Date: 5/11/18

Case No: BC 589353 Trial Date: October 15, 2018

Case Name: Minasvand et al. v. Minasyan

MOTION TO COMPEL DEPOSITION

(CCP § 2025.450(a); 2023.010 et seq.)

Moving Party: Defendant Martin Minasyan

Responding Party: Plaintiff Hamlet Minasvand

RULING:

Defendant’s Motion to Compel Plaintiff’s Attendance at Deposition is GRANTED. Plaintiff Hamlet Minasvand is ordered to appear for deposition and to give testimony on May 25, 2018 at 9:00 a.m. at plaintiff’s attorney’s law offices. Monetary sanctions in the amount of $1,635.00 [$1,635 requested] are awarded against plaintiff Hamlet Minasvand, payable within 30 days. CCP sections 2025.450(c), 2023.010(d) and 2023.030(a).

Sanctions requested in the opposition are DENIED.

Name of Deponent: Hamlet Minasvand

Status of Deponent: Plaintiff (party)

DEPO ATTENDANCE REQUIRED BY:

Formal Notice [Exhibit A1]

RELIEF REQUESTED BY MOVING PARTY:

Order compelling plaintiff Hamlet Minasvand to attend deposition on June 4, 2018

DECLARATION SUPPORTING MOTION:

Executed per CCP §§ 2015.5; CRC 315(a): Ok

Reasonable and good faith attempt to resolve informally: Decl., para. 7, Ex. B

CHRONOLOGY

Date NOTICE OF DEPOSITION served (CCP § 2031(b)): October 12, 2017

Date of Deposition (10 day lapse): November 3, 2017 ok

Date Motion Served: March 20, 2018

FACTUAL BACKGROUND:

Plaintiffs Hamlet Minasvand and Gayane Hadjibekian allege that they were out walking in a public place with their daughter, plaintiff Sophia Brooklyn Minasvand, who was in a stroller, and were also walking with their dog, when defendant Martin Minasyan’s daughter, who was walking a dog in the street, let the dog free, so that it was not on a leash. Plaintiffs allege they were attacked by the subject dog, which also bit Minasvand and injured him, and attacked and injured plaintiff’s dog. It is also alleged that plaintiff Hadjibekian witnessed the attack on her husband and daughter and suffered serious emotional distress and that plaintiff Minasvand witnessed the attack on his wife and daughter and suffered serious emotional distress. Plaintiffs allege that the subject dog has attacked, menaced, bitten other persons before, and that defendant Minasyan was aware of the previous conduct.

ANALYSIS:

CCP section 2025.450 (a) provides that “if after service of a deposition notice, a party to the action… without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it… the party giving the notice may move for an order compelling the deponent’s attendance and testimony…”

In this case, plaintiff was evidently served with five different deposition notices, and three certificates of non-appearance were taken. [See Exs. A1 through A8].

The opposition argues that plaintiff is not entitled to an order compelling the deposition of plaintiff because defendant filed an objection to two of the deposition notices. That objection was that defendant failed to give consideration to accommodating plaintiff’s schedule and his vacation. [Ex. 6, 10]. Evidently, there were no objections served to the most recent deposition notice, so any objections to those notices have been waived. It is hard to comprehend why plaintiff seriously believes that the court would not require him to sit for deposition in this matter.

The opposition also argues that the motion should be denied as untimely. The opposition cites CCP § 2025.450, which does not include any express time limitation on a motion to compel a deposition. The motion accordingly is not denied as untimely.

The opposition also argues that there was a failure to meet and confer in good faith, and that, in any case, since another witness was deposed all day on November 3, 2017, plaintiff’s deposition could not have been conducted that day. It appears quite clear that after five attempts to schedule a deposition, beginning in September of 2016, and with a trial date looming, that defendant reasonably filed this motion to obtain the court’s assistance in procuring necessary evidence to defend this action, and did so after a sending a letter giving a date by which dates should be provided and the court reporter fees reimbursed or a motion would be filed. [Ex. B6]. Plaintiff has made numerous unwarranted excuses for repeatedly refusing to appear for deposition, there appears to have been no payment of the fees, and no reassurance that even offering dates would result in the deposition going forward, and plaintiff is now ordered to appear on a date certain.

The June 4, 2018 date requested by defendant evidently does not work for plaintiff, and the parties are ordered to meet and confer on an acceptable date within a specified time window.

Sanctions

This leaves the issue of sanctions, which are sought by both sides.

Under CCP section 2025.450 (g)(1) “if a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent…unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Section 2023.010 (d) provides that misuse of the discovery process includes failure to submit to an authorized method of discovery. CCP section 2023.030(a) authorizes the imposition of monetary sanctions against a party for misuse of the discovery processes.

The motion is granted. Sanctions are awarded to the moving party, defendant. The opposition has failed to justify the multiple failures to comply with deposition notices, or to establish that meet and confer efforts were insufficient given the history of this dispute, so no sanctions should be awarded to plaintiff.

The sanctions requested by defendant are $1,635, which appear reasonable.