Javier Isaac Zavala v. Victor H. Ameri et al

CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Javier Isaac Zavala v. Victor H. Ameri et al 25CV001194

PLAINTIFF JAVIER ISAAC ZAVALA’S MOTION FOR ORDER COMPELLING THE DEPOSITION OF ELLIOT HENDERSON, PH.D. AND REQUEST FOR MONETARY SANCTIONS

TENTATIVE RULING: The motion is DENIED. Specifically, Plaintiff’s request for an order compelling the first deposition of Dr. Henderson is MOOT, Plaintiff’s request for an order compelling a hypothetical second deposition of Dr. Henderson is DENIED WITHOUT PREJUDICE, and Plaintiff’s request for an order compelling compliance with document demands is DENIED. Plaintiff is ordered to pay, within 20 days of entry of order, to Defendants, care of their attorneys of record, sanctions in the amount of $1,050.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PRELIMINARY MATTERS

Plaintiff Javier Isaac Zavala (“Plaintiff”) moves for an order compelling Defendants Victor H. Ameri and Main Street Management Company (“Defendants”) to produce Elliot Henderson, Ph.D. for deposition and to produce the documents requested in Plaintiff’s Notice of Deposition and Request for Production of Documents. Plaintiff further moves, pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), 1 for sanctions in the amount of $4,860.00 against Defendants and Defendants’ Counsel jointly and severally. Plaintiff so moves on the grounds that Defendants’ objection to Plaintiff’s Notice of Deposition is without merit.

B. REQUEST TO COMPEL DR. HENDERSON’S DEPOSITION

Plaintiff concedes in Reply that Defendants agreed, and continue to agree, to produce Dr. Henderson for a deposition as a percipient witness on a mutually agreeable date. As such, Plaintiff’s arguments in support of his right to take Dr. Henderson’s deposition prior to the expert designation date are moot. (See Mem., 7:20-8:12, 8:15-9:19.)

Although the main thrust of Plaintiff’s Motion is that Plaintiff has a right to depose Dr. Henderson prior to expert designations, in Reply, Plaintiff clarifies that the disputed issue is actually Defendants’ assertion that, because Plaintiff is electing to depose Dr. Henderson prior to expert designations, Defendants will object to Dr. Henderson’s second deposition, if any is 1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

noticed, after expert designations are exchanged, unless Dr. Henderson has formed new opinions after reviewing additional records between the first deposition and expert deposition. (See Declaration of Parham Nikfarjam (“Nikfarjam Decl.”), ¶¶ 5, 7, Exhs. 3, 5.)

Plaintiff’s Motion on the disputed issue, as clarified in Reply, fails for the foregoing reasons.

First, Plaintiff fails to provide or discuss any authority for a motion to compel a nonparty’s deposition. (See, e.g., § 1987.1.)

Second, the issue of the propriety of Defendants’ anticipatory objection to Dr. Henderson’s unnoticed second deposition depending on several hypothetical factors, including whether Plaintiff proceeds with this first deposition and whether Defendant designates Dr. Henderson as an expert, is not ripe. As Plaintiff acknowledges, “[t]here is no guarantee that Defendant will even designate Dr. Henderson as an expert....” (Mem., 9:2-3.) If Defendants do not, the entire basis for Plaintiff’s argument that he is entitled to a second deposition will never arise. Even if Defendants eventually do designate Dr. Henderson as an expert, Dr. Henderson’s first deposition has not been conducted and there is no outstanding notice for his second deposition, to which any objections have been asserted. Therefore, Plaintiff is impermissibly seeking an advisory opinion by way of this Motion.

Third, Plaintiff’s argument in Reply that Defendants have conceded the disputed issue is inaccurate. Specifically, Plaintiff argues that Defendants failed to address the interplay between sections 2025.210 (percipient witness depositions) and 2034.210 (expert depositions) and have therefore conceded that a deposition under 2025.210 does not bar a deposition of the same person under 2034.210. (Reply, 2:10-17, 5:15-28.) However, as noted, the Court does not find that Plaintiff clearly raised that issue in his Motion; rather, Plaintiff’s moving papers primarily address Plaintiff’s right to take Dr.

Henderson’s deposition prior to expert designations, which was never in dispute. Only in cursory fashion do Plaintiff’s moving papers contend that “[n]othing in the Code of Civil Procedure states that Plaintiff must give up the right to take expert depositions if they choose to depose a witness[—who is later designated as an expert—] under CCP Section 2025.210 et seq.” (Mem., 8:12-14; see also id., 7:23-26.)

Fourth, in support of their anticipatory objection to Dr. Henderson’s second deposition, Defendants rely on section 2025.610. (Opposition, 4:21-5:16.) Section 2025.610 provides that, subject to two express exceptions having no apparent relevance here, “[o]nce any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (§ 2025.610, subd. (a).) “Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Id., subd. (b).)

Notably, Plaintiff’s moving papers do not cite to or discuss section 2025.610. Plaintiff does not acknowledge section 2025.610 until Reply. In Reply, Plaintiff argues that section 2025.610 does not apply to expert depositions under section 2034.410 because the express

language in section 2025.610 is limited to deposition notices that are served pursuant to section 2025.240.

