Judge: Elaine Lu, Case: 19STCV15991, Date: 2023-04-11 Tentative Ruling

Case Number: 19STCV15991    Hearing Date: April 11, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On May 8, 2019, Plaintiff Meridian Pacific Holdings, LLC (“MPH”) filed the instant action arising out of approximately $1.6 million in advances made pursuant to three business financing agreements.  On April 1, 2021, Plaintiffs MPH and Meridian Financial Group, LLC (“MPG”) (jointly “Plaintiffs”) filed the operative Third Amended Complaint (“TAC”) against defendants Ameritek Ventures, Inc. (“Ameritek”); Lion Den, LLC (“Lion”); PPB Engineering & Systems Design, Inc. (“PPB”); Michael Stokes (“MStokes”); Constantina Frial (“Frial”); Kenneth Mayeaux (“KM”); Jamie Mayeaux (“JM”); and Clinton Stokes (“CStokes”). 

The TAC asserts eleven causes of action for (1) Breach of Contract against PPB, CStokes, MStokes, JM, and KM; (2) Breach of Contract against Ameritek, CStokes, MStokes, KM, and JM; (3) Breach of Contract against Lion, Frial, and MStokes; (4) Money Had and Received against all defendants; (5) Unjust Enrichment against all defendants; (6) Promissory Fraud against PPB, CStokes, MStokes, JM, and KM; (7) Promissory Fraud against Ameritek, CStokes, MStokes, KM, and JM; (8) Promissory Fraud against Lion, Frial, and MStokes, (9) Fraud against PPB, CStokes, MStokes, JM, and KM; (10) Fraud against Ameritek, CStokes, MStokes, KM, and JM; and (11) Fraud against Lion, Frial, and MStokes.

On March 10, 2021, MPH and Arjan Zeiger (“Zeiger”) filed the operative third amended cross-complaint against CStokes for (1) Breach of Agreement, (2) Money had and Received, and (3) Fraud. 

On April 9, 2021, Defendants and Cross-Complainants CStokes, KM, and JM filed a cross-complaint against Ameritek and Shaun Passley (“Passley”).  The cross-complaint asserts six causes of action for (1) Indemnity, (2) Breach of Contract, (3) Breach of Contract, (4) Breach of Contract, (5) Breach of Contract, and Tortious Interference with Contract.

On January 28, 2022, CStokes filed the operative third amended cross-complaint against MPH, Zeiger, Garry Weyand, Steven Davis, and Colonial Stock Transfer Company, Inc. for (1) Fraud, (2) Breach of Contract, (3) Money had and Received, (4) Quasi-Contract, and (5) Implied Contract. 

On August 19, 2022, Plaintiffs filed the instant motion to quash the notice of deposition of MStokes or in the alternative for a protective order.  On March 29, 2023, Defendants CStokes, KM, and JM (collectively “Defendants”) filed an opposition.  On April 4, 2023, Plaintiffs filed a reply.

Legal Standard

Motion to Quash

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents.  (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (CCP § 2020.020.)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (CCP § 2020.410(a).)  The court, upon motion or the court’s own motion, “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.”  (CCP § 1987.1(a).)  In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (CCP § 1987.1(a).) 

Pursuant to Code of Civil Procedure section 2017.010:

Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

(Ibid.)

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal citations omitted].) 

Protective Order

Pursuant to Code of Civil Procedure section 2025.420, “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.  (CCP § 2025.420(a).)  Upon the showing of “good cause” the Court may make “any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (CCP § 2025.420(b).) 

“The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.”  (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)  Generally, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.”  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) 

The court shall impose monetary sanctions against any party or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification or that the imposition of sanctions would otherwise be unjust. (CCP § 2025.420(h).)

