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ARA JABAGCHOURIAN (SBN 205777)
araSarailaw.corn
LAW OFFICES OF ARA JABAGCHOURIAN, P.C.
1650 S. Amphlett Boulevard, Suite 216 5/2/2022
San Mateo, CA 94402
Telephone: (650) 437-6840
Facsimile: (650) 403-0909
Attorneys for Defendants
Aria Sarbeland, and
Martha Sarbeland
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
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KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602
12 JIMILAH MSALAM, GHASSAN
MSALAM through her G.A.L. Jimilah
13 Msalam, JAMIE MSALAM through his OPPOSITION TO MOTION FOR
PROTECTIVE ORDER REGARDING THE
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G.A.L. Jimilah Msalam, JONATHAN DEPOSITIONS OF PLAINTIFFS JULNAR
MSALAM through his G.A.L. Jimilah MSALAM AND MINOR ANDREW
15 Msalam, ANDREW MSALAM through his MSALAM
G.A.L. Jimilah Msalam
16 Date: May 13, 2022
Plaintiffs, Time: 9:00 a.m.
17 Judge: Honorable Robert D. Foiles
Dept: 21
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19 ARIA SARBELAND, FREDDIE A.
ARELLANO, JR. MARTHA
20 SARBELAND, individually and in his
official capacity, and DOES 1-20
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individually and in their official capacities.
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Defendants.
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara I abagcho arian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
I. INTRODUCTION
Defendant Aria Sarbeland (hereinafter "Sarbeland" or "Defendant") brings forth this
opposition to motion for protective order regarding the depositions of Julnar Msalam and
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Andrew Msalam and is to be read in conjunction with Defendant's motion to compel the
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depositions. Plaintiffs have put forth a motion that is based on nothing more than self-serving
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declarations which are divorced from reality. There was no effort to put forth any objective
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evidence demonstrating either what was actual said, what was actually done, or the context for
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which it all occurred at the deposition itself. In what amounted to an effort to interject a break by
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Plaintiffs'ounsel during a critical time of deposition questioning only having gone for roughly
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40 minutes on the record (verified through the reporter's time on the transcript), when called out
on the tactic, Plaintiffs'ounsel terminated the deposition. Everything that occurred from that
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point on, despite the deposition being terminated, derived from Plaintiffs'ounsel seeking to
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further engage and to recite a false record on the transcript. The interjection was clearly
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designed to throw a life preserver to her client during a critical part of her testimony. Further,
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Plaintiffs'laims of ethical violations are completely devoid of any veracity. Additionally,
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Plaintiffs'roposals on how the depositions should be conducted are made in a vacuum.
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Plaintiffs provide no basis for seeking a protective order for the deposition of Andrew
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Msalam, who has never even appeared for deposition. Plaintiffs'ounsel has simply refused to
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make Andrew available, despite offering him to be deposed after Khalil's deposition was over.
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For the reasons set forth below, Defendant seeks the compulsion of the depositions of Julnar and
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Andrew Msalam.
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II. FACTUALBACKGROUND
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The first amended complaint alleges an over eight (8) year tenancy of a home in San
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Mateo by Plaintiffs beginning in August of 2010, with the home being owned or managed by
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Defendants. The First Amended Complaint alleges six causes of action, including Negligence,
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Premises Liability Breach of the Implied Warranty of Habitability, Breach of the Covenant of
Quiet Enjoyment, Breach of Contract and Violation of Civil Code tj 1608. The FAC alleges a
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara Iabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
I dilapidated home via broken heaters, rodent infestation, mold contamination, and faulty
2 plumbing.
Depositions of Plaintiffs were noticed months ago. Plaintiffs'ounsel delayed providing
4 dates and refused to produce Andrew a deposition because he was a minor. He was 16 and half
5 years old at the time. An informal discovery conference was held on Andrew's deposition on
6 September 24, 2021 and the parties agreed to produce him on the same day as Plaintiffs'ulnar
7 and Khalil, Andrew's parents. (Declaration of Ara Jabagchourian in Support of Motion to
8 Compel Depositions ("Jabagchourian Decl.", $2)
In Julnar Msalam's deposition that started at 10:30 a.m., Plaintiffs'ounsel sought to
10 interject a "break" in less than 45 minutes into the deposition during a critical time of
11 questioningof JulnarMsalam. (Jabagchourian Decl.,$ 3,Exhibit A) Inwhatwasdemonstrated
12 to be an explicit contradiction between the allegations contained in Plaintiffs'omplaint and the
13 Julnar's testimony, the following transpired:
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Q. So your — your testimony is that you — you,
15 you — you, your husband and your children — I'l just
say you and your husband — diligently paid the rent
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each month to defendants in the amount of $ 2500, for the
17 eight years, is that true?
18 A. Not for the eight years, because I said, you
know, we have housing assistant. So we used to pay, you
19 know, like a portion of the housing, they have to pay
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that portion.
