Judge: Anne Richardson, Case: 20STCV13703, Date: 2023-09-19 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV13703    Hearing Date: January 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Danny Bakewell, Sr. sues Defendants OneUnited Bank (the Bank), Kevin Cohee (Chairman and CEO of the Bank), and Does 1 to 20 pursuant to an April 15, 2020 First Amended Complaint alleging claims of (1) Breach of Contract, (2) Fraud and Deceit, (3) Declaratory Relief, (4) Unfair Competition, (5) Breach of Fiduciary Duty, and (6) Fraudulent Sale of Securities.

The claims arise from allegations that Defendant Cohee induced Plaintiff Bakewell into subscribing to $250,000 of OneUnited Bank Preferred Stock by making alleged false representations to Bakewell to the effect that Bakewell would be able to redeem his $250,000 in Preferred Stock, plus corresponding dividends, upon request, only for OneUnited Bank to deny such a request by Bakewell in December 2019.

On or around August 19, 2022, non-party Sidney Williams was personally served with a deposition notice and subpoena from Plaintiff Bakewell, with the deposition set for September 16, 2022. Williams is the spouse of Representative Maxine Waters, an individual who has since been deposed in connection with this litigation, specifically with regard to her past redemption of OneUnited Bank shares for a profit.

On September 13, 2022, Williams objected to the deposition through counsel. The September 16, 2022 deposition did not move forward.

On September 19, 2023, Williams was personally served with a further deposition notice and subpoena from Plaintiff Bakewell, with a deposition set for October 5, 2023.

On October 2, 2023, Williams served objections to the deposition notice and subpoena.

On October 3, 2023, Plaintiff Bakewell’s counsel informed Williams’ counsel that based on Williams’ nonappearance, Plaintiff would be sending a meet and confer letter prior to filing a motion to compel Williams’ deposition and production.

Williams failed to appear for the October 5, 2023 deposition.

On October 24, 2023, Plaintiff Bakewell’s counsel advised Williams’ counsel of the substance of this motion.

On November 1, 2023, Plaintiff Bakewell moved to compel deposition testimony and production from Williams.

Later that day, Williams’ counsel emailed Plaintiff Bakewell’s counsel, arguing that an insufficient meet and confer had occurred and encouraging Plaintiff to withdraw his motion.

On November 2, 2023, Plaintiff Bakewell’s counsel’s office emailed Williams’ counsel indicating that Plaintiff would not withdraw the motion but agreed to continue the hearing date of the motion to compel to permit further meet and confer.

On November 13, 2023, Plaintiff Bakewell’s counsel’s office emailed Williams’ counsel to indicate that Plaintiff’s position remained the same as outlined in his motion and that, based on Williams’ counsel’s November 1, 2023 position, further meet and confer would not be fruitful.

On January 3, 2024, Williams opposed the motion.

That same day, Defendants OneUnited Bank and Cohee filed a joinder to the opposition.

On January 8, 2024, Plaintiff Bakewell replied to the opposition.

Plaintiff Bakewell’s motion is now before the Court.

Motion to Compel Deposition Attendance and Production

I.

Timeliness

Based on a hearing date of January 16, 2023, and manner of service aside, Plaintiff’s opposition was due on January 2, 2024. (Code Civ. Proc., § 1005, subd. (b).) The opposition was filed a day late, as explained by Sidney Williams’ counsel. (1/3/24 Late Filing Decl.) The reply fails to address the timeliness of the opposition. The Court thus considers the matter waived. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; see also Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.)

II.

Legal Standard

If, [1] after service of a deposition notice, [2] a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, [3] without having served a valid objection under Section 2025.410, [4] fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, [5] the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a) [Arabic numerals added for clarity].)

Although Code of Civil Procedure section 2025.450 does not apply to nonparties and section 2025.480 does not address attendance, courts regularly consider and grant motions to compel nonparties to attend depositions. (See, e.g., Terry v. SLICO (2009) 175 Cal.App.4th 352, 355 (Terry) [court considered motion to compel nonparty to attend deposition]; Sears, Roebuck, & Co. v. National Un. Fire Ins. (2005) 131 Cal.App.4th 1342, 1351 (Sears) [court held that subpoenaing party can move to compel when nonparty deponent does not appear or produce documents at deposition]; Brun v. Bailey (1994) 27 Cal.App.4th 641, 645-646 [Brun] [court considered motion to compel nonparty to attend deposition].)

