Case Number: BC599801 Hearing Date: March 20, 2018 Dept: 53

homayoun taeed-kashani , et al.; VS. yahya sadigh , et al.;

BC599801, march 20, 2018

[tentative] order re: DEFENDANTS and cross-complainants yahya sadign and michael sadigh’s (1) motion to compel further responses from plaintiff and cross-defendant farshad kashani and for sanctions; and (2) motion to compel production of documents pursuant to subpoena to non-party dr. ramin farshi and for sanctions

Defendants and Cross-Complainants Yahya Sadigh and Michael Sadigh’s Motion to Compel Further Responses from Plaintiff and Cross-Defendant Farshad Kashani and for Sanctions is GRANTED; monetary sanctions are awarded in the amount of $4,935.00. Defendants and Cross-Complainants Yahya Sadigh and Michael Sadigh’s Motion to Compel Production of Documents Pursuant to Subpoena to Non-Party Dr. Ramin Farshi and for Sanctions is GRANTED IN PART AND DENIED IN PART; monetary sanctions are not awarded.

background

Plaintiffs Homayoun Taeed-Kashani (“Homayoun”) and Farshad Kashani (“Farshad”) (the “Kashanis”) filed this action on November 3, 2015 against Defendants Yahya Sadigh (“Yahya”) and Michael Sadigh (“Michael”) (the “Sadighs”). The operative First Amended Complaint (“FAC”) was filed on October 12, 2016. The FAC alleges that the Sadighs have attempted to oust Homayoun from a jointly-owned corporation N.Y.A., Inc. (“NYA-CA”) The FAC also alleges a general partnership, Santee Enterprises (“Santee”) formed by Homayoun, Yahya, and Homayoun’s father, was never converted to an LLC although proposed at one point. (FAC ¶¶ 45-57) The FAC also alleges Yahya breached an oral agreement wherein the partners of Santee agreed they would jointly manage Santee. (FAC ¶¶59-60.) Relevant for the purposes of the instant matters, Homayoun seeks emotional distress damages on his breach of fiduciary duty cause of action.

On October 13, 2016, the Sadighs filed a cross-complaint against Homayoun, Farshad, Santee, NYA-CA, and New Yorker’s Apparel, Inc. (collectively, “Cross-Defendants”). The operative First Amended Cross-Complaint (“FACC”) was filed on March 23, 2017. Among other things, the FACC seeks a declaration that the parties did convert Santee into an LLC as intended, (FACC ¶¶ 49-50) or, if not, a declaration that the parties entered into an agreement to convert Santee into an LLC (FACC ¶¶ 51-54.) If such a declaration were not appropriate, the FACC seeks a declaration that the operating agreement of the allegedly-formed LLC is consistent with the general partnership agreement in that Yahya has sole and exclusive rights to make managerial decisions on behalf of partnership. (FACC ¶¶ 55-58.)

The Sadighs now move to compel further responses from Farshad to Requests for Admission Nos. 8 and 9 and Form Interrogatory 17.1 (as to Requests for Admission Nos. 8 and 9). The Sadighs also move to compel compliance by third party Dr. Ramin Farshi to a subpoena for production of documents. The Kashanis oppose.

EVIDENTIARY OBJECTIONS

The Court did not consider the Declaration of Yahya Sadigh in making its determination on this motion, so the Court likewise did not consider any of the evidentiary objections to same.

As to the Declaration of David A. Thomas, the Court rules on the evidentiary objections as follows: Nos. 14, 15, 16, 17, 18, 19, 21, 23, and 24 are overruled; Nos. 20 and 22 are sustained.

As to the Declaration of Jack Zakariaie, the Court rules on the evidentiary objections as follows: Nos. 1, 2, 3, 4, and 5 are overruled.

Discussion

A. Motion to Compel Further Responses from Plaintiff and Cross-Defendant Farshad Kashani and for Sanctions

On January 11, 2018, this Court presided over an Informal Discovery Conference (“IDC”) regarding the discovery requests at issue. Following the IDC, and despite meet and confer efforts, the Kashanis failed to provide further responses. (Thomas Decl., ¶¶ 19-20.)

Where responses have been timely filed but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. (Code Civ. Proc. § 2033.290.)

The California Constitution (Cal. Const. art. I, § 1) creates a “zone of privacy” that protects against unwarranted compelled disclosure of private or personal information and extends to a person’s confidential financial affairs as well as to the details of one’s personal life. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.) “In determining whether disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other.” (Ibid.) “The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information.” (Id. at pp. 754-755.)

The “zone of privacy” extends to sexual behavior. (Fults v. Superior Court 904.) However, the sexual privacy right is not absolute, and disclosure may be compelled when justified. (Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) Disclosure is justified when “the sought after disclosure would serve the compelling state interest of the facilitation of truth in legal proceedings.” (Ibid.) An intrusion upon sexual privacy may only be done on the basis of “practical necessity” and “the compelled disclosure [must] be narrowly drawn to assure maximum protection of the constitutional interests at stake.” (Id. at pp. 473-474 [internal citations omitted].) The “zone of privacy” also extends to arrest records or dissemination of information about arrests. (Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1498.)

Here, the two Requests for Admission (Nos. 8 and 9) seek admissions by Farshad that he was arrested for allegedly engaging in lewd behavior in or near a movie theater and that he was charged with a criminal offense or infraction rising from the alleged conduct. The attendant Form Interrogatory (No. 17.1) would require response only if the responses to the two Requests for Admission are unqualified admissions. Farshad objects, inter alia, on the basis of privacy. As an initial matter, the Court notes that Farshad interposes a number of other objections: vague as to time, unduly burdensome, oppressive, harassing, argumentative, call for a legal conclusion, and compound/disjunctive. The Court overrules these other objections as they are not meritorious. The remaining objection, then, is the privacy objection.

