Robert A Ferrante vs. Arash Shirdel

Motion to Compel Deposition (Oral or Written)

Cal. Super. - 4th Dist.July 13, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARASH SHIRDEL, ESQ (247754) PACIFIC PREMIER LAW GROUP 200 E. Sandpointe Ave, Ste 500 Santa Ana, CA 92707 949-629-3690 949-313-0995 Ashirdel @pacificpremierlaw.com Attorney for Plaintiff Carlos Padilla III CALIFORNIA SUPERIOR COURT COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER ROBERT A. FERRANTE Plaintiffs, VS. ARASH SHIRDEL, an Individual; LAW OFFICES OF ARASH SHIRDEL, INC. a California Law Corporation d/b/a PACIFIC PREMIER LAW GROUP; and DOES 1-70 Defendants. And All Related Matters N r N r N e N e N e N e N e N e N e N e N e N e N e N N N N N e N N Case No.: 30-2016-00863233 ASSIGNED FOR ALL PURPOSES TO THE Hon. David Chaffee Department C-20 Action Filed: 7/19/2016 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF ROBERT FERRANTE, REQUEST FOR TERMINATING OR ISSUE SANCTIONS; DECLARATION OF ARASH SHIRDEL Hearing Date: December 15, 2017 Hearing Time: 9:30 a.m. Dept: C-20 Trial: January 16, 2018 Reservation No.: 72702199 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 15, 2017 at 9:30 AM, or soon thereafter as the matter may be heard in Department C-20 of the above-entitled court located at 700 Civic Center Drive, West, Santa Ana, CA, Law Offices of Arash Shirdel, Inc. will move this Court for Motionfor Terminating Sanctions 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an order compelling Robert Ferrante’s deposition, in the alternative issuing terminating sanctions against Robert Ferrante for his repeated failures to comply with the discovery act, or in the alternative, issue sanctions in the form of exclusion of Robert Ferrante from providing any testimony. This motion is made pursuant to Cal. Civil Proc. §§2025.450 where Law Office served a Notice of Deposition on Robert Ferrante. However, Robert Ferrante has refused to appear at his deposition. On November 17, 2017, the Court granted issue sanctions against Robert Ferrante for his failure to comply with discovery. This has become a pattern and with trial in this matter set for January 2018,it is impossible to properly prepare without the adequate discovery. As such, Law Office requests that the Court issue terminating sanctions against Robert Ferrante for his repeated failures to comply with discovery. In the alternative, Law Office requests that the Court issue issue sanction and exclude Robert Ferrante as a witness in this matter. This motion is based on this notice of motion and motion, the memorandum of points and authorizes set forth below, the attached declaration of Arash Shirdel, the complete files and recordsin this case and such oral and documentary evidence as may be presented at or before the hearing of this motion. Date: November 17, 2017 PACIFIC PREMIER LAW GROUP /8/Arash Shirdel Arash Shirdel, Esq. attorney for Law Offices Motionfor Terminating Sanctions 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. ROBERT FERRANTE FAILED TO RESPOND TO NOTICE OF DEPOSITION On 10.24.17, Law Offices served a notice of deposition on Robert Ferrante pursuant to Cal. Civ. Proc. §2025.260. With the deposition scheduled for November 16, 2017. Robert Ferrante failed to appear for the deposition, without excuse or justification. II. THIS IS NOT THE FIRST TIME ROBERT FERRANTE HAS REFUSED TO COMPLY WITH DISCOVERY On 7.19.17, Law Office served Form Interrogatories, Set three, upon Robert Ferrante, pursuant to Cal. Civ. Proc. §2030.210. No responses were received by the due date. On 9.29.17, the Court entered an order compelling Robert Ferrante to respond to the discovery within 20 days, by no later than October 19, 2017. On 11.17.17, the Court issued issue sanctions against Robert Ferrante for his failure to comply with the Court’s previous orders. Since Ms. Young’s withdrawal from the case, Robert Ferrante has had a history of refusing to respond to discovery. III. NO MEET AND CONFER NECESSARY NOR REQUIREMENT TO SHOW GOOD CAUSE WHEN RESPONDING PARTY FAILS TO RESPOND There are no requirements that the moving party attempt to informally resolve the discovery dispute, nor a showing of good cause be required. See Cal. Civ. Proc. §§ 2030.290 IV. ITIS EVIDENCE THAT ROBERT FERRANTE HAS NO INTEREST IN PARTICIPATING IN THIS LITIGATION Robert Ferrante has refused to respond to discovery. Robert Ferrante has refused to respond to law and motion in this matter. Robert Ferrante has refused to respond to the Court’s order. The Court can only conclude that he is uninterested in further participating in this litigation. Motionfor Terminating Sanctions 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. MORE SEVERE SANCTIONS ARE WARRANTED HEREIN A. THE COURT SHOULD ISSUE TERMINATING SANCTIONS Pursuant to Cal. Civ. Proc. §2030.450 (g) the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent or the party with whom the deponentis affiliated. Failing to respond to an authorized method of discovery is a misuse of the discovery process; so is disobeying a court order to provide discovery. Cal. Civ. Proc. §2030.290. If a party fails to obey an order compelling responses to discovery, the Court may impose terminating sanctions by rendering a judgment by default against that party. Id.; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4™® 967, 991; see also, Van Sickley v. Gilbert (2011) 196 Cal. App. 41 1495, 1516. A court may properly take into account Robert