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

The motion shall also be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the proposed deponent made some response to the deposition notice, then a separate statement must accompany any motion to compel deposition attendance or production. (See Cal. Rules of Court, rule 3.1345, subd. (a), (b)(1).)

III.

Order Compelling Deposition(s): GRANTED.

A. Cal. Rules of Court, rule 3.1345, subd. (a) [Separate Statement]

Here, Plaintiff Bakewell has properly filed a separate statement, thus satisfying the Rule of Court. (Mot., Separate Statement; see Cal. Rules of Court, rule 3.1345, subd. (b)(1).)

In the opposition, Sidney Williams argues that “Plaintiff’s Separate Statement fails to include the definitions in his subpoena which are necessary to understand each discovery request and the corresponding objection.” (Opp’n, pp. 4-5.)

The Court disagrees. The separate statement contains the contents required by California Rules of Court, rule 3.1345, subdivisions (c)-(c)(6). (See Mot., Separate Statement, pp. 2-28; see Cal. Rules of Court, rule 3.1345, subd. (c)(4) [“If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it,” emphasis added].)

Moreover, as to the meaning of the word “You,” the meaning is clear from the subpoena and from the context of the separate statement itself to generally mean either Sidney Williams or a person authorized to act on his behalf.

B. Code Civ. Proc., § 2025.450, subd. (b)(2) [Meet and Confer]

The Court determines that adequate meet and confer or follow up communications by Plaintiff through counsel preceded Plaintiff’s filing of this motion, thus satisfying the Code. (Mot., Ivie Decl., ¶¶ 1-3, 7; Opp’n, Chao Decl., ¶¶ 8-14, Ex. 8; see Code Civ. Proc., § 2025.450, subd. (b)(2).)

In the opposition, Sidney Williams challenges the meet and confer efforts. (Opp’n, pp. 12-13.) The Court finds no merit to these arguments. The record sufficiently shows that the parties conferred about the substance of this motion and did not come to an agreement regarding production of and by Williams. (Mot., Ivie Decl., ¶¶ 1-3, 7; Opp’n, Chao Decl., ¶¶ 8-14, Ex. 8, Oct. 24, 2023 Letter.)

C. Code Civ. Proc., § 2025.450, subd. (a)(1) [Merits]

Here, Plaintiff Bakewell has shown that (1) he served Sidney Williams, (2) a non-party, (3) with a deposition subpoena for attendance and production on October 5, 2023, which Williams failed to attend, and in response to which Williams failed to produce any documents. (Mot., Ivie Decl., ¶¶ 1-3, Ex. A.)

The fact that Sidney Williams is not a party to this action does not deprive this Court of the authority to rule on this motion. (See Terry, 175 Cal.App.4th at p. 355; Sears, supra, 131 Cal.App.4th at p. 1351; Brun, supra, 27 Cal.App.4th at pp. 645-646.)

The deposition subpoena at issue contains 11 production requests and no plainly stated matters of examination. (See Mot., Ivie Decl., Ex. A.)

Williams has objected to the deposition subpoena on various grounds. Williams generally objects to the subpoena on the ground that Code of Civil Procedure section 2025.480 sets a 60-day timeline to move for the requested relief, with the deadline passing here prior to Plaintiff filing this motion. Williams also generally argues that the subpoena contains improper definitions and that the subpoena is harassing insofar as it seeks the confidential and financial information of a third party that is not relevant to this action. Williams more specifically objects on grounds of overbreadth and impropriety as to defining “you,” lack of relevance, overbreadth in time and scope, constitutional right to privacy, right to protection of confidential information, attorney-client privilege, work product privilege, marital communications privilege, and/or lack of particularization pursuant to Code of Civil Procedure section 2020.510, subdivision (a)(2). (See Mot., Ivie Decl., Ex. B.)

In his motion, Plaintiff Bakewell argues that Williams was properly served with a deposition and wrongfully failed to appear for the deposition or produce documents, instead providing only meritless objections. Plaintiff also argues in essence that section 2025.480 is not applicable because this motion was brought pursuant to section 2025.450. Plaintiff adds that Williams has discoverable knowledge of transactions between Maxine Waters and OneUnited Bank. Plaintiff otherwise argues that good cause for production exists here because the deposition “relate[s] to [Maxine Waters’] stock certificates, stock purchase agreements, and board resolutions regarding the stock issued to … Waters, which … Williams was a signatory on the purchase agreement, by Defendants,” and because “these documents will reveal that Defendants contentions that Ms. Waters’ stock was not redeemed and that the bank has never redeemed the stock of a shareholder are false.” (Mot., pp. 5-8.)

