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Case Number: BC705610 Hearing Date: September 19, 2019 Dept: 31

MOTION TO COMPEL DEPOSITION IS GRANTED.

Background

This case arises out of allegations that Plaintiff’s predecessor in interest, Rabi Setareh, loaned Defendants $500,000.00 pursuant to a written promissory note which was secured by a Deed of Trust on real property commonly known as the 4600 Block of Klamath Street, Los Angeles, CA 90032. The First Amended Complaint (“FAC”) filed by Plaintiff Kavyan Setareh, as trustee of the Pacific Capital Trust, against Monterey Bay View Estates, LLC; South Bay Contractors, Inc.; Avraham Hassid; Mike Amidnamin; and Does 1 through 25, also alleges Defendants Hassid and Amidnamin executed written personal guarantees for the debt. The FAC alleges Defendants have failed to make the agreed upon payments and misrepresented that they would not sell the Klamath Street property without notifying Rabi Setareh ahead of time so he could protect his lien on the property. Plaintiff named Defendants Hassid and Amidnamin in their individual capacities as well as their capacities as officers for their respective entities, Defendants Monterey Bay View Estates, LLC (“Monterey”) and South Bay Contractors, Inc. (“SBC”). The FAC asserts causes of action for:

Breach of Contract – Promissory Note;

Breach of Contract – Personal Guarantee;

Common Count: Open Book Account;

Common Count: Account Stated;

Money Lent;

Breach of the Implied Covenant of Good Faith and Fair Dealing; and

Fraud.

On May 16, 2018, Plaintiff filed a Request for Dismissal, dismissing without prejudice the 7th cause of action for fraud against Defendants Monterey Bay View Estates, LLC and Avraham Hassid. Plaintiff seeks an order compelling the deposition of Avraham Hassid.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)

Discussion

Plaintiff moves the Court for an order compelling Defendant Hassid, individually and as the designated Person Most Qualified for Defendant Monterey to appear for the completion of his deposition.

Plaintiff argues that she initially noticed Defendants’ deposition for November 12 and 13, 2018. (Siciliano Decl. ¶ 4.) Plaintiff asserts that on January 24, 2019, the combined deposition of Defendants commenced and proceeded for a total time of just under 3 hours. (Siciliano Decl. ¶ 10-11.) On May 1, 2019, session two of the combined deposition of Defendants commenced and proceeded for an additional 5 hours and 1 minute. (Siciliano Decl. ¶ 19, 21.) Plaintiff argues that at the close of session two, Plaintiff attempted to secure a date for the completion of the deposition to no avail. Plaintiff contends that the parties were advised that Defendant Hassid did not keep his calendar with him and would have to get back to Plaintiff, despite the deposition notice requiring the deposition to take place day to day. Plaintiff argue that Defendant Hassid and his counsel refused to return on May 2. (Siciliano Decl. ¶ 22.) Plaintiff asserts that since then, Defendant Hassid has failed to appear on agreed-upon deposition dates. (Siciliano Decl. ¶ 26, 28.)

Plaintiff asserts that all parties agreed that the conclusion of Defendants’ deposition would take place on June 26, 2019. (Siciliano Decl. ¶ 27.) Plaintiff contends that no objections to the deposition were filed or communicated as to this agreed upon date. Plaintiff argues that nevertheless, at 11:16 am on June 25, 2019, less than 24 hours before the deposition was scheduled to commence, counsel for Defendants sent an email refusing to produce Defendant Hassid for his scheduled deposition. (Siciliano Decl. ¶ 28.)

Plaintiff finally asserts that she has attempted to meet and confer with Defendants as required by section 2025.450. Plaintiff attaches the declaration of Nicholas A. Siciliano as an indication of Plaintiff’s counsel’s attempts to informally resolve the issues now before the Court. (Siciliano Decl. ¶ 29.)

Seven Hour Deposition Limit

The Code of Civil Procedure provides in relevant part:

(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(b) This section shall not apply under any of the following circumstances: . . .

(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.

(Code of Civil Procedure § 2025.290(a)-(b).)

In opposition, Defendants argue that Plaintiff has exceeded the seven-hour individual deposition limit in violation of Code of Civil Procedure section 2025.290. Defendants assert that here, the parties have not stipulated to extend the seven-hour time limit. Defendants contend that they are not aware of any authority for the proposition than an individual who agrees to a “combined” deposition that is binding on both a corporate defendant and the individual defendant has waived his right to a seven-hour deposition.