Q. Got it. How much did that — did the
government—
ATTORNEY PARMENTER: I want to take a break,
23 please. Can I take a break? I need to take a break.
ATTORNEY JABAGCHOURIAN: Sure. Let me finish
25 this line of questioning.
ATTORNEY PARMENTER: I asked for a break before
you asked your question.
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28 ATTORNEY JABAGCHOURIAN: That's fine, I'm not
Iaw Offices of OPPOSITION TO MOTION FOR PROTECTIYE ORDER REGARDING THE DEPOSITIONS
Ara Iabagcbourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
going off the record yet, ma'm.
ATTORNEY PARMENTER: We are going off the
record because I would like to take a break. So I need
to take a break and—
ATTORNEY JABAGCHOURIAN: You can go ahead and
take a break, ma'm. You go ahead and take a break, but
we'e not going to have you coach your witness.
ATTORNEY PARMENTER: I'm not coaching anyone
and I have a right to take a break.
ATTORNEY JABAGCHOURIAN: When I'm done with my
line of questioning, ma'm.
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ATTORNEY PARMENTER: I'm not going to go
through a line of questioning, as you indicated earlier.
12 ATTORNEY JABAGCHOURIAN: Yeah.
13 ATTORNEY PARMENTER: If the question was not
asked, I can take a break. I need to use the restroom.
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15 ATTORNEY JABAGCHOURIAN: You can go ahead and
leave, ma'm. Ms. — Ms. Msalam—
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ATTORNEY PARMENTER: You will not proceed if
17 you are acting this way. I understand—
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BY ATTORNEY JABAGCHOURIAN:
19 Q. Ms. Msalam, do you need to take a break?
Ms. Msalam, do you need to take a break?
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A. Yes.
21 ATTORNEY PARMENTER: You do not—
BY ATTORNEY JABAGCHOURIAN:
23 Q. Ms. Msalam, did you need to take a break?
A. Yes.
ATTORNEY JABAGCHOURIAN: Let's go ahead and
25 take a break so your attorney can coach you during the
26 time.
Go ahead, we'e off the record.
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ATTORNEY PARMENTER: Okay, just a minute
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Law Ofaces of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara Jabagchourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
please. That is very inappropriate—
ATTORNEY JABAGCHOURIAN: Off the record.
ATTORNEY PARMENTER: — what you are doing
right now.
ATTORNEY JABAGCHOURIAN: Ma'm, you'e
interrupting my deposition, we haven't even gone an
hour.
ATTORNEY PARMENTER: You'e—
ATTORNEY JABAGCHOURIAN: You'e interrupting my
question because your client right now is showing
that—
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(Cross talk between attorneys.)
ATTORNEY PARMENTER: We are going to terminate
12 this deposition. (Emphasis added)
13 ATTORNEY JABAGCHOURIAN: You lost all
credibility here.
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15 ATTORNEY PARMENTER: It's an inappropriate
pattern.
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ATTORNEY JABAGCHOURIAN: There's lies in the
17 complaint that you filed in court.
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ATTORNEY PARMENTER: Just a minute.
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ATTORNEY JABAGCHOURIAN: That are already shown
20 to be lies, ma'm. So you'e now trying to rehabilitate
your client during the break, it's obvious that—
(Jabagchourian Decl., $ 3, Exhibit A (Julnar Msalam Deposition, pp. 41:18-44:17)
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Despite agreeing to take the break when Julnar Msalam wanted to take a break, this was
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not enough when Ms. Parmenter's tactic was exposed. In fact, in the very next deposition taken
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the very same day of Plaintiff Khalii Msalam, Ms. Parmenter implemented the same tactic of
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interjecting into the deposition so she can coach her witness Here is his testimony after the first
break sought by Ms. Parmenter herself, not by her client:
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ATTORNEY PARMENTER: My client needed to make
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law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara lahagchonrian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
some clarification. Make your clarifications, Khalil.
BY ATTORNEY JABAGCHOURIAN:
Q. Just so I got it, sir, you want to make some
clarifications after speaking with your attorney during
the break?
ATTORNEY PARMENTER: Did I say that, Counsel?
ATTORNEY JABAGCHOURIAN: Well, that's what I'm
asking.
Q. Did you seek to make any clarifications after
the break, after speaking with your attorney?
A. I want to make a clarification, yes.
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Q. Got it.
Any other issues? Because there was a lot of I
12 don't recalls. Any other things you want to correct?
13 A. No, this is it.
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ATTORNEY PARMENTER: Khalil, we did have two
15 other things you needed to clarify. (Emphasis added)
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(Jabagchourian Decl., $4, Exhibit B (Khalil Msalam Deposition, pp. 58:12-59:19))
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Plaintiff Andrew Msalam was not produced for deposition. His deposition was to begin
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at 3:30 p.m. Defendants'ounsel was still taking Khalil's deposition and suggested at
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approximately 3:40- 3:45 p.m. that the deposition of Khalil be suspended so the parties can jump
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into Andrew's deposition or take him after the end of Khalil's deposition. (Jabagchourian Decl,
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$4, Exhibit B (Khalil Msalam Deposition pp. 125:14-127:12)) Ms. Parmenter, on the record,
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entertained the idea of taking Andrew after the completion of Khalil. (Ibid.) Khalil made the
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following statement under oath in his deposition:
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25 Q: Is Andrew going to be available this
afternoon or no?