Neither party cites caselaw in support of their respective positions. Given the lack of ripeness of the disputed issue, the Court does not find that section 2025.610 bars Plaintiff’s right to take Dr. Henderson’s second deposition. However, the Court comments that Plaintiff, as the party seeking the Court’s intervention here, has failed to persuasively address the issue.

First, contrary to Plaintiff’s assertion that section 2025.610 only bars subsequent depositions that are noticed under section 2025.240, section 2025.610 seems to state that, once a natural person’s deposition has been taken pursuant to a deposition notice under section 2025.240, a subsequent deposition of that natural person (regardless of the statute upon which the subsequent deposition is noticed) may not be conducted unless good cause is shown. In applying that here, if Plaintiff proceeds with Dr.

Henderson’s deposition under section 2025.210, a subsequent deposition of Dr. Henderson may not be conducted unless good cause is shown. Second, Plaintiff’s assertion that section 2025.610 has no applicability to section 2034.410 ignores Defendants’ contention that section 2034.410 expressly incorporates “[t]he procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010) ... [to] apply to a deposition of a listed trial expert witness except as provided in this article.”

Based on the foregoing, Plaintiff’s request for an order compelling the first deposition of Dr. Henderson is MOOT and Plaintiff’s request for an order compelling a hypothetical second deposition of Dr. Henderson is DENIED WITHOUT PREJUDICE as the issue is not properly before the Court.

C. REQUEST TO COMPEL DR. HENDERSON’S COMPLIANCE WITH DOCUMENT DEMANDS

Plaintiff requests an order compelling compliance with the Document Demands accompanying the Notice of Deposition. (See Mem., 9:24-10:15.) Plaintiff fails to assert or show that any objections were raised thereto, necessitating such an order. Even assuming arguendo that objections were raised, Plaintiff has failed to meet his burden for motion for such an order. (Calcor Space Facility, Inc. v. Sup.Ct. (Thiem Indus., Inc.) (1997) 53 Cal.App.4th 216, 223-24 [holding that a moving party’s requirement to set forth specific facts showing good cause justifying discovery sought applies to document demands to non-parties].) Moreover, Plaintiff does not address this request in Reply.

Based on the foregoing, Plaintiff’s request for an order compelling compliance with document demands is DENIED.

D. SANCTIONS

Based on the foregoing, Plaintiff’s request for sanctions is DENIED.

Defendants request sanctions pursuant to sections 2023.010, subdivisions (i), (h), 2023.020, and 2023.030, subdivision (a), on the grounds that Plaintiff failed to properly meet and confer and brought the present motion without substantial justification. The Court does not find that Plaintiff failed to properly meet and confer. However, for all the reasons discussed above— namely, the main purpose of the Motion seeking an advisory opinion on an unripe issue and Plaintiff’s failure to meaningfully address the issue—the Court finds that Plaintiff brought the present motion without substantial justification.

Thus, Defendants’ request for sanctions is GRANTED IN PART. The Court finds Defendants’ counsel’s hourly rate and time spent opposing the motion reasonable. (See Declaration of Akhila Ganapathy, ¶ 9.) However, the Court does not grant sanctions for anticipated time. (Ibid.) Thus, Plaintiff is ordered to pay, within 20 days of Notice of Entry of Order, to Defendants, care of their attorneys of record, sanctions in the amount of $1,050 [=$210 / hr x 5 hrs].

Angelica Hernandez v. Estate of Jack Malan et al 25CV002200

SPECIAL APPEARANCE OF DEFENDANTS: MOTION TO QUASH SERVICE OF SUMMONS

TENTATIVE RULING: The motion is MOOT.

Specially appearing Defendant Chris Malan (“Defendant”) previously filed a motion to quash service of summons, directed at service on her in the capacity as an individual, successor in interest to Jack Malan, and as successor trustee of the Malan Family Trust on May 11, 2026, as evidenced by the Proofs of Service filed May 18 and 26, 2026. On June 18, 2026, Defendant’s motion was DENIED. The present Motion to Quash is directed at service on her on June 14, 2026, as evidenced by the Proof of Service filed July 16, 2026. However, no such service on June 14 was necessary in light of the Court’s June 18 Order, which was mailed to the parties on July 29, 2026. Therefore, the present Motion directed at such unnecessary service is MOOT.

Lee Bycel et al v. Francisco Ruiz 26CV001394

VERIFIED PETITION TO RELEASE PROPERTY FROM MECHANICS LIEN

APPEARANCE REQUIRED

Lee Bycel and Judy Bycel (collectively, “Petitioners”) petition, pursuant to Civil Code section 8460 et seq., for an order releasing a mechanic’s lien recorded on the real property located at 860 Acorn Way, Napa, CA, 94558 (“Property”) by respondents/lien claimants Francisco Ruiz (“Claimant”). Petitioners also request an award of attorneys’ fees and costs against Claimant in the sum of $5,250.00.

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