Judge: Daniel S. Murphy, Case: 21STCV14989, Date: 2023-02-24 Tentative Ruling

Case Number: 21STCV14989    Hearing Date: February 24, 2023    Dept: 32

BACKGROUND

            On April 20, 2021, Plaintiff Authentitech, LLC filed this action against American Wellness, LLC for breach of contract. Plaintiff alleges that it formed an agreement with Defendant for the purchase of nitrile gloves. Defendant allegedly failed to deliver the gloves despite Plaintiff’s payment of $8.3 million. Default was entered against Defendant on September 14, 2021.

            On December 19, 2022, Plaintiff filed the instant two motions to compel the depositions of Wallace Shimabukuro and the person most knowledgeable of M&W Suppliers pursuant to third-party subpoenas. No opposition has been filed.

LEGAL STANDARD

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things …, the court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a), (b).)

DISCUSSION

            Through the deposition subpoenas, Plaintiff seeks “to obtain information concerning the sale of the gloves and what happened to the $8,398,000 payment made by Plaintiff to M&W” and/or Shimabukuro. Shimabukuro appeared for deposition as the PMK for M&W on July 13, 2022, but numerous documents were not produced, and counsel for Shimabukuro and M&W agreed to have Shimabukuro appear for deposition again after additional documents were produced. On September 19, 2022, counsel for M&W notified Plaintiff that they no longer represented M&W or Shimabukuro. Thereafter, Plaintiff followed up with Shimabukuro and M&W directly to schedule a deposition but received no response. On October 31, 2022, Plaintiff issued the subject subpoenas to Shimabukuro and M&W. Neither Shimabukuro nor M&W’s PMK appeared for deposition on the scheduled dates.

            Given the lack of opposition, there is no dispute as to good cause for the depositions nor any dispute as to the scope of inquiry. No justification is provided for the deponents’ failure to appear. Therefore, Plaintiff is entitled to an order enforcing the subpoenas, and sanctions are warranted. Given the simplicity of the motions and the fact that both motions are substantively identical, Plaintiff’s counsel could not have reasonably spent more than 2 hours related to the motions. At a rate of $450 per hour and adding $120 in filing fees, this amounts to $1,080.

            Lastly, the Court notes that it is perplexing why discovery is necessary when a default has been entered against the only named defendant in this case.

CONCLUSION

            Plaintiff’s motions to compel deposition are GRANTED. Wallace Shimabukuro and/or the PMK for M&W Suppliers is to appear for deposition within 10 days. Sanctions are awarded against Shimabukuro and M&W in the amount of $1,080, to be paid within 30 days.