Judge: Daniel S. Murphy, Case: BC454901, Date: 2023-04-21 Tentative Ruling

Case Number: BC454901    Hearing Date: April 21, 2023    Dept: 32

BACKGROUND

            On February 10, 2011, plaintiff Leonard W. Borisoff (“Borisoff”), a composer, filed a complaint against defendants the Pullman Group, LLC; Wertheim, LLC; David Pullman; and Broadcast Music, Inc. Defendants prevailed in the compelled arbitration proceeding and were awarded ownership of Borisoff’s past and future royalties and attorney fees of $67,866.13. On October 3, 2013, Defendants petitioned the Court to confirm the award, which the Court did on January 15, 2014, with a final judgment entered on August 27, 2014. Borisoff appealed the judgment. The Court of Appeal reversed the judgment. On February 4, 2021, the Currency Corp (“Plaintiff”) was substituted as Borisoff’s successor in interest after he passed away in 2020.

            On February 9, 2023, Plaintiff filed the operative Second Amended Complaint, alleging (1) fraud, (2) intentional interference with contract, and (3) declaratory relief against Defendants Pullman Group, David Pullman, and Wertheim LLC.

            On March 13, 2023, Defendants filed the instant motion to compel the deposition of Plaintiff’s person most knowledgeable and associated production of documents.

LEGAL STANDARD

“If, after service of a deposition notice, 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, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document … described in the deposition notice, 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

DISCUSSION

            Although the parties could not agree on a date for the deposition and blame each other for this, there appears to be no actual dispute over Defendants’ right to take the deposition. The primary substantive dispute centers around the requests for production attached to the deposition. Plaintiff contends that this lawsuit has been ongoing for a decade, such that the discovery being requested is duplicative of previous discovery. Defendants argue that Plaintiff is a new party because it only substituted in after Borisoff’s death, and therefore Defendants are entitled to conduct discovery on this Plaintiff notwithstanding previous proceedings.

            Plaintiff interjected identical boilerplate objections to each of the 20 requests in order to avoid waiving them. However, Plaintiff provides no substantive support for the objections in its opposition. Defendants’ separate statement sufficiently sets forth the substance of the requests, Plaintiff’s responses, and good cause for the documents. Plaintiff makes no substantive argument with regards to the specific requests except to say that the discovery, as a whole, is duplicative. Plaintiff requests the Court to limit discovery if the motion is granted. However, Plaintiff does not articulate which requests are duplicative or how the Court should limit the discovery. Prior lawsuits and proceedings are immaterial—Defendants are entitled to discovery from Currency, the plaintiff in this action, who did not substitute in until Borisoff’s death.  

CONCLUSION

            Defendants’ motion to compel deposition is GRANTED. Plaintiff must designate and produce a PMK for deposition and produce the documents listed in Defendants’ RFPs. Sanctions are denied as the parties acted with substantial justification.