Plaintiff Bakewell’s separate statement responds to the substance of Sidney Williams’ objections. The separate statement explains that “Mr. Williams is a former director of OneUnited and a signatory to a purchase agreement of stock purchases by Ms. Waters.” (See Mot., Separate Statement, pp. 2-28 [quote a page 5, § Issue in Dispute].)

In opposition, Sidney Williams argues that the Court lacks jurisdiction over Williams because he was electronically served with this motion rather than personally served as required by California Rules of Court, rule 3.1346. Williams adds, in addition to other arguments, that the 60-day rule in Code of Civil Procedure section 2025.480 makes this motion untimely because the motion should have been filed within 60 days of the objections to the 2022 deposition subpoena served on Sidney Williams. Williams also argues that Williams’ objections to the deposition subpoena are meritorious and that Plaintiff harassed Representative Waters at her deposition. (Opp’n, pp. 5-12.)

No opposing separate statement was filed by Sidney Williams, and is not required under the California Rules of Court, rule 3.1345.

In reply, Plaintiff Bakewell argues that his motion has merit and should be granted, that the separate statement is proper and need only include definitions when necessary to understand the context of the request, and that the motion was properly and timely served on Williams, particularly where rule 3.1346 only applies to motions to compel answers at a deposition, i.e., motions to compel further, not initial, deposition answers and/or production. Plaintiff concludes by arguing in support of his meet and confer efforts. (Reply, pp. 2-5.)

The Court finds in favor of Plaintiff Bakewell.

The sought-after discovery is relevant. Plaintiff Bakewell sues OneUnited Bank and its CEO, Kevin Cohee, based, in part, on allegations that Plaintiff Bakewell was induced to purchase stocks in OneUnited Bank based on promises from Defendant Cohee guaranteeing Plaintiff’s ability to redeem his shares at any time upon request, a promise on which OneUnited Bank and Cohee have reneged. (See FAC, ¶¶ 6, 9, 12-14, 19, 23, 29-30, 31-32.) Plaintiff argues that “Defendants [have] conten[ded] [in discovery] that Ms. Waters’ stock was not redeemed and that the bank has never redeemed the stock of a shareholder.” (Mot., p. 7.) On September 5, 2023, however, Plaintiff deposed Representative Maxine Waters for the purpose of obtaining testimony relating to whether OneUnited Bank had permitted Waters to redeem her shares in OneUnited Bank, which OneUnited Bank allowed, with a net profit of $100,000 despite no increase in valuation in the shares. (Mot., Ivie Decl., ¶ 4.) The deposition subpoena and its production requests here relate to questions of whether Sidney Williams owned stock in OneUnited Bank and whether he was able to redeem those stocks, including tangential communications with Kevin Cohee. (See Mot., Ivie Decl., Ex. A.)

Within this context, Williams’ testimony is relevant to whether Defendants made misrepresentations to Plaintiff regarding whether other OneUnited Bank shareholders were permitted to redeem their shares. Such information could also be conceivably relevant to whether Defendants’ conduct shows a breach of oral contract with Plaintiff through conduct showing Plaintiff was denied contractual relief afforded to other shareholders in similar circumstances.

Section 2025.480, its 60-day requirement, and any arguments related thereto are not applicable because, as correctly noted by Plaintiff, section 2025.480 is not the basis for Plaintiff’s motion. Section 2025.480 involves compelling further deposition answers and/or production following a deposition, not compelling an initial deposition after nonresponse or objections. The latter circumstances involve section 2025.450, which establishes other requirements for moving to compel a deposition and/or production. (See Mot., p. 4 [legal standard for this motion based on section 2025.450]; but see Mot., pp. 1-2 [no specific statutory section specified but compelling initial attendance implied].)

