Case Number: BC646744 Hearing Date: March 22, 2018 Dept: 39

Mo Eslami v. Bruce Shafie, et al., BC646744

Plaintiff Mo Eslami’s Motion for a Protective Order for a New Deposition Date and Location: DENIED

The court notes that there is no proof of service for the instant motion on file with the court. Defendant nonetheless did not object, and did file a timely opposition to the motion.

Defendant contends that he has noticed Plaintiff’s deposition on three occasions, most recently for February 22, 2018; this deposition was to take place at Defendant’s office. Plaintiff objected to the February 22, 2018 noticed deposition on February 5 and February 20, 2018, and has asserted that he cannot appear at the noticed place and time. Defendant responded by letter on February 21, 2018, stating that he would be willing to re-schedule the deposition and requesting three dates within the following two weeks. There is no evidence in the record to indicate that Plaintiff responded. Instead, Plaintiff filed the subject motion for a protective order on February 21, 2018.

Plaintiff apparently set an ex parte hearing for February 16, 2018, to obtain a protective order regarding the deposition date and time. Plaintiff did not, however, appear for the scheduled ex parte hearing. Plaintiff now moves the court for a protective order to set a deposition at a neutral location on a date and time to be determined by the court. Defendant opposes the motion.

Meet and Confer

A motion for a protective order under Code of Civil Procedure, section 2025.420 must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.420, subd. (a).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.) Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)

Plaintiff submits the Declaration of Mo Eslami (“Eslami Decl.”) in which he attests that he has tried to discuss relocating and rescheduling the deposition to a different date, but that Defendant has refused his requests. Plaintiff attaches the communications he has sent regarding the deposition as Exhibit 1 to his Declaration. Plaintiff’s deposition was scheduled on February 22, 2018. On February 20, 2018, Plaintiff objected to the noticed deposition and asked Defendant to postpone the deposition date and location. (Eslami Decl. Ex. 1.) Defendant presents evidence that he responded on February 21, 2018, stating that he was willing to reschedule the deposition and requesting that Plaintiff provide three dates within the following two weeks for his deposition. Plaintiff does not appear to have responded to Defendant’s request and instead filed the subject motion for a protective order on that same date, February 21, 2018. Plaintiff’s conduct does not demonstrate a good-faith effort to meet and confer regarding the issue. Accordingly, Plaintiff has not met the statutory meet and confer requirements for the subject motion.

Nevertheless, as the parties appear to be at an impasse, and as Plaintiff appears to object to any deposition on a date before his operative complaint has survived demurrer, the court will address the merits of the motion below.

Motion for a Protective Order

Plaintiff moves for a protective order to reschedule the deposition to another time and another place than the time and place specified in the deposition notice. Plaintiff brings this motion under section 2025.420 of the Code of Civil Procedure, which provides, in relevant part:

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: This protective order may include, but is not limited to, one or more of the following directions:

(2) That the deposition be taken at a different time.

(4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260.

(Code Civ. Proc., § 2025.420, subd. (b)(2), (4).)

Here, Defendant Shafie contends that he has noticed Plaintiff’s deposition on three occasions, most recently on February 22, 2018. (Declaration of Brian D. McMahon (“McMahon Decl.”) Ex. B.) Plaintiff objected to the February 22, 2018 deposition date on February 5 and February 20, 2018, asserting that “[t]he date you have picked for deposition is not suitable for me because of conflicts and my health problems developed because of this case,” and Plaintiff requested Defendant reschedule the deposition for “late April 2018 or early May 2018.” (McMahon Decl. Ex. A; see also id. Ex. E.) In his February 20, 2018 letter, Plaintiff requested Defendant “postpone the deposition date and location till we have a proper Operating Complaint at which time a meaningful discovery can take place.” (Id. at Ex. E, emphasis in original.)

Plaintiff contends that a protective order is warranted, arguing: “Defendant Shafie has made numerous attempt [sic] to fabricate bad acts and attribute them to plaintiff. Shafie constantly aggressively threatens and intimidates plaintiff at each possible event or hearing to drop the case and spouts false and defamatory facts about plaintiff to anyone who is willing to listen to him.” (Mot. 4.) Plaintiff further contends that he has “developed physical illness as well as serve [sic] mental anguish, PTSD, and great distress as a result of defendant’s actions” and that the deposition “is a pretext to further beat up on plaintiff, fabricate more false facts, intimidate and threaten plaintiff some more.” (Ibid., emphasis in original.)

Plaintiff does not demonstrate good cause for a protective order. A defendant is entitled to depose the plaintiff “at any time after that defendant has been served or has appeared in the action,” after proper notice. (Code Civ. Proc., § 2025.210, subd. (a).) Defendant presents evidence that he agreed, on February 21, 2018, to continue the noticed February 22, 2018 deposition and requested that Plaintiff provide him with three dates for the deposition to be rescheduled. (McMahon Decl. Ex. F.) According to Defendant, Plaintiff did not provide any new dates and instead filed the subject motion for a protective order on that same date, February 21, 2018. Plaintiff does not appear to have responded to Defendant’s offer.

Plaintiff appears to object to every date prior to “late April 2018 or early May 2018” or “til [the parties] have a proper Operating Complaint.” (McMahon Decl. Ex. F.) Plaintiff has not presented legal authority support his argument that discovery in this matter, specifically Plaintiff’s deposition, should be stayed until after all demurrers and other challenges to his operative complaint have been overruled or denied. The court is aware of none. (See Code Civ. Proc., § 2025.210, subd. (a).)

Plaintiff’s only evidence regarding the need for a protective order consists of self-serving declarations in which he states that he has “developed physical illnesses, severe mental distress and PTSD as a result of Mr. Shafie’s intimidation tactics, threats and defamation an smear tactic scheme against [him].” (Eslami Decl. ¶ 2; Eslami Reply Decl. ¶ 5.) This evidence is insufficient to demonstrate “good cause” for a protective order with regard to either the date or the location of the deposition, particularly given that there is currently no scheduled deposition to which Plaintiff objects.

For these reasons, the court DENIES Plaintiff’s motion for a protective order.

Monetary Sanctions

Section 2025.420 provides that the court must impose a monetary sanction against “any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).) Defendant seeks monetary sanctions in the amount of $1,600 for the time his counsel incurred in opposing the subject motion. (McMahon Decl. ¶ 3.) McMahon attests to an hourly rate of $400 and to spending 2 hours in preparation of the opposition to the motion. (Ibid.) McMahon further anticipates spending an additional 2 hours to appear at the hearing for this motion. (Ibid.)

The evidence in the record indicates that Plaintiff filed the subject motion on February 21, 2018, which was the same day that Defendant offered to reschedule the deposition and requested Plaintiff offer three dates for a rescheduled deposition. There is currently no scheduled deposition, and Plaintiff’s papers do not address why Plaintiff continues to request the court enter a protective order on this basis and set a deposition date.

The court will entertain oral argument on the issue of monetary sanctions.