Judge: Latrice A. G. Byrdsong, Case: 22STCP01142, Date: 2023-10-24 Tentative Ruling

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Case Number: 22STCP01142    Hearing Date: October 24, 2023    Dept: 25

Hearing Date:                         Tuesday, October 24, 2023

Case Name:                             RSA TALENT MANAGEMENT LLC v. DOMINIC FRIESEN

Case No.:                                22STCP01142

Motion:                                   Hearing on Motion to Compel Depositions of RSA’s Managing Partners, Brenda Fisher and Gina Nuccio, Production of Documents

Moving Party:                         Respondent Dominic Friesen

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:           Respondent’s Motion to Compel Depositions of RSA’s Managing Partners is GRANTED.  

BACKGROUND

On March 29, 2022, Plaintiff/Appellant RSA Talent Management, LLC (“RSA”) filed a Notice

of Appeal from an Order of the Labor Commissioner awarding $3,653.75 in wages, waiting time

penalties, and interest to Defendant/Appellee Dominic Friesen (“Friesen”).

On September 13, 2022, the Court denied Appellee Friesen’s Motion to Dismiss the Appeal of

the Order, Decision or Award of the Labor Commissioner Based on Unrepresented LLC filed on

August 17, 2022. (9-13-22 Minute Order.)

On December 14, 2022, the Court ordered the case to be reclassified as a limited case; the case

was reassigned to Department 25 at the Spring Street Courthouse. (12-14-22 Minute Order; 12-

30-22 Minute Order.)

On May 19, 2023, Appellee Friesen filed the instant Motion to Compel Depositions of RSA’s

Managing Partners Brenda Fisher and Gina Nuccio, Production of Documents, and Request for

Sanctions (“Motion”). The Court, on its own motion, continued the hearing to August 10, 2023. (6-6-23 Minute Order; 7-6-23 Minute Order.) On June 9, 2023, Appellee Friesen filed a

Supplemental Declaration of Abdel Nassar in Support of the Motion.

On August 10, 2023, the Court heard the motion and continued the hearing on the motion to allow Appellee Friesen to comply with Code of Civil Procedure § 2025.450(b)(1), specifically to “set forth specific facts showing good cause justifying the production of inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

On September 1, 2023, Appellee filed an additional Supplemental Declaration putting forth facts showing good cause for the production of documents.

ANALYSIS

I.                   Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

The motion shall “(1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “(2) be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).)

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450(g)(1).)

II.                Discussion

A.     Motion to Compel

Appellee Dominic Friesen moves for an order compelling the depositions of Appellant RSA’s Managing Partners Brenda Fisher and Gina Nuccio and their production, without objections, of documents requested in the Notice of Deposition served on RSA on April 21, 2023. (Mot. pp. 1- 2.) Appellee also requests monetary sanctions in the amount of $1,200 for attorney’s fees and $550 in court reporter costs incurred on May 17, 2023. (Ibid. at p. 2.)

On April 21, 2023, Appellee Friesen served Appellant RSA with a Notices of Deposition of RSA’s Managing Partners Brenda Fisher and Gina Nuccio, scheduled for May 17, 2023. (Nassar Decl. ¶ 16, Ex. 1.) Due to an inadvertent error, the address listed in the caption of the Notices of Deposition is incorrect; however, the body of the Notices lists the correct address where the depositions were to take place. (Ibid.) RSA did not serve any written objections to the Notices. (Ibid.) On May 15, 2023, Jhonna Lyn Estioko, Legal Secretary for Friesen’s counsel, called RSA’s counsel to confirm the depositions scheduled for May 17, 2023; she left a voicemail reiterating the correct address for the depositions. (Ibid. at ¶ 17; Estioko Decl. ¶ 4.) Friesen’s counsel also sent an email to RSA’s attorney to confirm Fisher and Nuccio’s attendance at the depositions. (Ibid., Ex. 2.) RSA’s counsel did not respond to the voicemail or email. (Ibid.) Fisher and Nuccio did not appear at the deposition on May 17, 2023. (Ibid. at ¶ 18, Ex. 3.) Friesen’s counsel again followed up with RSA’s attorney, but did not receive any response. (Ibid.) On June 9, 2023, Friesen filed the Reporter’s Certificate of Non-Appearance and invoice for court costs. (Supp. Decl. ¶ 4, Ex. 4.)

Appellee Friesen has submitted evidence that Appellant RSA was served with deposition notices. RSA did not serve a valid objection and its Managing Partners Fisher and Nuccio did not appear at the deposition noticed for May 17, 2023. Following RSA’s Managing Partners’ failure to appear at the deposition, Friesen’s counsel made another attempt to contact RSA’s counsel.

The supplemental deposition submitted on September 1, 2023 complies with the requirement set forth in Code of Civil Procedure § 2025.450(b)(1). Counsel Abdel Nassar declares that there is good cause for the production of documents requested in the notices of depositions. Mr. Nassar states that Request 1 seeks any and all partnership agreements between deponents and RSA. Mr, Nassar states that this production will help Plaintiff understand and/or establish their roles in RSA, including their roles in setting employment policies. Requests 2-11 seek communications between RSA/Deponents and Plaintiff, time and payroll records related to Plaintiff, and documents related to services provided by Plaintiff to RSA’s clients. Mr. Nassar states that there is good cause for production of these documents because Plaintiff seeks unpaid wages and penalties that Defendant denies are owed, and these documents will assist Plaintiff in establishing his claims against RSA or are likely to lead to relevant evidence. (Nassar Decl. ¶ 3.)

B.     Sanctions

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010(d).) In addition, a court shall impose monetary sanctions if a motion to compel a deposition is granted unless “the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code. Civ. Proc. § 2025.450(g)(1).)

Appellee Friesen requests monetary sanctions in the amount of $1,200 for attorney’s fees and $650 in court reporter costs incurred on May 17, 2023. (Nassar Decl. ¶¶ 19-23.) Attorney’s fees are calculated as follows: two (2) hours for drafting the Motion and counsel’s declaration and one (1) hour to prepare for and attend the hearing, at an hourly rate of $400. (Ibid.) Friesen also seeks $650 for court reporter fees. (Ibid. at ¶ 23; Supp. Decl. ¶ 4, Ex. 4; 09/01/23 Supp. Decl. ¶ 4.)

The Court GRANTS the request for sanctions in the amount of $1,850 against RSA.

III.       Conclusion

            The Court grants this motion to compel RSA Managing Partners Gina Nuccio and Brenda Fisher to attend their depositions and produce all documents identified in the deposition notices. The Court also orders monetary sanctions in the amount of $1,850.

            RSA Managing Partners Gina Nuccio and Brenda Fisher are ordered to appear for deposition and produce all documents identified in the deposition notices within 30 days of this order.

            RSA Managing Partners Gina Nuccio and Brenda Fisher are ordered to pay monetary sanctions in the amount of $1,850 to Appellee Friesen within 30 days of this order.

            Moving party to give notice.