Ferrante’s repeated acts that thwart discovery and evasive tactics. Housing Authority of the City ofAlameda v. Gomez (1972) 26 Cal. App. 3d 366, 373 (terminating sanctions upheld where “the trial court could justifiably conclude that defendant had no intention of being deposed and would continue to engage in evasive tactics towards that end.”). Much like the Housing Authority case, Robert Ferrante has demonstrated a “willful failure” to respond to authorized discovery mechanisms. As discussed supra, the Court already compelled his responses once, then when Robert Ferrante still refused to respond, the Court issued issue sanctions. Now, Robert Ferrante has also refused to appear at deposition. See also, Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 41 1611, 1619 (affirming terminating sanctions were (1) defendants chose to ignore the many formal and informal attempts to by plaintiffs to secure discovery responses; and (2) defendants failed to comply with the trial court’s order compelling discovery). The trial court holds the inherent power to control the litigation before it and the discretion to dismiss the action for deliberate and egregious misconduct such as that of Robert Ferrante. Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal. App. 4" 736, 762-764. Motionfor Terminating Sanctions 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California discovery law provides for a range of penalties for Robert Ferrante’s misuse of the discovery process.” Cal. Civ. Proc. §2030.290; Cedar-Sinai Medical Center v. Superior Court (1998) 18 Cal. 4" 1, 12. That misuse incudes: e “Failing to respond to or submit to an authorized method of discovery” —1i.e. failing to appear at deposition, as here; e “Making, without substantial justification, and unmeritorious objection to discovery”; and, e “Disobeying a court order to provide discovery” — failing to respond after compelled to do so. Here, the Court has been hesitant to issue monetary sanctions for Robert Ferrante’s failure to respond to discovery requests. As such, Robert Ferrante believes that the Court’s orders do not have any “teeth” and that his compliance with the Court’s orders and prescribed discovery statutes is optional. Robert Ferrante’s failure to respond to the discovery is highly prejudicial to Law Office, in that Law Office wishes to prepare for the trial in this matter, scheduled for January 2018. Without the deposition, Law Office is forced to try the case blindly. Here, trial is set for January 2018, approximately 1-months from the date of this motion. As such,failure to respond to the discovery is highly prejudicial to Law Office. Terminating sanctions are particularly appropriate to avoid permitting a party like Robert Ferrante to benefit for his own stalling tactics. Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4" 262, 270-80. Because the Court cannot issue monetary sanctions (and those limited sanctions it can issue have not been paid), the Court cannot deter Robert Ferrante from further abuse of the discovery process, terminating sanctions are the appropriate remedy here. Here, a striking of Robert Ferrante’s answeris appropriate. See, e.g. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 795, fn. 29; Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal. App. 4™ 285, 297 (finding the trial did not abuse its discretion in imposing terminating sanctions where plaintiff refused to appear at deposition and unilaterally terminated another deposition). Motionfor Terminating Sanctions 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. IN THE ALTERNATIVE, THE COURT SHOULD ORDER ISSUE SANCTIONS In the alternative, the Court should order issue sanctions against Robert Ferrante and order that Robert Ferrante cannottestify at trial in this matter and must be excluded as a witness for his failure to comply with basic discovery. VI. CONCLUSION Law Office hereby requests that the Court issue the appropriate further sanctions for Robert Ferrante’s failure to comply with the Court’s earlier order. Date: November 17, 2017 PACIFIC PREMIER LAW GROUP /8/Arash Shirdel Arash Shirdel, Esq. attorney Motionfor Terminating Sanctions 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ARASH SHIRDEL I, Arash Shirdel declare as follows: I. I am a duly licensed attorney eligible to practice law before all Courts within this jurisdiction. I am a partner at Pacific Premier Law Group, attorney of record for Law Office, the following is within my personal knowledge and if required I could and would competently testify to facts stated herein. 2. On 10.24.17, Law Offices served a notice of deposition on Robert Ferrante pursuant to Cal. Civ. Proc. §2025.450. Attached as Exhibit 1. 3. With the deposition scheduled for November 16, 2017. Robert Ferrante failed to appear for the deposition, without excuse or justification. 4. As the Court is aware, the Court has previously compelled Robert Ferrante to respond to discovery. Furthermore, Robert Ferrante has previously failed to comply with Court orders and on November 17, 2017, the Court issued issue sanctions against him. As such,this is not the first time Robert Ferrante has attempted to skirt his discovery duties. 