Discussion

            On August 8, 2022, Defendants electronically served Plaintiffs with notice for a deposition of MStokes scheduled for August 24, 2022.  (Miller Decl. ¶ 2, Exh. 1.)  The deposition notice included a deposition subpoena that indicated that it had been served on July 22, 2022.  (Miller Decl. ¶ 3, Exh. 1.)  Defendants had not met or conferred about the deposition date or served Plaintiffs with the deposition notice.  (Miller Decl. ¶ 4.)  However, for the past three years throughout this litigation, “the parties have issued other subpoenas to third parties – all of which included immediate service of notice to the other party.”  (Miller Decl. ¶ 4.)  Defendants did not confirm the scheduled deposition date for MStokes with Plaintiffs before service notice of the deposition date, and Plaintiffs’ Counsel was unavailable for the date scheduled.  (Miller Decl. ¶¶ 5-6.)  Accordingly, on August 16, 2022, Plaintiffs objected to the deposition of MStokes.  (Miller Decl. ¶ 7, Exh. 2.)  On August 16, 2022 and August 17, 2022, Plaintiffs’ Counsel emailed Defendants about the deposition.  (Miller Decl. ¶ 8, Exh. 3.)  Defense Counsel attempted to speak with Plaintiff’s Counsel about MStokes deposition, but Plaintiffs’ Counsel refused to respond or meet and confer.  (Meehan Decl. ¶ 7, Exh. 3.)

            Plaintiffs’ Counsel contends that the Court should quash the deposition notice because (1) the deposition notice was defective, (2) Plaintiffs were not served a copy of the subpoena, and (3) the taking of the deposition would be oppressive to Plaintiffs.  The Court disagrees.

            The Deposition Notice Was Not Defective     

            Plaintiffs contend that the deposition notice was defective because the notice failed to identify the deposing party as required under Code of Civil Procedure section 2025.220(a).  Code of Civil Procedure section 2025.220(a) merely requires that Defendants give written notice to all parties.  (CCP § 2025.220(a), [“A party desiring to take the oral deposition of any person shall give notice in writing.”].)  Plaintiffs’ own motion shows that Defendants have given written notice of the deposition and satisfied this requirement.  (Miller Decl. ¶ 2, Exh. 1.) 

            Additional Service of a Copy of the Subpoena was Unnecessary

            As a preliminary matter, Plaintiffs fail to cite any authority requiring that Defendants give separate notice of the subpoena at the time the subpoena is served.  Moreover, a deposition subpoena was unnecessary to set the deposition of MStokes.

            “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the … to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”  (CCP § 2025.280(a).)  MStokes is a party to the action and therefore only service of the notice was required.  The fact that MStokes is in default is immaterial.  “The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.”  (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.)  Thus, while MStokes is unable to take affirmative steps – such as serving discovery requests -- nothing prohibits a party from taking MStokes deposition. 

            The Taking of the Deposition Would Not Have Been Unjust

            In general, “a natural person may be deposed only once during the run of the litigation.”  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 254; CCP § 2025.610(a).)  However, “for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”  (CCP § 2025.610(b).)

            The fact that the deposition may have gone forward without Plaintiffs is not itself prejudicial or unjust because Plaintiffs could have merely moved for leave to take MStokes’s deposition again.

A Protective Order Is Warranted

            In order to promote some semblance of cooperation, the Court finds that a protective order is warranted.  Defendants could have given notice that they intended to take MStokes deposition on August 24, 2022 before serving the deposition subpoena on MStokes.  Defendants failed to give such notice in violation of the local rules.  Regardless, this rule is merely a guideline as the unilateral setting of a deposition under Los Angeles County Superior Court Rule.  Local Rule 3.26 is not a basis for an objection to the notice because all local rules are preempted as to discovery.  (Cal. Rules of Court, Rule 3.20(a).)  

            On the other hand, Plaintiffs fail to explain why Plaintiffs could not conduct the deposition on August 24, 2022.  Plaintiffs were given ample notice – i.e., 16 days –prior to when the deposition was scheduled to take place.  Plaintiffs fail to identify any reason why Plaintiffs could not attend the deposition or why someone else from Plaintiffs’ Counsel could not attend the deposition on August 24, 2022.  Rather, Plaintiffs’ counsel merely objected on the basis of an unspecified conflict.  (Miller Decl. ¶ 6.) 
            Given the parties’ failure to communicate and meet and confer, the Court concludes that a protective order is necessary.  For future depositions, the moving party must electronically give two (2) court day notice of the intended date of deposition before service of the deposition on the deponent.  Within one (1) court day of receipt of any such notice, any party opposed to the proposed date must electronically give notice to all parties of such objection and propose six (6) alternative dates split over multiple calendar weeks as alternatives.  The party seeking the deposition may choose any of these dates. 

Sanctions

            Sanctions were not requested in the notice.  Therefore, no sanctions can be awarded.  (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

CONCLUSIONS AND ORDER

            Based on the foregoing, Plaintiff Meridian Pacific Holdings, LLC and Meridian Financial Group, LLC’s motion to quash the notice of deposition of Michael Stokes is DENIED.  Plaintiffs’ motion for a protective order is GRANTED IN PART.

