In the Matter of Sark Davidian Jr Living Trust February 4, 2009

Davidian's reference to "responsive documents" is to documents he demanded Ogata produce at deposition, but the details of the source of the demand are murky. Back on April 7, 2026, Davidian's former counsel, Erika Rascon, noticed a deposition of Ogata, for April 29, 2026, which notice included a demand for several categories of documents to be produced at the deposition by Ogata. Rascon, though, then substituted out as Davidian's counsel on April 24, 2026. Immediately prior, Rascon and Chielpegian agreed to postpone Ogata's deposition (as well as then-scheduled depositions of Tarver and Davidian) and to reset Ogata's deposition for May 19, 2026. It bears noting that, around this time, on April 23, 2026, Ogata served several mostly boilerplate objections to the various categories of documents demanded in the April 7th notice.

The May 19th deposition date apparently did not proceed, but, as explained above, by mid-May, the parties were applying ex parte for orders regarding depositions each sought to take. Davidian filed his application on May 13th; Ogata filed hers May 14th. As further indicated, it was later agreed that Ogata's deposition would take place on June 12, 2026, and it did.

The day prior, June 11th, Davidian served an "updated deposition notice" which included a modified set of document demands. Davidian's "updated" notice demanded categories of documents similar to the prior April 7th notice but was substantially more expansive in scope. For example, Davidian's updated notice included 98 discrete requests (compared to 47 in the prior request), and, unlike the prior notice, included demands for "phone records," "Google takeout data," and "location data" (each defined terms in the updated notice).

In meet and confer correspondence subsequent to the June 12th deposition, Chielpegian asserted that Davidian's June 11th updated notice was not timely served. Davidian's current position is that the updated June 11th notice was not intended "to waive or abandon the original April deposition notice and document requests." It is not clear, though, if he asserts that Ogata was required to produce documents encompassed solely by the April 7th notice.

In any event, as indicated, Davidian now moves ex parte to compel Ogata "to produce documents that should have been available for her continued deposition on June 12, 2026, requiring a privilege/withholding log for any documents not produced, and permitting a brief continued deposition after production." Davidian "further requests a preservation order and conditional evidentiary/adverse-inference relief if [Ogata] does not comply with the [requested] production order." Davidian also concomitantly filed another ex parte application "for order shortening time" in which he asks for the same relief requested in the just described application

Davidian, in connection with his requests, references "the Court's June 16, 2026 order reopening ... limited discovery" as a basis for his document demands. That order is the subject of Ogata's ex parte application.

Ogata's Application

Following Davidian's deposition of Ogata, and notwithstanding the orders announced by this court at the May 15, 2026, ex parte hearing and memorialized in the order submitted by Chielpegian and filed on May 19, 2026, Davidian, on June 16, 2026, submitted another proposed order purporting to state the court's announced orders from the May 15th hearing, but which did not conform to those announced orders.

As pertinent here, contrary to the limited scope of permitted additional discovery announced by the court, Davidian's order stated that "[d]iscovery is extended/reopened" for the "purposes" of (1) "production or inspection of original trust instruments/amendments and directly related authentication materials"; (2) "notary-journal or notarization-related records directly tied to the disputed trust amendment(s), pursued through proper legal procedure"; (3) "related document-examiner or expert inspection/report work"; and (4) "discovery motions arising from those subjects." Davidian did not send the draft of the proposed order to Chielpegian for review prior to submission to the court. This court signed and filed Davidian purported proposed order on June 16, 2026. Davidian then served notice of the purported order on Chielpegian.

Ogata now applies to vacate the June 16, 2026 purported order and requests that this court issue an order for Davidian to show cause why he should not be held in contempt, or, alternatively, for sanctions pursuant to Code of Civil Procedure section 128.5.

RULING

The court denies Davidian's ex parte application. This court's order following the May 15, 2026 ex parte hearing in this case, correctly memorialized in the order submitted by Ogata's counsel and filed on May 19, 2026, is that "[d]iscovery in this matter is closed, save and except for the following depositions: (a) Petitioner; (b) Respondent; and (c) Petitioner's expert, James Tarver," and all three of those depositions were required to be completed by June 15, 2026.

Trial was originally set in this matter for February 2, 2026. Though it has been continued, once to June 1, 2026, and again to July 6, 2026, discovery has not been reopened except as stated by the court at the May 15, 2026 hearing. Accordingly, except as to those discovery matters specifically permitted at the May 15, 2026 hearing, the discovery cutoff for non-expert discovery was 30 days before February 2, 2026, and the discovery cutoff for expert discovery was 15 days before February 2, 2026.

The court grants Ogata's request to vacate its June 16, 2026 order for the obvious reason that the order does not conform to the orders announced by this court at the May 15, 2026 ex parte hearings. The court was unaware that Ogata's deposition had already been completed when it signed that order and only intended to memorize the orders of the May 15 th hearing. Having reviewed both its notes and the minute order, the Court did not intend to expand discovery or allow for it to be reopened through an amended deposition notice. The Court's notes and minute order both reflect that discovery is closed except as to the two depositions of the parties and the expert's deposition.

The court declines to issue an order for Davidian to show cause why he should not be held in contempt of court. "Contempts of the authority of the court" are set forth in Code of Civil Procedure section 1209, not cited by Ogata, and not section 128, which is. The court declines to speculate as to whether Davidian's condemnable conduct of submitting a non-conforming proposed order to this court fits one of the categories of contempts defined in section 1209, absent briefing of the relevant points of law by Ogata.

The court further declines to award sanctions under Code of Civil Procedure section 128.5. "A motion for sanctions under this section shall be made separately from other motions or requests" (Sec. 128.5, subd. (f)(1)(A)) and the motion is not made separately here. Additionally, the court notes that Davidian, by way of at least his prior April 7th deposition notice, had demanded documents relevant to the issues in this case. Though the discovery cutoff had passed by then, Ogata's objections did not indicate this point specifically, and, instead, rested on various boilerplate objections. For this additional reason, the court is disinclined to view Davidian's conduct as solely engaged in bad faith and frivolous.

To be clear, though, Davidian absolutely should not have purported to address his discovery dispute with Chielpegian by submitting a non-conforming proposed order to this court.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

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