plaintiff on July 30, 2021. On December 23, 2021, Plaintiff noticed the deposition of Dr. Forman to take place on Monday, January 10, 2022. On January 8, 2022, defense counsel advised Plaintiff that they intended to “de-designate” Dr. Forman and took the deposition off calendar. Plaintiff noticed the deposition of Dr. Forman again on January 10, 2022, to take place on January 13, 2022. Defense counsel then advised Plaintiff’s counsel that Dr. Forman was now serving as Defendant’s “consultant” and refused to produce him for deposition.

In opposition, Defendant contends that Plaintiff did not serve Dr. Forman with a proper subpoena. Code of Civil Procedure section 2025.270(a) requires that “[a]n oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” Defendant argues Plaintiff noticed the deposition on January 10, 2022 for January 13, 2022, which is only 3 days after service.

The Court finds that because Plaintiff submitted to an independent medical examination, she has the right to depose Dr. Forman. Moreover, prior to the January 10, 2022 notice of deposition, Plaintiff had noticed the deposition of Dr. Forman on December 23, 2021, to take place on January 10, 2022.

The motion is therefore GRANTED. Dr. Forman is ordered to appear for his deposition within 5 days.Moving party to give notice.

b"

Case Number: ****3182 Hearing Date: December 8, 2021 Dept: 29

TENTATIVE

Defendant Richard Harrison’s Motion to Compel Compliance with Subpoena for Production of Business Records to Third Party Amnon Mizrahi, CPA and Request for Sanctions is DENIED.

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify. (See Code Civ. Proc. ; 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.)

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., ; 1987.1, subd. (a).)

The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35-37.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. 7 Cal. 4^th at pp. 37–40.)

When privacy rights are implicated, the broad sweep of discovery is significantly narrowed, such that information can be discovered on a showing of a particularized need by the party seeking discovery, and by demonstrating that the discovery sought is directly relevant to a claim or defense, and that there is no less intrusive alternative. (Britt v. Superior Court (1978) 20 Cal.3d 844.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017-1020 [directing trial court to grant motion to quash as to discovery request that was not narrowly drawn to enable the court to evaluate the appropriate extent of disclosure].) If the court determines that the records are directly relevant to the action, it must carefully balance the need for discovery against the right of privacy. (Id. at 525.) The party seeking the discovery must show that the information cannot be obtained through depositions or non-confidential sources, and if discovery is allowed it must be minimally intrusive. (Harding Lawson Assocs. v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)

Discussion

Defendant moves for an order compelling compliance with a subpoena for production of business records issued to third party Amnon Mizrahi, Plaintiff’s CPA (CPA) pertaining to Plaintiff’s tax returns, financial information, W2 forms, earnings, paystubs, profits, commissions, and bonuses from 2012 to present.

Plaintiff objected to the subpoena on privilege grounds. (Wu Decl., Exhs. B, C.)

“This privilege against forced disclosure of tax returns has been reaffirmed in a variety of situations by both this court and the courts of appeal.” (Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 720.) “The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns.” (Id.) However, “[t]he privilege is waived or does not apply in three situations: “(1) there is an intentional relinquishment [citation], (2) the 'gravamen of [the] lawsuit is so inconsistent with the continued assertion of the taxpayer's privilege as to compel the conclusion that the privilege has in fact been waived' [citation], or (3) a public policy greater than that of confidentiality of tax returns is involved [citation].” (Id. at 721.)

This privilege also extends to W2 forms. (See Brown v. Superior Court (1977) 71 Cal.App.3d 141, 142-144.)

Defendant argues that Plaintiff has waived this privilege by producing his W2 tax forms from 2014, 2015, and 2017 and select portions of his personal income tax returns from 2014-2017. However, simply because Plaintiff produced some portions of his tax information or his W2 forms for certain years does not mean he waived the privilege as to the rest of his tax information in perpetuity.