In reply, Plaintiff argues that Defendants provide no calculation as to how Plaintiff exceeded the 7-hour limit. Plaintiff asserts that Defendants agreed to the combined nature of the deposition, in effect, waiving the statutory time limit, and have not offered any evidence to show the Court what amount of testimony should have been designated as solely to Defendant Hassid in his individual capacity as a Defendant. Plaintiff contends that by failing to do so, Defendants cannot demonstrate that Plaintiff somehow exceeded the 7-hour limit for the deposition which also was meant to encompass the PMQ deposition.

The Court finds that Plaintiff has not exceeded the seven-hour individual deposition limit in violation of section 2025.290. As noted above, the seven-hour limit does not apply to any deposition of a person designated as the most qualified person to be deposed under section 2025.230. Here, Defendant Hassid agreed to a deposition in his individual capacity and in his capacity as the person most qualified under section 2025.230. Accordingly, the seven-hour limitation provided by 2025.290 does not apply to Defendant Hassid as the PMQ designee under these circumstances.

Section 2025.450 & Meet and Confer Requirement

Defendants further argue that the section relied upon by Plaintiff as authority for the instant motion are inapposite. Defendants assert that section 2025.450 requires that a proper deposition notice be served in order to bring a motion, but Plaintiff has not provided one for the date he claims the deponent failed to appear – June 26, 2019. Additionally, Defendants assert that Plaintiff has not satisfied the meet and confer requirement.

In reply, Plaintiff argues that the notices served on Defendants for the initial January 24, 2019 deposition date compelled Defendants’ attendance at deposition and required that the depositions continue day to day until completed. (Reply Siciliano Decl., Exh. 20, 21.) Plaintiff asserts that those notices, which require Defendants’ day-to-day attendance, were amended by agreement of the parties on the record to accommodate the schedules of the deponents and counsel. Plaintiff contends that when Defendants unilaterally cancelled the deposition for June 26, 2019 on June 25, they did so in violation of the operative notices as amended by agreement of the parties. Plaintiff argues that by failing to proceed with the depositions, Defendants failed to comply with the duly served notices and an order compelling the deposition is authorized pursuant to section 2025.450.

The Court finds that the deposition notices served on Defendants noticing deposition for January 24, 2019 form the proper basis for the instant motion. The Court further finds that Plaintiff has satisfied the meet and confer requirements of section 2025.450. It is undisputed by the parties that Defendant Hassid has not appeared for deposition despite the properly served notices and agreements of counsel to a firm deposition date.

Based on the foregoing, Plaintiff’s motion to compel the deposition of Defendant Hassid in his individual capacity and in his capacity as the person most knowledgeable for Defendant Monterey is GRANTED.

Sanctions

Plaintiff seeks sanctions against Defendants and their counsel of record in the amount of $6,906.60, consisting of: (a) 7 hours spent meeting and conferring and drafting the instant motion, an anticipated 2 hours drafting a reply brief, and an anticipated 3 hours spent travelling to and from, and attending the hearing on the motion, billed at a rate of $495 per hour; (b) the $61.65 filing fee; (c) a One Legal fee of $9.95; and (d) $895.00 in cancellation fees for the interpreter scheduled for the June 26, 2019 deposition date.

At the time of the filing of this motion, former counsel, Mainak D’Attaray of the Law Office of Mainak D’Attaray was counsel of record. Accordingly, the Court construes the request for sanctions as against Defendants’ counsel of record at the time the motion was filed.

Plaintiff is not entitled to fees for the amount of time spent meeting and conferring prior to the filing of the instant motion. Plaintiff may only recover reasonable attorney fees for the preparation of the motion itself. Further, the Court finds the amount of time allotted to attending and traveling to the hearing is unreasonable. Accordingly, the Court awards reduced sanctions in the amount of $3,936.60 for 3 hours spent preparing the instant motion, 2 hours spent preparing the reply, and 1 hour for the hearing billed at a rate of $495 per hour plus costs in the amount of $966.60.

Conclusion

Based on the foregoing, Plaintiff’s motion to compel completion of deposition of Defendant Hassid, individually and as person most qualified for Defendant Monterey Bay View Estates, LLC is GRANTED. Defendant Hassid is ordered to appear for deposition on October 7, 2019. Defendants Hassid and Monterey and their former counsel of record, Mainak D’Attaray of the Law Office of Mainak D’Attaray, are ordered to pay sanctions to Plaintiff in the amount of $3,936.60 within thirty (30) days.

Moving party to give notice.