Judge Kerry Bensinger, Case Number: 24STCV30176, Date: 2025-03-11 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Plaintiff Elijah Funk (Plaintiff or Funk) brings this action individually and derivatively on behalf of nominal defendants, Haunted Wagon, Inc. (Haunted Wagon) and Online Ceramics, Inc. (Online Ceramics) against defendants Alexander Ross (Ross) and Farmer’s Daughter (together, Defendants). According to Funk’s Complaint, Funk and Ross are officers and directors with equal shareholder interests in Haunted Wagon and Online Ceramics (hereinafter referred to together as the Companies). Defendants have caused and continue to cause substantial monetary losses to the Companies, including damages to the reputation and goodwill of the Companies. Those actions include the engagement in a campaign to steal from the Companies, unlawfully compete with the Companies, and to obtain exclusive control of the Companies.

On November 22, 2024, Plaintiff filed this motion for issuance of commission to take the out-of-state deposition of Sandeep Rangi and the Custodian of Records of Kaur Accounting, LLC in the State of Texas pursuant to Code of Civil Procedure section 2026.010 et seq.

“A commission . . . authorizes a designated individual to take the deposition of a named witness.” (Vokswagenwerk Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 506.)

Code of Civil Procedure section 2026.010, subdivision (f) states the following: “[o]n request, the clerk of the court shall issue a commission authorizing the deposition in another state or place. The commission shall request that process issue in the place where the examination is to be held, requiring attendance and enforcing the obligations of the deponents to produce documents and electronically stored information and answer questions. The commission shall be issued by the clerk to any party in any action pending in its venue without a noticed motion or court order. The commission may contain terms that are required by the foreign jurisdiction to initiate the process. If a court order is required by the foreign jurisdiction, an order for a commission may be obtained by ex parte application.”

A commission should be issued when a prima facie showing of diligence has been established and there are no contradicting affidavits or evidence showing diligence has not been established. (Moran v. Superior Court in and for Sacramento County (1940) 38 Cal.App.2d 328, 334.)

Here, Plaintiff’s counsel sent correspondence to Sandeep Rangi and Kaur Accounting, LLC dated November 8, 2024. (Clough Decl., ¶ 5, Exs. E and F.) Counsel requested that they provide documentation establishing that both Ms. Rangi and Kaur Accounting, LLC are licensed to provide accounting services in California and that Kaur Accounting LLC had been reinstated to conduct business in Texas, but this request was ignored. (Id.) Ms. Rangi and Kaur Accounting, LLC reside or are otherwise located in Texas. (Id. ¶ 9.) The State of Texas requires a certified copy of a Commission issued by a California court for the issuance of subpoena. (See Texas Rule Civ. Proc. § 201.2; Texas Civ. Prac. & Rem. Code § 20.002.)

The court finds Plaintiff has made a prima facie showing of diligence. There are no contradicting affidavits. Accordingly, the court issues the commission.

Kerry Bensinger

Judge of the Superior Court