Farshad contends that he should not be required to provide a response to the above requests because Yahya has not shown a compelling need. According to Farshad, Yahya can testify to his belief regarding Farshad’s arrest records without the discovery responses at issue. Yahya contends that these discovery responses are necessary to support Yahya’s credibility at trial regarding his cause of action for declaratory relief. At the IDC, the Court indicated its inclination to allow this discovery and to grant a subsequent motion compelling responses. Based on the argument and authority presented here, the Court does not find a reason to deviate from its prior stated position. The requests, though implicating Farshad’s privacy rights, are not overbroad. Unlike the cases cited by Farshad, these requests are not seeking names and personal identifying information about third parties or seeking to delve into Farshad’s sexual history, habits, or practices. (See, e.g., Boler, supra, 201 Cal.App.3d at p. 474; Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) Accordingly, the Farshad’s motion to compel further responses is granted.

As far as the parties’ dispute as to whether counsel for Farshad agreed to waive the need to bring a motion to compel further responses to the discovery request at issue here, the Court finds that there is insufficient evidence of such a waiver. In any event, pursuant to Code of Civil Procedure section 2033.290, subdivision (d), the Court grants Yahya’s request for monetary sanctions, however the amount requested by Yahya is not reasonable for a discovery motion. A more reasonable hourly rate for attorney time would be $250. Per the declaration and supplemental declaration of David A. Thomas, Yahya’s counsel expended 19.5 hours (11 hours on drafting the moving papers; 2.5 hours on preparing the ex parte application to shorten time for notice on this motion; and 7 hours on drafting the reply papers) on this discovery motion. Therefore, the Court awards monetary sanctions in the amount of $4,935.00, which includes the $60 filing fee.

B. Motion to Compel Production of Documents Pursuant to Subpoena to Non-Party Dr. Ramin Farshi and for Sanctions

Code of Civil Procedure section 1987.1(a) provides:

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480(a).) “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc., § 2025.480(i).)

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

The Sadighs served a records-only subpoena on Dr. Ramin Farshi (“Dr. Farshi”) on November 27, 2017. (Thomas Decl., ¶ 5.) Homayoun’s discovery responses to requests seeking information about his medical records had indicated that Dr. Farshi had diagnosed Homayoun with anxiety and prescribed medication to him, including Lexapro and Alprazolam. (Thomas Decl., ¶ 4.) Dr. Farshi had also written a letter that supported Homayoun’s claim of mental anguish. (Thomas Decl., ¶ 4.) However, because the Sadighs were aware that Dr. Farshi and Homayoun were good friends, the Sadighs wanted to conduct additional discovery, in the form of a subpoena directed to Dr. Farshi, to determine the credibility of the evidence of emotional distress. (Motion, p. 3: 4-7.) At issue now are the document requests in Category Nos. 15 and 16. Category No. 15 requests communications of a social or otherwise non-professional nature between Dr. Farshi and Homayoun since January 1, 2017. Category No. 16 requests photographs posted to social media of Dr. Farshi and Homayoun posted by either Dr. Farshi or Homayoun. On December 8, 2017, Dr. Farshi served objections to the subpoena, including objections to Category Nos. 15 and 16. After a series of meet and confer efforts, Dr. Farshi has refused to produce documents responsive to Category Nos. 15 and 16 on the basis that these requests violate his privacy rights. The Court finds that the requests at issue are relevant and do not implicate Dr. Farshi’s constitutionally protected privacy rights. There is no indication that the information requested contains sensitive personal or financial information, or any other types of information that are within the “zone of privacy.” (See SCC Acquisitions, Inc. v. Superior Court (2015) 2413 Cal.App.4th 741, 754.) Therefore, the objections on privacy grounds are overruled.

The Court notes that in addition to the privacy-based objections, Dr. Farshi also objected to the two categories on the basis that they are vague, ambiguous, and overbroad in scope; that the requests are burdensome and oppressive; and that the requests impermissibly seek to discover private medical or other records of Homayoun that are not related to his mental condition. The Court finds that there is merit to the objection that with regard to Category No. 16, the request is overbroad in scope. There is no time limitation to the request for photographs posted to social media, and therefore would include photographs that would not have any bearing to the issues raised in the instant case. The remaining objections are overruled. Accordingly, the Court grants the motion to compel as to Category No. 15 and denies the motion to compel as to Category No. 16. The Court declines to award monetary sanctions as the Court finds that there was substantial justification for Dr. Farshi’s refusal to produce documents responsive to Category No. 16.

conclusion

For the foregoing reasons, the Sadigh’s Motion to Compel Further Responses from Plaintiff and Cross-Defendant Farshad Kashani and for Sanctions is GRANTED; however, monetary sanctions for this motion is awarded only in the amount of $4,935.00. The Kashanis are ordered to provide further verified responses without objections to Requests for Admission Nos. 8 and 9 and Form Interrogatory No. 17.1 within 15 days of this Order. The Kashanis are further ordered to pay $4,935.00 in monetary sanctions to the Sadighs within 30 days of this Order.

The Sadigh’s Motion to Compel Production of Documents Pursuant to Subpoena to Non-Party Dr. Ramin Farshi and for Sanctions is GRANTED IN PART AND DENIED IN PART. Dr. Farshi is ordered to produce responsive documents to Category No. 15 within 20 days of this Order.

The Sadighs are ordered to give notice of this Order.

DATED: March 20, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court