The court in Schnabel v. Sup. Ct. (1993) 5 Cal.4th 704, 721 found there was a waiver of the privilege because of an agreement to produce necessary information, which entailed tax information. Similarly, Defendant cites to Marriage of Parks (1982) 138 Cal.App.3d 346, 349, and argues that the privilege is defeated if the taxpayer has expressly consented to disclosure. However, Plaintiff has not consented to its disclosure; Plaintiff has objected.

Further, Plaintiff seeks damages for loss of earnings. But this does not render the nature of the action “so inconsistent” with the continued assertion of the privilege on Plaintiff’s tax returns. “The fact that financial records are difficult to obtain or that a tax return would be helpful, enlightening or the most efficient way to establish financial worth is not enough. Likewise, standing alone, a finding of liability for punitive damages is insufficient.” (Weingarten v. Superior Court (2002) 102 Cal. App. 4th 268, 276.)

Sanctions

Where the court finds that a “motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive[]” the Court has authority to “award the amount of reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees[.]” (Code Civ. Proc. 1987.2.)

The Court finds sanctions are not warranted in this case.

Conclusion

Accordingly, Defendant Richard Harrison’s Motion to Compel Compliance with Subpoena for Production of Business Records to Third Party Amnon Mizrahi, CPA and Request for Sanctions is DENIED.

Moving party is ordered to give notice.

b"

Case Number: ****3182 Hearing Date: November 9, 2021 Dept: 29

TENTATIVE Defendant Richard Harrison’s motion to compel a third defense medical examination is GRANTED.

Legal Standard

Code of Civil Procedure section 2032.220 grants the ability to demand one physical examination without leave of court to any defendant in a case where the plaintiff is seeking recovery for personal injury. Where, like this case, a defendant has already demanded and effectuated one physical examination on the plaintiff and additional physical examinations are requested, Code of Civil Procedure section 2032.310 is invoked. To satisfy the requirements and receive an order to compel an additional medical examination under Code of Civil Procedure section 2032.310, the defendant must show good cause for the examination. Code Civ. Proc ; 2032.320(a). The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. Vinson v. Superior Court, (1987) 43 Cal.3d 833, 840. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Discussion

Meet and Confer

The declaration of Milton V. Fajardo is sufficient to satisfy the meet and confer obligations prior to filing the instant motion.

Good Cause

On June 8 and 9, 2021, Defendant served three demands for independent medical examinations to be performed as follows: (i) by an orthopedic surgeon, Dr. Forman, to examine Plaintiff's alleged injuries relating to his leg, (ii) by a neuropsychiatrist, Dr. Gold, to examine Plaintiff's alleged traumatic brain injury, and (iii) by a physical medicine and rehabilitation specialist, Dr. Kim, to examine Plaintiff's alleged chronic and continuing pain issues resulting from the accident that occurred in 2017. Plaintiff stipulated to the first two examinations, but objected to the third.

Here, good cause exists to compel Plaintiff to undergo a third independent medical examination by Dr. Suzy Kim, who is a pain management specialist, because Plaintiff claims he has chronic pain syndrome, constant nerve pain, and that he has pain every day. As a result, the defense expert, Dr. Kim, should be provided an opportunity to examine Plaintiff to fully prepare her conclusions and opinions on the claims alleged by Plaintiff.

Plaintiff’s argument that he should not be ordered to undergo a pain management independent medical examination because he has not yet sought pain management treatment, is currently not claiming damages for future pain management treatment, and did not designate a pain management expert in this case and “as of this time, does not intend to call a pain management expert at trial” is irrelevant. Plaintiff has alleged he experiences constant pain; Defendant is entitled to assess the nature and extent of these purported damages and to provide testimony on this matter.

Moreover, while Defendant has already performed two medical examinations, neither Dr. Forman nor Dr. Gold are qualified to specifically testify on issues relating to pain management.

Accordingly, the Court finds the facts shown are specific and justify good cause for the requested discovery.

Conclusion

Therefore, Defendant’s motion to compel the third defense medical examination is GRANTED.

Moving party to give notice.