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THE WITNESS: No, sir, Andrew left already to
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work.
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara labagcbourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
ATTORNEY JABAGCHOURIAN: Okay.
Q. What time does Andrew start work?
A. Normally—
ATTORNEY PARMENTER: Counsel, I believe you
asked Counsel.
BY ATTORNEY JABAGCHOURIAN:
Q. 4:00 p.m., sir?
A. Yes.
9 (Jabagchourian DecL, $4, Exhibit B (Khalil Msalam Deposition, p. 156:10-23)) Despite
10 discussing producing Andrew atter Khalil, Andrew went to work his job shift at 4:00 pm. It is
11 not clear if this was Ms. Parmenter's intent the entire time or whether she learned of this fact
12 later. It was clear that Plaintiffs'ounsel was not producing Andrew for deposition. A 3:30 pm
13 start time for a deposition with a 4:00 pm shift start does not provide much time for a deposition.
14 Defendants'ounsel attempted to meet and confer with Plaintiffs'ounsel several times.
15 No additional dates were provided for Julnar or Andrew. (Jabagchourian Decl., $ 5, Exhibit C)
16 Ms. Parmenter sought to recreate a new record, despite what she said at the deposition of Khalil
17 on the record regarding Andrew's availability. (See Jabagchourian Decl, $4, Exhibit B (Khalil
18 Msalam Deposition pp. 125:14-127:12)) An informal discovery conference was held on January
19 4, 2022. (Jabagchourian Decl., $ 5)
20 III. ARGUMENT
21 A. THE ALLEGATION OF ETHICAL VIOLATIONS IS COMPLETELY
22 BASELESS
23 It has become clear that Plaintiffs'ounsel has shifted her approach to this matter from
24 one on the merits to one of baseless allegations. Plaintiffs'ounsel asserts, with no evidentiary
25 support, that Defendant's counsel has violated California Rules of Professional Conduct 3.10.
26 Rule 3.10, subsection (a) fk (b) states:
27 (a) A lawyer shall not threaten to present criminal, administrative, or disciplinary
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Aralabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
charges to obtain an advantage in a civil dispute.
(b) As used in paragraph (a) of this rule, the term "administrative charges" means the
filing or lodging o f a complaint with any governmental organization that may order
or recommend the loss or suspension of a license, or may impose or recommend
the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal
nature but does not include filing charges with an administrative entity required by
law as a condition precedent to maintaining a civil action.
8 (Cal.RuleProf.Conduct 3.10(a) & (b)). Where was such a threat made? When? There is no
9 instance where Defendant's counsel threatened to report Plaintiff or her counsel with any
10 "criminal, administrative or disciplinary charges". These are serious allegations raised by Ms.
11 Parmenter, with no basis in reality. Luckily, there was a certified transcript that recorded the
12 entire dialogue, which has been provided to the Court. I hope the Court brings Ms. Parmenter to
13 task that baseless allegations made to the Court and in the public record regarding another
14 attorney's professional conduct, especially in violation of the ethical rules, is in itself a violation
15 of the duty an attorney has as an officer of the Court.
B. PLAINTIFFS'MORPHOUS REQUEST TO STRIKE THE
17 TRANSCRIPT MAKES NO SENSE
18 Plaintiffs make a vague passing remark about sulking the transcript of Julnar Msalam.
19 First, no notice has been provided as to what is sought to be stricken. Second, Plaintiffs fail to
20 set forth the purpose of the effort. Third, Plaintiff fails to set forth the basis. The request is
21 devoid of any particularity or basis. This unusual request should be denied.
22 C. NO BASIS TO SEEK A PROTECTIVE ORDER FOR ANDREW MSALAM
23 Despite efforts to inquire as to when Andrew would be provided for deposition,
24 Defendant's counsel received no answer from Plaintiffs'ounsel. During the deposition of
25 Khalil, when the issues was raised on whether to break from Khalil's deposition to commence
26 Andrew's deposition, Plaintiffs'ounsel offered to make Andrew available after the deposition
27 of Khalil was finished. (Jabagchourian Decl, $4, Exhibit B (Khalil Msalam Deposition pp.
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tow Offices ot OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Ara iahagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
1 125:14-127:12)) Yet, when it became evident Andrew had gone to work his shift at Roundtable
2 Pizza that started at 4:00 pm, Plaintiffs'ounsel took the position that she had produced all of her
3 clients, including Andrew in an email. (Jabagchourian Decl., Exhibit C) This game of
4 indicating the witness will be produced later, then stating he was available for the original
5 noticed time of 3:30 pm she be noticed and rejected. Andrew's deposition should be reset, again,
6 with the restriction of Plaintiffs'ounsel not interjecting breaks to rehabilitate her client.