5. As of the date of this motion, not responses have been received. Furthermore, the limited sanctions awarded have not been paid. I declare under penalty of perjury of the laws of the State of California that the foregoing is true. Executed on November 17, 2017 in Santa Ana, California /s/ Arash Shirdel, Esq. Arash Shirdel, Esq. Motionfor Terminating Sanctions O O 0 N N L n B A W N = N N N N N N D N N N m m e m e m e m e m e m e m e m e d 0 N N O N L n B A W N D = O O X N N N R E W N = O ARASH SHIRDEL, ESQ (247754) PACIFIC PREMIER LAW GROUP 200 E. Sandpointe Ave, Ste 500 Santa Ana, CA 92707 949-629-3690 949-313-0995 Ashirdel @pacificpremierlaw.com Attorney for Plaintiff Carlos Padilla III CALIFORNIA SUPERIOR COURT COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER ROBERT A. FERRANTE Plaintiffs, VS. ARASH SHIRDEL, an Individual; LAW OFFICES OF ARASH SHIRDEL, INC. a California Law Corporation d/b/a PACIFIC PREMIER LAW GROUP; and DOES 1-70 Defendants. And All Related Matters N r N r N e N e N e N e N e N e N e N e N e N e N e N N N e N N N r To: Robert Ferrante Case No.: 30-2016-00863233 ASSIGNED FOR ALL PURPOSES TO THE Hon. David Chaffee Department C-20 Action Filed: 7/19/2016 NOTICE OF DEPOSITION OF ROBERT FERRANTE Date: November 16, 2017 Hearing Time: 10:00 a.m. Location: 200 E. Sandpointe Ave, Ste 500, Santa Ana, CA Trial: January 16, 2018 Notice ofDeposition O O 0 N N L n B A W N = N N N N N N D N N N m m e m e m e m e m e m e m e m e d c o N J A N U n R A W O N D = O O 0 0 N N N R E W I N D = O PLEASE TAKE NOTICEthat Law Office of Arash Shirdel will take the deposition of the Robert Ferrante, pursuant to Cal. Civ. Proc. §2025.260. The deposition will be taken on November 16, 2017 and will continue from day to day thereafter, until concluded. The deposition will commence at 10:00 AM at offices of Law Office at 200 E. Sandpointe Ave, Ste 500, Santa Ana, CA 92707. Law Office will record the testimony at the above-described deposition by stenographic method. Dated 10.24.17 PACIFIC PREMIER LAW GROUP /s/Arash Shirdel Arash Shirdel, Esq. attorney Notice ofDeposition 2. O O 0 N N L n B A W N = N N N N N N D N N N m m e m e m e m e m e m e m e m e d 0 N N O N L n B A W N D = O O X N N N R E W N = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is: 200 E. Sandpointe Ave., Ste. 500, Santa Ana, CA 92707. On October 24, 2017, I served within Notice of Deposition on the Party(ies) in this action. O O (By Mail) 1 caused a true copy of each document, placed in a sealed envelope with postage fully prepaid, to be placed in the United States Mail at Santa Ana, California. 1 am “readily familiar” with this firm’s business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the US Postal Service on the same day. I understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this affidavit. (By Personal Service) 1 delivered each such document by hand to each addressee below. (By Overnight Delivery) I caused a true copy of each document, placed in a sealed envelope with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express or Overnight Express. Iam readily familiar with this firm’s practice for collection and processing of documents for overnight delivery and know that in the ordinary course of business practice the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or Overnight Express or delivered to a courier or driver authorized by Federal Express or Overnight Express to receive documents on the same dateit is placed for collection. (E-mail) — Executed on October 24, 2017 at Santa Ana, California. O (Federal) 1 declare that I am employed in the office of a member of the bar ofthis court at whose direction the service was made. (State) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. /s/ Golnaz Shirdel Golnaz Shirdel Notice ofDeposition O O 0 N N L n B A W N = N N N N N N N N N e m e m e m e m e m p m e m p e c o N I A N U n R A W D = O O O N N N B R A W N = O 250 Fischer Ave, Costa Mesa, CA 92626 Notice ofDeposition 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is: 200 E. Sandpointe Ave, Ste 500, Santa Ana, CA 92707. On 11.17.17, I served within: Motion to for terminating sanctions or in the alternative, issue sanctions on the interested Party(ies) in this action. [X] (By Mail) 1 caused a true copy of each document, placed in a sealed envelope with postage fully prepaid, to be placed in the United States Mail at Santa Ana, California. Iam “readily familiar” with this firm’s business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the US Postal Service on the same day. 1 understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this affidavit. (By Personal Service) 1 delivered each such document by hand to each addressee above. (By Overnight Delivery) 1 caused a true copy of each document, placed in a sealed envelope with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express or Overnight Express. I am readily familiar with this firm’s practice for collection and processing of documents for overnight delivery and know that in the ordinary course of business practice the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or Overnight Express or delivered to a courier or driver authorized by Federal Express or Overnight Express to receive documents on the same date it is placed for collection. Executed on 11.17.17, at Santa Ana, California. [] [X] (Federal) 1 declare that I am employed in the office of a member of bar of this court at whose direction the service was made. (State) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. /s/ Golnaz Shirdel Golnaz Shirdel Motionfor Terminating Sanctions 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Service List Robert Ferrante 250 Fischer Ave, Costa Mesa, CA 92626 Motionfor Terminating Sanctions