Case Number: BC628050 Hearing Date: April 20, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

samvel vagarshakian,

Plaintiff,

v.

pepsico, inc., et al.,

Defendants.

Case No.: BC628050

Hearing Date: April 20, 2018

[TENTATIVE] order RE:

plaintiff’s motion to quash defendants’ deposition subpoena for glendale police Officer Andres Rico and FOR PRODUCTION OF documenTs Pertaining to the September 11, 2015 arrest of plaintiff Samvel Vagarshakian

BACKGROUND

This action involves a motor vehicle accident between Plaintiff Samvel Vagarshakian, who was driving Plaintiff Diana Rozenoyer’s vehicle, and a tractor-trailer driven by Defendant Raymond Harry Humecky, which was owned/entrusted by Defendants Pepsico, Inc. and New Bern Transport Corporation (collectively, “Defendants”). The accident occurred on September 11, 2015. The complaint, filed July 27, 2016, alleges causes of action for general negligence and motor vehicle.

The Court first heard this motion on February 23, 2018. At that hearing, the Court ordered that the motion to quash the deposition subpoena of Glendale Police Officer Andres Rico was denied. The Court also denied the parties request for sanctions. However, the Court continued the motion to quash as to the records related to Plaintiff Vagarshakian’s arrest so that Plaintiff could provide evidence to support the arguments made at the hearing. Plaintiff filed a supplemental declaration of counsel on March 19, 2018 related to the requested evidence.

LEGAL STANDARD

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. (CCP §1987.1(a).)

In making an order pursuant to CCP §1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the 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.” (CCP §1987.2(a).)

DISCUSSION

Plaintiff Vagarshakian alleges that at the time of the motor vehicle collision at issue in this case, police arrived at the scene and conducted an investigation. He contends that no citations were made, and no criminal charges were pressed. Co-Plaintiff Diana Rozenoyer owned the vehicle Vagarshakian drove at the time of the collision. After the subject accident, Vagarshakian went to his sister’s home where a domestic, personal dispute arose, and Vagarshakian was subsequently arrested. Vagarshakian argues that the arrest on September 11, 2015 was not related to the accident at issue in this civil action.

In opposition, Defendants cite to evidence that contradicts Plaintiff’s contentions. At her deposition on November 15, 2017, the other plaintiff, Rozenoyer, testified that Vagarshakian was severely injured during the accident and that she took him to her home after the accident and had planned to take him to the hospital subsequently. Upon getting Vagarshakian home, an argument ensued because Rozenoyer, Vagarshakian’s father, and Vagarshakian’s sister wanted him to go to the hospital for treatment for his injuries, but Vagarshakian refused.

At her deposition on November 19, 2017, Vagarshakian’s sister, Lusine Vagarshakian, testified that during an argument at Rozenoyer’s apartment on the date of the subject accident, Rozenoyer, Vagarshakian’s sister and Vagarshakian’s father argued with Vagarshakian, who was refusing to go to the hospital. Lusine testified that she called 911 to summon police assistance in compelling Vagarshakian to go to the hospital.

On the date of the accident, Vagarshakian was arrested for (1) domestic violence, and (2) taking a vehicle without permission (auto theft). Vagarshakian was subsequently convicted of both charges upon entering no contest pleas to both charges.

The Court finds that Defendants have shown that the documents related to Vagarshakian’s September 11, 2015 arrest are reasonably calculated to lead to the discovery of admissible evidence. In light of Rozenoyer’s deposition testimony and Lusine Vagarshakian’s deposition testimony, it is clear that the call to 911 and arrival of police officers to Rozenoyer’s residence on September 11, 2015, which led to Vagarshakian’s arrest, were precipitated by concern on the part of Rozenoyer, Vagarshakian’s father, and Vagarshakian’s sister over Vagarshakian’s injuries from the subject accident. What Rozenoyer, Vagarshakian’s father, Vagarshakian’s sister, and Vagarshakian stated to Officer Rico about the severity of Vagarshakian’s injuries just hours after the accident, as documented in reports of the September 11, 2015 arrest, is highly relevant to the issue of damages. Likewise, Officer Rico’s observations of Vagarshakian’s physical condition and mug shots depicting Vagarshakian within hours of the accident are pertinent to the issue of the extent of Vagarshakian’s injuries and damages.

As Defendants note, the arrest and subsequent conviction of Vagarshakian, on the charge of taking the vehicle without permission are relevant for a further reason. Defendants assert that Vagarshakian has been convicted of unlawfully taking Rozenoyer’s vehicle—the same vehicle involved in the accident at issue in this action. Defendants further assert that Vagarshakian “was not a permissive user of the Rozenoyer vehicle, and therefore not insured at the time of the collision. Being uninsured, he is barred by California law from recovering non-economic damages at trial.” (Def. Opp., at pg. 13.) In his reply, Vagarshakian argues merely that “Defendants have not provided any evidence that the car he allegedly stole even belonged to Plaintiff Dina Rozenoyer.” (Plaintiff’s Reply at p. 3.) However, in neither the moving papers or in the reply did Vagarshakian identify the automobile that he was convicted of unlawfully taking. At the February 23, 2018 hearing on this motion, Vagarshakian’s counsel asserted for the first time that the vehicle that Vagarshakian was convicted of unlawfully taking belonged to Vagarshakian’s sister—not Rozenoyer.

At the February 23, 2018 hearing, Vagarshakian requested additional time to submit evidence to demonstrate that the vehicle that he unlawfully took, which resulted in his conviction for California Vehicle Code 10851, belonged to his sister and was not the vehicle involved in the subject accident. However, Vagarshakian was not able find any such evidence as of March 19, 2018. (Beloryan Supp. Decl., ¶ 5.) Further, Vagarshakian has not produced any subsequent declarations or evidence to show that any records have been located that demonstrate that Vagarshakian stole his sister’s car – not Rozenoyer’s car – on the date of his September 11, 2015 arrest.

Civil Code § 3333.3 states: “In any action for damages based on negligence, a person may not recover any damages if the plaintiff’s injuries were in any way proximately caused by the plaintiff’s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.” Section 3333.4 also states that an uninsured driver may not be able to collect non-economic damages, including compensation for pain and suffering, physical impairment, etc., if the driver of the vehicle “cannot establish his or her financial responsibility” for the vehicle. (Civ. Code § 3333.4, subd. (a)(3).) Vagarshakian’s status as a permissible driver of the vehicle in the subject collision is relevant to determining issues of damages based on the above statutes. Therefore, the Court finds that the documents requested in the subpoena related to the arrest are reasonably calculated to lead to the discovery of admissible evidence.

The Court concludes that the documents related to Plaintiff’s September 11, 2015 arrest are relevant in order to: (1) impeach Vagarshakian’s testimony that he stayed at Rozenoyer’s house after the incident until the third day after the incident; (2) ascertain whether Vagarshakian, Vagarshakian’s father and sister, and Rozenoyer made statements about the collision and Vagarshakian’s injuries to the officer; (3) ascertain the observations of the arresting officer regarding Vagarshakian’s physical and mental condition following the collision; and (4) obtain any “mug shots” of Vagarshakian, which may show any visible injuries to his face or body. Therefore, Plaintiff Vagarshakian’s motion to quash the subpoena is denied.

The parties each request sanctions in connection with bringing the motion and opposing the motion. The requests are denied as the Court finds that there was a good faith dispute between the parties regarding the discovery issues presented here.

Accordingly, Plaintiff’s motion to quash the subpoena is denied.

CONCLUSION AND ORDER

Plaintiff’s motion to quash the subpoena for production of documents related to the arrest on September 11, 2015 is Denied.