Judge: John C. Gastelum, Case: 18-01037445, Date: 2022-08-30 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Tentative Ruling:  Plaintiffs Kimberly Moffatt Jones and 150 Newport Center Drive, LLC’s Motion to Compel and/or for Sanctions Regarding Unpreparedness of Tieback Holdings, LLC’s Person Most Qualified Witness (ROA 1296) is GRANTED, in part; DENIED, in part as follows.

Plaintiffs Kimberly Moffatt Jones and  150 Newport Center Drive, LLC (collectively “Plaintiffs”) move for an order compelling Defendant Tieback Holdings, LLC (“Tieback”) to produce a witness for deposition as Tieback’s Person Most Qualified (“PMQ”) who is sufficiently knowledgeable and well-prepared to testify regarding the Disputed Areas, and awarding sanctions in the amount of $8,166.90 in attorney fees and costs associated with multiple  unproductive hours of deposition over the course of three sessions, as well as $3,950 in attorney fees to prepare the instant motion.

The Court initially notes Plaintiffs have filed a declaration of counsel concerning meet and confer efforts, a Separate Statement, and a copy of deposition transcripts with marked testimony. The Court again warns Plaintiffs that a failure by Plaintiffs to comply with any procedural requirements may result in a denial of future motions.

Plaintiffs cite to Maldonado v. Superior Ct. (2002) 94 Cal.App.4th 1390, which involved an issue of a PMQ deposition notice. The Court of Appeal explained that “[u]nder the current law, ‘[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!’ [Citation.]” (Maldonado v. Superior Ct. (2002) 94 Cal.App.4th 1390, 1395-1396.) The Court of Appeal also noted the corporation’s duty in response to a deposition notice for a PMQ is “limited, . . . to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation.” (Maldonado v. Superior Ct. (2002) 94 Cal.App.4th 1390, 1398.)

Code of Civil Procedure section 2025.230 states, “[i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc. § 2025.230, emphasis added.)

Plaintiffs’ Separate Statement identifies the following Deposition Topics as set forth in their Eighth Amended Notice of Defendant Tieback Holdings, LLC and Richard Neil McCay:  Deposition Topic Nos. 8, 13, 14, 16-24, 26, and 27.

Deposition Topic No. 8:  Plaintiffs’ counsel’s questioning involved asking Mr. McCay to testify as to Mr. Lutton’s communications with the individuals listed in Deposition Topic No. 8, which is not the topic posed as to Tieback’s “Business Relationships and Communications at all times since the events giving rise to Your acquisition of a membership interest in NCAA.” Thus, Plaintiffs fail to show Mr. McCay did not prepare to testify as to Deposition Topic No. 8, and the Court DENIES the motion as to Deposition Topic No. 8.

Deposition Topic No. 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, and 27

The excerpts of the deposition testimony provided by Plaintiffs indicate Mr. McCay stated he could not provide any testimony as the PMQ for Tieback, and he did not review any documents and/or speak with any one in preparation for the deposition as to these deposition topics, such that it appears that Mr. McCay was not prepared to testify as to these topics to the extent of any information reasonably available to him within Tieback. Thus, the Court GRANTS the motion as to Deposition Topics Nos. 13, 14, 16-24, 26, and 27.

The deposition of the PMQ of Tieback limited to the foregoing deposition topics to be taken within 30 days of the notice of ruling, on a date mutually agreed upon between the parties.

Plaintiffs’ Request for Sanctions

The Court DENIES Plaintiffs’ request for monetary and/or issue sanctions. Plaintiffs fail to identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought in the notice of motion as required by Code of Civil Procedure section 2023.040.

Tieback’s Request for Sanctions

The Court DENIES Tieback’s request for monetary sanctions. Tieback fails to establish that the instant motion is frivolous or brought in bad faith.

Plaintiffs to give notice.