For future depositions, the moving party must electronically give two (2) court day notice of the intended date of deposition before service of the deposition on the deponent.  Within one (1) court day of receipt of any such notice, any party opposed to the proposed date must electronically give notice to all parties of such objection and propose six (6) alternative dates split over multiple calendar weeks as alternatives.  The party seeking the deposition may choose any of these dates. 

            Moving Parties are to give notice of this order to all parties and file proof of service of such.

DATED: April 11, 2023                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court

4/11/23:

Plaintiff’s ex parte application for an informal discovery conference is GRANTED.  Plaintiff and Defendants Jamie Mayeaux stipulated in open court today to participate in an informal discovery conference at 3 pm today.

At the informal discovery conference, Plaintiff, Defendants Jamie Mayeaux, and non-party James Wesley Poff (represented by Scott Meehan) stipulated to all of the following:

(1)   By April 12, 2023, Plaintiff’s Counsel shall email James Wesley Poff’s counsel a list of indicia of why Plaintiff’s Counsel believes that James Wesley Poff’s prior production was incomplete;

(2)   By May 1, 2023, James Wesley Poff shall produce all documents responsive to the subpoena served by Plaintiff (if there are any additional documents that have not already been produced);

(3)   James Wesley Poff shall appear for deposition by Plaintiff on May 16, May 18, or May 19;

(4)   The deadline for Plaintiff to file and serve a noticed motion to compel James Wesley Poff for deposition shall be extended to June 1, 2023; and

(5)   The parties will meet and confer to agree on deposition dates for the following witnesses: James Wesley Poff, Clinton Stokes, Garry Weyand, Steven Davis, Ari Zieger in his individual capacity, Constantina Frial, Michael Stokes;

(6)   If the parties are unable to agree on deposition dates for all of these witnesses, they shall contact the court to request a further informal discovery conference, and all parties shall file and serve a joint statement no later than three days before the further IDC identifying the dates on which they propose to make the witnesses under their control available for deposition; and

(7)   Jamie Mayeaux is not encompassed in this stipulation.  The Court will have to rule on Plaintiff’s motion to compel Jamie Mayeaux’s further deposition.

It is so ordered.  The Court hereby adopts the parties’ stipulation and orders the parties to comply with their stipulation as set forth above.

The parties entered into these stipulations in open Court.  Prior to finalizing this minute order, the Court posted this minute order on the Court’s online tentative ruling website, and all Counsel agreed to the accuracy of this minute order in reflecting the parties’ stipulations.

With respect to Plaintiff’s motion for protective order currently scheduled for 11/28/23 and Plaintiff’s motion to compel Jamie Mayeaux’s further deposition testimony currently scheduled for 12/12/23, the Court hereby sets the following briefing schedule for these pending motions:  Any oppositions to the motions must be filed and served no later than May 1, 2023.  Any replies must be filed and served no later than May 5, 2023.  The Court sets this special briefing schedule so that briefing will be complete so as to provide the moving party with the flexibility to advance the hearing on the motions based upon availability of an earlier hearing date on the online Court Reservation System (CRS).  The Court notes that this special briefing schedule provides the opposing parties (Defendants) with statutory notice of the motion and sufficient time to file written oppositions pursuant to Code of Civil Procedure section 1005(b).

The court encourages the moving party Plaintiff to frequently check CRS to monitor whether a sooner hearing date before the trial becomes available if and when parties in other cases cancel their CRS hearing reservations.  If so, CRS will allow the moving party to freely advance the hearing on the motion without court permission or intervention.  If a sooner hearing date becomes available on CRS that is no earlier than May 12, 2023 at least one week prior to the new hearing date, the moving party may move the CRS reservation to that earlier hearing date, and the moving party must concurrently file and serve notice of the new hearing date with at least one week notice prior to the new hearing date. 

No later than one week prior to the continued (May 30, 2023) hearing on Plaintiff’s Ex Parte Application to Advance Hearings, the parties are to file a joint statement advising whether Poff has complied with the stipulated order above.

The moving party’s failure to appear at the continued hearing on the instant ex parte application will result in the  ex parte application being taken off calendar without any ruling from the Court.

The Court's Judicial Assistant is to give notice of this order to all parties.