Austiaj Limited Partnership, et al. v. Guiv Parineh, et al.		CASE NO. 110CV188848
DATE: 19 September 2014	TIME: 9:00	LINE NUMBER:3

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 September 2014, the motion of Plaintiff Austiaj Limited Partnership to compel the deposition appearance of Defendant Pooroushasb Parineh was argued and submitted.

Defendants did not file formal opposition to the motion.[1]

I.       Statement of Facts.

This lawsuit involves various members of the Parineh family, three trusts established by Mrs. Mah-Khorshid Parineh for the benefit of her grandchildren (“Parineh Trust I, II, and III”), and the Austiaj Limited Partnership (“Plaintiff”), an entity established by the Parineh family to manage its investments, which consist mostly of real property.  In addition to Plaintiff, the other plaintiffs include the grandchildren of Mrs. Mah-Khorshid Parineh, Austiaj Parineh (“Austiaj”), Hormoz Parineh (“Hormoz”) and Khashayar Parineh (“Khashayar”) (collectively “Trustees”), suing in their capacities as trustees of Trusts I, II, and III, respectively.

The defendants include, inter alia, Pooroushasb Parineh (“Pooroushasb”), the father of Trustees and Plaintiff’s former general partner, and Guiv Parineh (“Guiv”), Pooroushasb’s brother, and the former trustee of Trusts I, II, and III from 1992 until 2010.

From March 6, 1992 to September 14, 2010, Guiv served as trustee of the Parineh Family Trust I, II, and III.  As trustee, Guiv had a fiduciary duty to manage the trust for the beneficiaries, Hormoz, Khashayar, and Plaintiff.  Plaintiff alleges that at some point, it had $14 million in funds that should have been distributed amongst its members.  By the terms of Plaintiff’s partnership agreement, 45% of this money was required to be deposited in Trusts I, II, and III.  However, no such deposit ever occurred, leading Trustees to allege that Pooroushasb and Guiv conspired to embezzle the funds that should have been paid into the trust accounts.  Further, Plaintiff alleges that Guiv conspired with Pooroushasb and defendants Myong Suk Shuch (“Myong”) and Erika Shuch (“Erika”) (Pooroushasb’s alleged mistress and her daughter) to further misappropriate over $14 million in Plaintiff’s funds, and that defendants created an entity called BJMBSM LLC (“BJMBSM”), their alleged alter ego, to assist in the embezzlement.

On December 3, 2010, Plaintiff and the Parineh Family Trust I, II, and III filed a complaint against Guiv, Pooroushasb, Myong, Erika, and BJMBSM asserting claims for: (1) Breach of Fiduciary Duty [versus Guiv]; (2) Breach of Fiduciary Duty [versus all defendants]; (3) Conversion [versus Guiv]; (4) Conversion [versus all defendants]; (5) Unjust Enrichment [versus all defendants]; and (6) Accounting [versus all defendants].  On March 2, 2011, the plaintiffs filed a first amended complaint (“FAC”) naming the individual trustees of the Parineh Family Trust I, II, and III as plaintiffs. Otherwise, the allegations of the FAC remain the same as the original complaint.

II.      Discovery Dispute.

On 25 February 2014, Plaintiff served notice of the deposition of Defendant Pooroushasb Parineh for 9 April 2014. After a scheduling issue arose relating to the availability of the prison room where the deposition would be held, On 2 March 2014, Plaintiff renoticed the deposition for 17 April 2014.

On 3 April 2014, Mr. Parineh responded with an objection on the grounds that the deposition would subject him to testimony that would implicate him in his concurrent, and unrelated, criminal matter. On 23 June 2014, after Mr. Parineh did not appear, Plaintiff sent a letter stating that Mr. Parineh must appear and if there was a Fifth Amendment objection, he could assert the privilege for individual questions. Mr. Parineh indicated he would not appear.

On 18 August 2014, Plaintiff filed the instant motion to compel the appearance of Mr. Parineh.