D. NO LEGAL CONTENTION QUESTIONS WERE ASKED OF JULNAR
Plaintiffs'ounsel alleges that Defendant's counsel was asking contention questions at
10contention'1
deposition, citing Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. "'Legal
questions [are those] calling upon him to state all facts, list all witnesses and identify all
12 documents that support" the claims made in the pleadings. (Rien, supra, 22 Cal.App. at 1256.)
13 First off, Plaintiffs'llegation that legal contention questions were asked at Julnar's deposition is
14 false. Second, Plaintiffs failed to set forth any such question in the certified transcript where
15 such a question was asked. Third, Plaintiffs fail to do any legal analysis demonstrating Rtfkin's
16 applicability to the facts in this case. Fourth, Plaintiffs'ounsel has the ability to object to an
17 improper question so that this Court can later make a determination. No such objection was
18 raised by Plaintiffs'ounsel during the deposition and it is therefore waived. For these reasons,
19 Plaintiff s claim of improper questions should be denied.
20 E. PROPOSED PROTECTIVE ORDER
21 1. Discovery Referee
22 Plaintiffs'ounsel has approached this litigation with the tactic of financial attrition,
23 seeking to bleed Defendant to settlement submission rather than on the merits of the allegations.
24 This is partially demonstrated through the requests made in this motion. The demand of a
25 discovery referee for this matter makes no financial sense and Defendant does not endorse it.
26 But if Plaintiffs'ounsel is serious about the need for one (doubtful as she allowed Plaintiff
27 Khalil Msalam deposition to go forward without the need of a discovery referee), as long as
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Law otrices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Are Iahagchonrian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
1 Plaintiffs pay for such cost in advance, it will help thwart efforts to coach up her clients during
2 deposition.
2. Written Deposition Questions Are Worthless
Special Interrogatory responses were served on all seven plaintiffs in this case. To no
5 surprise, the responses to the interrogatories did not match many of the oral responses Julnar
6 Msalam gave at her deposition. The tool of cross-examination is the bedrock of truth finding in
7 our judicial system. It not only allows us to see what the truth of the matter is, but also a glimpse
8 of the credibility of the witness who must testify before a jury, without the lawyer doing it for
9 them. A lot is learned from deposition that written responses by lawyers do not provide. If
10 Plaintiffs intend to testify in court, they are subject to testimony by deposition.
3. Court Translator Is Another Attempt To Continue To Raise The Cost Of
12 Litigation
13 This proposed aspect of the protective order has just fallen out of the sky. An Arabic
14 translator? Why? Julnar Msalam has attested under oath that she is fluent in English.
15 (Declaration of Ara Jabagchourian In Support of Opposition to Motion for Protective Order,
16 Exhibit A, Form Interrogatory Responses to 2.9 & 2.10.) The Court has the certified transcript,
17 and there is no mention, let alone a need, for a translator (as can be seen in Julnar's responses to
18 oral questions). Ms. Parmenter did not have an Arabic translator present during Julnar's
19 deposition when she spoke to her on the record.
20 Again, Ms. Parmenter has made her litigation tactic known in this case — she seeks to
21 bleed Defendants into settlement submission by making them spend money on things such as
22 defending baseless motions, baseless requests and respond to baseless allegations. Defendants
23 hope to obtain a trial date soon to put an end to this matter.
24 F. SANCTIONS ARE NOT WARRANTED
25 The violation that truly occurred here is that Plaintiffs'ounsel tried to employ a tactic to
26 rehabilitate a sinkng ship and was called out for doing so. The alleged urgent need to use the
27 restroom was false, as Ms. Parmenter continued to engage, even after she terminated the
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS
Aralabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
I deposition. The basis for which Plaintiffs seek sanctions has been demonstrated to be false, as
2 the certified record does not support any of Plaintiffs'laims. Finally, the idea that Plaintiffs'
counsel spent 10 hours drafting the motion and that her hourly rate is $ 500 per hour should itself
4 be questioned. The approach taken by Plaintiffs'ounsel to shift the focus onto non-merit based
5 elements of this case should be thwarted and Defendant be allowed to prepare his defense for
6 trial.
7 VI. CONCLUSION
Simply put, the depositions of Julnar and Andrew Msalam should be ordered compelled
9 so that Defendant can explore the claims brought against him. Plaintiffs'ounsel's use of
10 interjecting breaks to rehabilitate her clients should be prohibited as well. Efforts by Plaintiffs*
11 counsel to shift the focus of the case away from the merits and trial and to make baseless ethical
12 violation claims should be halted immediately.
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14 Dated: May 2, 2022 LAW OFFICES OF ARA JABAGCHOURIAN, P.C.
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A|LAJABAGCHOURIAN
17 Attorneys for Defendants
Aria Sarbeland and Martha Sarbeland
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Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS 10
Ara labagchouriao, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM
P.C.