While Williams argues that he was improperly served with this motion because service was effected via email and not personal service, in violation of California Rules of Court, rule 3.1346 (Opp’n, pp. 4-5), rule 3.1346 applies to motions compelling deposition answers or production after a deposition has taken place, not motions to compel initial attendance and production. (See Cal. Rules of Court, rule 3.1347 [previously Rule 337, which specified that “[t]he proponent of a motion for an order compelling an answer to a question propounded at a deposition shall lodge with the court the original transcript of the deposition not less than five calendar days before the date set for hearing the motion, emphasis added]; see also Reply, pp. 3-4 [making this argument].)

The Court also finds that the objections to the subpoena do not contain sufficient merit.

Relevance has been discussed above.

The Court adopts that discussion to determine that the overbreadth in time and scope objection is also not meritorious because the entire stock history and redemption of stock transactions for Sidney Williams are relevant to (1) OneUnited Bank’s history of redemption of shares, a relief allegedly denied to Plaintiff, and (2) whether OneUnited Bank lied to Plaintiff regarding whether it had offered redemptions to other shareholders.

The objection that Plaintiff Bakewell did not properly define “You” in the subpoena lacks merit because “You” is properly defined to entail Sidney Williams and persons authorized to act in his place or on his behalf. (See Mot., Ivie Decl., Ex. A, Attach. 3, Definitions, ¶ 4; see Section III.A. supra [other arguments by Williams relating to “You”].)

The right to privacy, confidentiality, and third-party information objections lack merit insofar as there appears a compelling need to obtain information relating to Sidney Williams’ stock and stock redemption transactions with OneUnited Bank. (Williams v. Superior Court (2017) 3 Cal.5th 531, 556 [Where a case involves an obvious invasion of a privacy interest that is fundamental to the holder’s personal autonomy, a compelling interest or need must be present to overcome the privacy interest].)

Any privileges raised by Sidney Williams can be elaborated in a privilege log in conformity with Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, fn. 6—provided, of course, that no protective or other order is already in place to deal with privilege concerns in discovery. The Court does not see any prima facie basis to conclude that there would be any attorney-client and work product privileges to assert in testimony or production relating to financial transactions between Williams and OneUnited Bank.

Last, the documents sought by the subpoena are sufficiently particularized for the purposes of Code of Civil Procedure section 2020.510, subdivision (a)(2).

The Court therefore finds that Plaintiff Bakewell’s motion is meritorious.

D. Code Civ. Proc., § 2025.450, subd. (b)(1) [Good Cause]

The Court adopts its discussion relating to relevance in Section III.C. to find that good cause exists for production.

E. Compel Deposition Conclusion

Plaintiff Bakewell’s motion is GRANTED. (Code Civ. Proc., § 2025.450, subds. (a)(1), (b)(1), (b)(2).)

IV.

Sanctions: GRANTED, in part.

If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

Plaintiff Bakewell seeks $7,901.65 in sanctions against Sidney Williams—but not against counsel—for fees and costs incurred by Plaintiff’s counsel in pursuing Williams’ deposition and this motion. (Mot., p. 8.)

In opposition, Sidney Williams argues that sanctions are not merited against him and that it is Plaintiff and his counsel who should be sanctioned. (Opp’n, pp. 13-14.)

The reply does not further argue the issue of sanctions, merely renewing the request. (See Reply, p. 5 [“Plaintiff respectfully requests that … Plaintiff be ordered to pay a monetary sanction of $7,901.65 …”].)

The Court finds that sanctions are appropriate.

Sidney Williams has improperly failed to respond and submit to a deposition and related production requests, i.e., authorized methods of discovery, thus meriting sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).)

The Court also determines that a rate of $560 per hour is reasonable, that five hours of recovery is appropriate for the time expended by counsel attempting to advance a deposition, that only seven hours are reasonably recoverable for work expended by counsel in filing this motion, replying, and attending this hearing, and that costs of $61.65 for filing this motion are recoverable. (See Mot., Ivie Decl., ¶ 8.)

Sanctions are thus GRANTED, in part, in the reduced amount of $6,781.55. 

Conclusion

Plaintiff Danny Bakewell, Sr.’s Motion to Compel Sidney Williams’ Attendance, Production of Documents, and Testimony at Deposition, and Request for Monetary Sanctions Against Sidney Williams in the Amount of $7,901.65, is:

(1) GRANTED as to compelling a deposition and production by Sidney Williams; and

(2) GRANTED, in part, as to sanctions, in the amount of $6,781.55, against Sidney Williams.

The parties are encouraged to discuss an agreeable date for the deposition so that a date can be set at the hearing.