III.     Analysis.

A.         Motion to Compel Deposition Attendance

To compel attendance at a deposition, after a party failed to appear, the moving party must show that the deponent was properly served with a deposition notice. Code Civ. Proc. §2025.280(a). The moving party must then show that the deponent did not appear for the deposition. Code Civ. Proc. §2025.450(a). Finally, the moving party must show that follow-up contact was made. Code Civ. Proc. §2025.450(b)(2); Leko v. Cornerstone Home Inspection (2d Dist. 2001) 86 Cal.App.4th 1109, 1124. While not as formal as a meet-and-confer requirement, the moving party still must make a good-faith attempt to resolve the issue before bringing the matter before the Court. See Code Civ. Proc. §2025.450(b)(2); Leko, supra, 86 Cal.App.4th at 1124; Sears, Roebuck & Co. v. National Un. Fire Ins. Co. (2d Dist. 2005) 131 Cal.App.4th 1342, 1351-52.

                        1.         The Deposition was Properly Noticed

On 25 February 2014, Plaintiff served notice of the deposition of Defendant Pooroushasb Parineh for 9 April 2014. After a scheduling issue arose relating to the availability of the prison room where the deposition would be held, On 2 March 2014, Plaintiff renoticed the deposition for 17 April 2014. The notice was properly served.

On 3 April 2014, Mr. Parineh submitted an objection on the grounds that the deposition would subject him to testimony that would implicate him in his concurrent, and unrelated, criminal matter. Citing the Fifth Amendment, he stated he would not appear for the deposition. On 23 June 2014, after Mr. Parineh did not appear, Plaintiff sent a letter stating that Mr. Parineh must appear and if there was a Fifth Amendment objection, he could assert the privilege for individual questions. The letter also asked whether Mr. Parineh would appear.

Mr. Parineh’s 2 July 2014 response consisted of a 40+ page letter that barely touched on the deposition matter. Mr. Parineh stated that he would need to ask his attorney about his attendance at the deposition, but never responded beyond this.[2] Plaintiff has met its requirements about inquiry into Defendant’s intent to attend a deposition.

2. The Fifth Amendment does not Prevent the Attendance of a Deponent

Defendant’s objection that he cannot be deposed because of the Fifth Amendment is unavailing. The Fifth Amendment prevents the Court from ordering an individual to testify against himself in a criminal matter. U.S. Const. Am. 5. In a criminal matter, the individual has the absolute right not to testify. Evid C. §930; See Alvarez v. Sanchez (1st Dist. 1984) 158 Cal.App.3d 709, 712; Joshua D. v. Superior Ct. (4th Dist. 2007) 157 Cal.App.4th 549, 555. In a civil matter, the Fifth Amendment privilege is qualified in that the holder may be required to either waive the privilege or accept the civil consequences of refusing to testify. In re Marriage of Sachs (2d Dist. 2002) 95 Cal.App.4th 1144, 1155.

While the Fifth Amendment protects against requiring testimony from an individual, it does not protect that individual from attending a deposition where that testimony might occur. See Evid. Code §911; In re Scott (2003) 29 Cal.4th 783, 815 (relating to a habeas corpus proceeding); Joshua D, supra, 157 Cal.App.4th at 555. A blanket objection claiming that all testimony would be subject to the Fifth Amendment privilege requires a showing that all relevant questioning would tend to incriminate the individual. Warford v. Medeiros (1st Dist. 1984) 160 Cal.App.3d 1035, 1044 n.7.

Mr. Parineh has made no showing demonstrating that all relevant questions that Plaintiff might pose would be subject to the Fifth Amendment privilege. His blanket objection is overruled.

Plaintiff’s motion to compel the attendance of Pooroushasb Parineh is GRANTED without prejudice to Mr. Parineh raising Fifth Amendment objections to individual questions. Mr. Parineh will make himself available for deposition within 20 days of the date of service of this order, subject to any scheduling issues for use of the appropriate room at the prison.

III.     Order.

Plaintiff’s motion to compel the attendance of Pooroushasb Parineh is GRANTED without prejudice to Mr. Parineh raising Fifth Amendment objections to individual questions. Mr. Parineh will make himself available for deposition within 20 days of the date of service of this order, subject to any scheduling issues for use of the appropriate room at the prison.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] The Court notes that Mr. Parineh has no attorney of record and has not had one since August 2013.