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ARA JABAGCHOURIAN (SBN 205777) araSarailaw.corn LAW OFFICES OF ARA JABAGCHOURIAN, P.C. 1650 S. Amphlett Boulevard, Suite 216 5/2/2022 San Mateo, CA 94402 Telephone: (650) 437-6840 Facsimile: (650) 403-0909 Attorneys for Defendants Aria Sarbeland, and Martha Sarbeland SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602 12 JIMILAH MSALAM, GHASSAN MSALAM through her G.A.L. Jimilah 13 Msalam, JAMIE MSALAM through his OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE 14 G.A.L. Jimilah Msalam, JONATHAN DEPOSITIONS OF PLAINTIFFS JULNAR MSALAM through his G.A.L. Jimilah MSALAM AND MINOR ANDREW 15 Msalam, ANDREW MSALAM through his MSALAM G.A.L. Jimilah Msalam 16 Date: May 13, 2022 Plaintiffs, Time: 9:00 a.m. 17 Judge: Honorable Robert D. Foiles Dept: 21 18 19 ARIA SARBELAND, FREDDIE A. ARELLANO, JR. MARTHA 20 SARBELAND, individually and in his official capacity, and DOES 1-20 21 individually and in their official capacities. 22 Defendants. 23 24 25 26 27 28 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara I abagcho arian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. I. INTRODUCTION Defendant Aria Sarbeland (hereinafter "Sarbeland" or "Defendant") brings forth this opposition to motion for protective order regarding the depositions of Julnar Msalam and 4 Andrew Msalam and is to be read in conjunction with Defendant's motion to compel the 5 depositions. Plaintiffs have put forth a motion that is based on nothing more than self-serving 6 declarations which are divorced from reality. There was no effort to put forth any objective 7 evidence demonstrating either what was actual said, what was actually done, or the context for 8 which it all occurred at the deposition itself. In what amounted to an effort to interject a break by 9 Plaintiffs'ounsel during a critical time of deposition questioning only having gone for roughly 10 40 minutes on the record (verified through the reporter's time on the transcript), when called out on the tactic, Plaintiffs'ounsel terminated the deposition. Everything that occurred from that 12 point on, despite the deposition being terminated, derived from Plaintiffs'ounsel seeking to 13 further engage and to recite a false record on the transcript. The interjection was clearly 14 designed to throw a life preserver to her client during a critical part of her testimony. Further, 15 Plaintiffs'laims of ethical violations are completely devoid of any veracity. Additionally, 16 Plaintiffs'roposals on how the depositions should be conducted are made in a vacuum. 17 Plaintiffs provide no basis for seeking a protective order for the deposition of Andrew 18 Msalam, who has never even appeared for deposition. Plaintiffs'ounsel has simply refused to 19 make Andrew available, despite offering him to be deposed after Khalil's deposition was over. 20 For the reasons set forth below, Defendant seeks the compulsion of the depositions of Julnar and 21 Andrew Msalam. 22 II. FACTUALBACKGROUND 23 The first amended complaint alleges an over eight (8) year tenancy of a home in San 24 Mateo by Plaintiffs beginning in August of 2010, with the home being owned or managed by 25 Defendants. The First Amended Complaint alleges six causes of action, including Negligence, 26 Premises Liability Breach of the Implied Warranty of Habitability, Breach of the Covenant of Quiet Enjoyment, Breach of Contract and Violation of Civil Code tj 1608. The FAC alleges a 28 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara Iabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. I dilapidated home via broken heaters, rodent infestation, mold contamination, and faulty 2 plumbing. Depositions of Plaintiffs were noticed months ago. Plaintiffs'ounsel delayed providing 4 dates and refused to produce Andrew a deposition because he was a minor. He was 16 and half 5 years old at the time. An informal discovery conference was held on Andrew's deposition on 6 September 24, 2021 and the parties agreed to produce him on the same day as Plaintiffs'ulnar 7 and Khalil, Andrew's parents. (Declaration of Ara Jabagchourian in Support of Motion to 8 Compel Depositions ("Jabagchourian Decl.", $2) In Julnar Msalam's deposition that started at 10:30 a.m., Plaintiffs'ounsel sought to 10 interject a "break" in less than 45 minutes into the deposition during a critical time of 11 questioningof JulnarMsalam. (Jabagchourian Decl.,$ 3,Exhibit A) Inwhatwasdemonstrated 12 to be an explicit contradiction between the allegations contained in Plaintiffs'omplaint and the 13 Julnar's testimony, the following transpired: 14 Q. So your — your testimony is that you — you, 15 you — you, your husband and your children — I'l just say you and your husband — diligently paid the rent 16 each month to defendants in the amount of $ 2500, for the 17 eight years, is that true? 18 A. Not for the eight years, because I said, you know, we have housing assistant. So we used to pay, you 19 know, like a portion of the housing, they have to pay 20 that portion. Q. Got it. How much did that — did the government— ATTORNEY PARMENTER: I want to take a break, 23 please. Can I take a break? I need to take a break. ATTORNEY JABAGCHOURIAN: Sure. Let me finish 25 this line of questioning. ATTORNEY PARMENTER: I asked for a break before you asked your question. 