Kenari v. Aladadyan

Filed 9/6/06 Kenari v. Aladadyan CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Edward A. Ferns, Judge. As to the January 21, 2005, order affirmed in part and modified in part. As to the March 24, 2005, order affirmed.

Ourfalian & Ourfalian and Rafi A. Ourfalian for Defendants and Appellants.

Mesriani & Associates, Rodney Mesriani and David L. Tillinger for Plaintiffs and Respondents.

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Appellants Vigen P. Aladadyan (Aladadyan), Wesco Fire Protection (Wesco), and Rafi Ourfalian, Esq. (Ourfalian) appeal from two trial court orders imposing monetary sanctions against them and in favor of respondents Saeed Kenari (Kenari), ATT Fire Protection Corporation (ATT), and Rodney Mesriani, Esq. (Mesriani).

With respect to the trial court's January 21, 2005, order imposing sanctions against appellants in the amount of $6,038.05, we affirm the trial court's order and modify it in part. No more than $4,214, the amount sought by respondents' in their motion to compel and request for sanctions, could have been awarded to respondents. Thus, the trial court's order is reduced to $4,214. With respect to the trial court's March 24, 2005, order reallocating the referee's fees to appellants, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 2003, Kenari and ATT, represented by Mesriani, initiated the instant lawsuit against Wesco and Aladadyan. The complaint averred that Kenari and Aladadyan entered into an oral partnership agreement under which they would conduct business together as Wesco. At some point after the agreement was formed, Aladadyan allegedly engaged in a host of improper conduct, including denying Kenari his share of the Wesco profits. The complaint pled causes of action for breach of contract, fraud, constructive fraud, breach of the implied covenant of good faith and fair dealing, interference with prospective business advantage, breach of fiduciary duty, injunctive relief, and declaratory relief. Aladadyan and Wesco, represented by Ourfalian, denied the allegations, and the matter was set for trial for December 6, 2004.

The First Two Deposition Sessions

On July 28, 2004, respondents attempted to depose Aladadyan. The deposition was not completed, and was continued to August 11, 2004.

At the second session of Aladadyan's deposition, disputes arose between counsel. Ultimately, Aladadyan and Ourfalian declared the deposition over and left.

Motions Regarding Aladadyan's Deposition

As a result of the unsuccessful deposition, the parties filed competing motions. Respondents filed a motion to compel the completion of Aladadyan's deposition. In connection therewith, respondents sought monetary sanctions in the amount of $4,214. Appellants filed a motion for a protective order and appointment of referee. They too sought monetary sanctions.

At the hearing on the motions, over respondents' opposition, the trial court granted, in part, appellants' motion for the appointment of a referee, appointing the Honorable Eli Chernow as the referee to hear and determine any and all discovery motions and disputes related to discovery and to report findings and make recommendations thereon. While it ordered the parties to share the referee's fees equally, it gave the referee the authority to reallocate fees and/or award sanctions. It then took the other discovery motions off calendar and referred them to Judge Chernow.

Hearings with Judge Chernow

On November 18, 2004, the parties were scheduled for a telephonic hearing with Judge Chernow regarding their discovery motions. Prior to the hearing, Judge Chernow sent a tentative decision as to the issue of sanctions to the parties. Unfortunately, the names of the parties were reversed. Upon being apprised of the error, Judge Chernow sent out a letter correcting the tentative decision prior to the hearing. That tentative indicated Judge Chernow's intent to impose sanctions against appellants and in favor of respondents.

During the hearing, Judge Chernow reiterated his tentative decision to impose sanctions against appellants. Ourfalian then requested that the hearing be continued so that it could be conducted with a court reporter present. Judge Chernow agreed, and the matter was continued to November 29, 2004.

At the continued telephonic hearing, Judge Chernow again concluded that sanctions be awarded to respondents and against appellants in the amount of $11,288.05 ($6,038.05 in discovery sanctions based upon what occurred at Aladadyan's deposition and $5,250 for reallocation of referee fees). He reasoned: â€