27 28 ATTORNEY JABAGCHOURIAN: That's fine, I'm not Iaw Offices of OPPOSITION TO MOTION FOR PROTECTIYE ORDER REGARDING THE DEPOSITIONS Ara Iabagcbourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. going off the record yet, ma'm. ATTORNEY PARMENTER: We are going off the record because I would like to take a break. So I need to take a break and— ATTORNEY JABAGCHOURIAN: You can go ahead and take a break, ma'm. You go ahead and take a break, but we'e not going to have you coach your witness. ATTORNEY PARMENTER: I'm not coaching anyone and I have a right to take a break. ATTORNEY JABAGCHOURIAN: When I'm done with my line of questioning, ma'm. 10 ATTORNEY PARMENTER: I'm not going to go through a line of questioning, as you indicated earlier. 12 ATTORNEY JABAGCHOURIAN: Yeah. 13 ATTORNEY PARMENTER: If the question was not asked, I can take a break. I need to use the restroom. 14 15 ATTORNEY JABAGCHOURIAN: You can go ahead and leave, ma'm. Ms. — Ms. Msalam— 16 ATTORNEY PARMENTER: You will not proceed if 17 you are acting this way. I understand— 18 BY ATTORNEY JABAGCHOURIAN: 19 Q. Ms. Msalam, do you need to take a break? Ms. Msalam, do you need to take a break? 20 A. Yes. 21 ATTORNEY PARMENTER: You do not— BY ATTORNEY JABAGCHOURIAN: 23 Q. Ms. Msalam, did you need to take a break? A. Yes. ATTORNEY JABAGCHOURIAN: Let's go ahead and 25 take a break so your attorney can coach you during the 26 time. Go ahead, we'e off the record. 27 ATTORNEY PARMENTER: Okay, just a minute 28 Law Ofaces of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara Jabagchourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. please. That is very inappropriate— ATTORNEY JABAGCHOURIAN: Off the record. ATTORNEY PARMENTER: — what you are doing right now. ATTORNEY JABAGCHOURIAN: Ma'm, you'e interrupting my deposition, we haven't even gone an hour. ATTORNEY PARMENTER: You'e— ATTORNEY JABAGCHOURIAN: You'e interrupting my question because your client right now is showing that— 10 (Cross talk between attorneys.) ATTORNEY PARMENTER: We are going to terminate 12 this deposition. (Emphasis added) 13 ATTORNEY JABAGCHOURIAN: You lost all credibility here. 14 15 ATTORNEY PARMENTER: It's an inappropriate pattern. 16 ATTORNEY JABAGCHOURIAN: There's lies in the 17 complaint that you filed in court. 18 ATTORNEY PARMENTER: Just a minute. 19 ATTORNEY JABAGCHOURIAN: That are already shown 20 to be lies, ma'm. So you'e now trying to rehabilitate your client during the break, it's obvious that— (Jabagchourian Decl., $ 3, Exhibit A (Julnar Msalam Deposition, pp. 41:18-44:17) 22 Despite agreeing to take the break when Julnar Msalam wanted to take a break, this was 23 not enough when Ms. Parmenter's tactic was exposed. In fact, in the very next deposition taken 24 the very same day of Plaintiff Khalii Msalam, Ms. Parmenter implemented the same tactic of 25 interjecting into the deposition so she can coach her witness Here is his testimony after the first break sought by Ms. Parmenter herself, not by her client: 27 ATTORNEY PARMENTER: My client needed to make 28 law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara lahagchonrian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. some clarification. Make your clarifications, Khalil. BY ATTORNEY JABAGCHOURIAN: Q. Just so I got it, sir, you want to make some clarifications after speaking with your attorney during the break? ATTORNEY PARMENTER: Did I say that, Counsel? ATTORNEY JABAGCHOURIAN: Well, that's what I'm asking. Q. Did you seek to make any clarifications after the break, after speaking with your attorney? A. I want to make a clarification, yes. 10 Q. Got it. Any other issues? Because there was a lot of I 12 don't recalls. Any other things you want to correct? 13 A. No, this is it. 14 ATTORNEY PARMENTER: Khalil, we did have two 15 other things you needed to clarify. (Emphasis added) 16 (Jabagchourian Decl., $4, Exhibit B (Khalil Msalam Deposition, pp. 58:12-59:19)) 17 Plaintiff Andrew Msalam was not produced for deposition. His deposition was to begin 18 at 3:30 p.m. Defendants'ounsel was still taking Khalil's deposition and suggested at 19 approximately 3:40- 3:45 p.m. that the deposition of Khalil be suspended so the parties can jump 20 into Andrew's deposition or take him after the end of Khalil's deposition. (Jabagchourian Decl, 21 $4, Exhibit B (Khalil Msalam Deposition pp. 125:14-127:12)) Ms. Parmenter, on the record, 22 entertained the idea of taking Andrew after the completion of Khalil. (Ibid.) Khalil made the 23 following statement under oath in his deposition: 24 25 Q: Is Andrew going to be available this afternoon or no? 26 THE WITNESS: No, sir, Andrew left already to 27 work. 28 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara labagcbourian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. ATTORNEY JABAGCHOURIAN: Okay. Q. What time does Andrew start work? A. Normally— ATTORNEY PARMENTER: Counsel, I believe you asked Counsel. BY ATTORNEY JABAGCHOURIAN: Q. 4:00 p.m., sir? A. Yes. 9 (Jabagchourian DecL, $4, Exhibit B (Khalil Msalam Deposition, p. 156:10-23)) Despite 10 discussing producing Andrew atter Khalil, Andrew went to work his job shift at 4:00 pm. It is 11 not clear if this was Ms. Parmenter's intent the entire time or whether she learned of this fact 12 later. It was clear that Plaintiffs'ounsel was not producing Andrew for deposition. A 3:30 pm 13 start time for a deposition with a 4:00 pm shift start does not provide much time for a deposition. 14 Defendants'ounsel attempted to meet and confer with Plaintiffs'ounsel several times. 15 No additional dates were provided for Julnar or Andrew. (Jabagchourian Decl., $ 5, Exhibit C) 16 Ms. Parmenter sought to recreate a new record, despite what she said at the deposition of Khalil 17 on the record regarding Andrew's availability. (See Jabagchourian Decl, $4, Exhibit B (Khalil 18 Msalam Deposition pp. 125:14-127:12)) An informal discovery conference was held on January 19 4, 2022. (Jabagchourian Decl., $ 5) 20 III. ARGUMENT 21 A. THE ALLEGATION OF ETHICAL VIOLATIONS IS COMPLETELY 22 BASELESS 23 It has become clear that Plaintiffs'ounsel has shifted her approach to this matter from 24 one on the merits to one of baseless allegations. Plaintiffs'ounsel asserts, with no evidentiary 25 support, that Defendant's counsel has violated California Rules of Professional Conduct 3.10. 26 Rule 3.10, subsection (a) fk (b) states: 27 (a) A lawyer shall not threaten to present criminal, administrative, or disciplinary 28 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Aralabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. charges to obtain an advantage in a civil dispute. (b) As used in paragraph (a) of this rule, the term "administrative charges" means the filing or lodging o f a complaint with any governmental organization that may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action. 8 (Cal.RuleProf.Conduct 3.10(a) & (b)). Where was such a threat made? When? There is no 9 instance where Defendant's counsel threatened to report Plaintiff or her counsel with any 10 "criminal, administrative or disciplinary charges". These are serious allegations raised by Ms. 11 Parmenter, with no basis in reality. Luckily, there was a certified transcript that recorded the 12 entire dialogue, which has been provided to the Court. I hope the Court brings Ms. Parmenter to 13 task that baseless allegations made to the Court and in the public record regarding another 14 attorney's professional conduct, especially in violation of the ethical rules, is in itself a violation 15 of the duty an attorney has as an officer of the Court. B. PLAINTIFFS'MORPHOUS REQUEST TO STRIKE THE 17 TRANSCRIPT MAKES NO SENSE 18 Plaintiffs make a vague passing remark about sulking the transcript of Julnar Msalam. 19 First, no notice has been provided as to what is sought to be stricken. Second, Plaintiffs fail to 20 set forth the purpose of the effort. Third, Plaintiff fails to set forth the basis. The request is 21 devoid of any particularity or basis. This unusual request should be denied. 22 C. NO BASIS TO SEEK A PROTECTIVE ORDER FOR ANDREW MSALAM 23 Despite efforts to inquire as to when Andrew would be provided for deposition, 24 Defendant's counsel received no answer from Plaintiffs'ounsel. During the deposition of 25 Khalil, when the issues was raised on whether to break from Khalil's deposition to commence 26 Andrew's deposition, Plaintiffs'ounsel offered to make Andrew available after the deposition 27 of Khalil was finished. (Jabagchourian Decl, $4, Exhibit B (Khalil Msalam Deposition pp. 28 tow Offices ot OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Ara iahagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. 1 125:14-127:12)) Yet, when it became evident Andrew had gone to work his shift at Roundtable 2 Pizza that started at 4:00 pm, Plaintiffs'ounsel took the position that she had produced all of her 3 clients, including Andrew in an email. (Jabagchourian Decl., Exhibit C) This game of 4 indicating the witness will be produced later, then stating he was available for the original 5 noticed time of 3:30 pm she be noticed and rejected. Andrew's deposition should be reset, again, 6 with the restriction of Plaintiffs'ounsel not interjecting breaks to rehabilitate her client. D. NO LEGAL CONTENTION QUESTIONS WERE ASKED OF JULNAR Plaintiffs'ounsel alleges that Defendant's counsel was asking contention questions at 10contention'1 deposition, citing Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. "'Legal questions [are those] calling upon him to state all facts, list all witnesses and identify all 12 documents that support" the claims made in the pleadings. (Rien, supra, 22 Cal.App. at 1256.) 13 First off, Plaintiffs'llegation that legal contention questions were asked at Julnar's deposition is 14 false. Second, Plaintiffs failed to set forth any such question in the certified transcript where 15 such a question was asked. Third, Plaintiffs fail to do any legal analysis demonstrating Rtfkin's 16 applicability to the facts in this case. Fourth, Plaintiffs'ounsel has the ability to object to an 17 improper question so that this Court can later make a determination. No such objection was 18 raised by Plaintiffs'ounsel during the deposition and it is therefore waived. For these reasons, 19 Plaintiff s claim of improper questions should be denied. 20 E. PROPOSED PROTECTIVE ORDER 21 1. Discovery Referee 22 Plaintiffs'ounsel has approached this litigation with the tactic of financial attrition, 23 seeking to bleed Defendant to settlement submission rather than on the merits of the allegations. 24 This is partially demonstrated through the requests made in this motion. The demand of a 25 discovery referee for this matter makes no financial sense and Defendant does not endorse it. 26 But if Plaintiffs'ounsel is serious about the need for one (doubtful as she allowed Plaintiff 27 Khalil Msalam deposition to go forward without the need of a discovery referee), as long as 28 Law otrices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Are Iahagchonrian, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. 1 Plaintiffs pay for such cost in advance, it will help thwart efforts to coach up her clients during 2 deposition. 2. Written Deposition Questions Are Worthless Special Interrogatory responses were served on all seven plaintiffs in this case. To no 5 surprise, the responses to the interrogatories did not match many of the oral responses Julnar 6 Msalam gave at her deposition. The tool of cross-examination is the bedrock of truth finding in 7 our judicial system. It not only allows us to see what the truth of the matter is, but also a glimpse 8 of the credibility of the witness who must testify before a jury, without the lawyer doing it for 9 them. A lot is learned from deposition that written responses by lawyers do not provide. If 10 Plaintiffs intend to testify in court, they are subject to testimony by deposition. 3. Court Translator Is Another Attempt To Continue To Raise The Cost Of 12 Litigation 13 This proposed aspect of the protective order has just fallen out of the sky. An Arabic 14 translator? Why? Julnar Msalam has attested under oath that she is fluent in English. 15 (Declaration of Ara Jabagchourian In Support of Opposition to Motion for Protective Order, 16 Exhibit A, Form Interrogatory Responses to 2.9 & 2.10.) The Court has the certified transcript, 17 and there is no mention, let alone a need, for a translator (as can be seen in Julnar's responses to 18 oral questions). Ms. Parmenter did not have an Arabic translator present during Julnar's 19 deposition when she spoke to her on the record. 20 Again, Ms. Parmenter has made her litigation tactic known in this case — she seeks to 21 bleed Defendants into settlement submission by making them spend money on things such as 22 defending baseless motions, baseless requests and respond to baseless allegations. Defendants 23 hope to obtain a trial date soon to put an end to this matter. 24 F. SANCTIONS ARE NOT WARRANTED 25 The violation that truly occurred here is that Plaintiffs'ounsel tried to employ a tactic to 26 rehabilitate a sinkng ship and was called out for doing so. The alleged urgent need to use the 27 restroom was false, as Ms. Parmenter continued to engage, even after she terminated the 28 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS Aralabagchouriau, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C. I deposition. The basis for which Plaintiffs seek sanctions has been demonstrated to be false, as 2 the certified record does not support any of Plaintiffs'laims. Finally, the idea that Plaintiffs' counsel spent 10 hours drafting the motion and that her hourly rate is $ 500 per hour should itself 4 be questioned. The approach taken by Plaintiffs'ounsel to shift the focus onto non-merit based 5 elements of this case should be thwarted and Defendant be allowed to prepare his defense for 6 trial. 7 VI. CONCLUSION Simply put, the depositions of Julnar and Andrew Msalam should be ordered compelled 9 so that Defendant can explore the claims brought against him. Plaintiffs'ounsel's use of 10 interjecting breaks to rehabilitate her clients should be prohibited as well. Efforts by Plaintiffs* 11 counsel to shift the focus of the case away from the merits and trial and to make baseless ethical 12 violation claims should be halted immediately. 13 14 Dated: May 2, 2022 LAW OFFICES OF ARA JABAGCHOURIAN, P.C. 15 16 A|LAJABAGCHOURIAN 17 Attorneys for Defendants Aria Sarbeland and Martha Sarbeland 18 19 20 21 22 23 24 25 26 27 Law Offices of OPPOSITION TO MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS 10 Ara labagchouriao, OF PLAINTIFFS JULNAR MSALAM AND MINOR ANDREW MSALAM P.C.