Judge Matthew C. Braner, Case 37-2021-00031375-CU-BC-CTL 2023-11-09 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2021-00031375-CU-BC-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Breach of Contract/Warranty Discovery Hearing 37-2021-00031375-CU-BC-CTL MATRIARCH DESIGN LLC VS WEAR [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Matriarch Designs, LLC's motion to compel production at deposition from third-party Suzi Gregg is DENIED.

The court has now had an opportunity to reconsider, with the benefit of briefing and evidence submitted in response to Plaintiff's motion, the numerous accusations of service evasion made by Plaintiff's counsel at the August 7, 2023 trial call. At that hearing, attorney Caspino repeatedly represented to the court that Suzi Gregg had made a concerted effort to evade service, and he justified the failure to include her on the witness list by emphasizing such service evasion and that 'we didn't think we were going to get her.' (ROA #104, Blackford Dec., Ex. E [August 7, 2023 Reporter's Transcript], at p. 18:27-28.) These accusations were as follows (citations to August 7, 2023 Reporter's Transcript): - 'Now, Ms. Gregg did everything she could to hide from our process servers for months. And, finally, on Friday, we sent two ex-FBI agents and they were able to catch her and get her the subpoena.' (At p. 4:19-22.) - 'So the issue with why she wasn't put on the list was because we didn't think we were going to be able to get her, and we made one last try thinking she would have her guard down on Friday, and she is now able to come in and she has been served.' (At pp. 4:8-5:3.) - 'And she was clearly evading service from us for months.' (At p. 7:27.) - 'We need to go back to the crux of why we're here. The crux of why we're here is not because we were not diligent in anything. The crux is because this woman was hiding.' (At p. 13:17-20.) - 'I really need her, Your Honor. I need her. And, honestly, I can tell you we tried and tried and tried and tried to get her to be served and she was hiding from our people. Lights were on in the house.

She was in the backyard, et cetera. I mean, this is the product of someone who was -- I think made a concerted effort to avoid subpoena and process, and we really need her.' (At p. 17:19-27.) - 'I'm being very frank with Your Honor. We tried one last try on Friday afternoon. We didn't think we were going to get her. We've been looking for her since April, and, bang, we got her. That is why absolutely, positively she was pivotal to this case. And I say to Your Honor she avoided our service of process through no fault of our own. We finally get her on Friday and she's in a panic and -- because now she has to come in here. And she knew that we were looking for her.' (At p. 18:26-19:7.) Attorney Caspino also represented to the court more than once that he would provide declaratory evidence of his diligence. (August 7, 2023 Reporter's Transcript, at pp. 5:4-5, 7:6-8, 19:8-14.) Despite these assurances, Plaintiff's counsel has yet to provide such evidence. On the other hand, Defendants have provided the court with copies of the trial subpoenas issued against Ms. Gregg on April 12, 2023 (ROA #104, Blackford Dec., Ex. C) and July 27, 2023 (ROA #104, Blackford Dec., Ex. D). Critically, the Calendar No.: Event ID: TENTATIVE RULINGS

3044707 7 CASE NUMBER: CASE TITLE: MATRIARCH DESIGN LLC VS WEAR [IMAGED] 37-2021-00031375-CU-BC-CTL service addresses for the two subpoenas are not the same; the address for the April subpoena is 1257 Moana Dr, San Diego, CA 92107, whereas the address for the July subpoena is 1247 Moana Dr, San Diego, CA 92107. The fact that service was successfully effectuated in connection with the July subpoena leads the court to conclude it contained the correct address, and the April subpoena did not.

The court finds it difficult to believe attorney Caspino did not recognize this difference at the August 7, 2023 hearing; someone in his office must have realized the mistake in order to correct the address for the July subpoena. The court is very troubled that he may have intentionally withheld this information from the court while repeatedly disparaging Ms. Gregg as a service evader.

In any case, it is plain to the court that Ms. Gregg was not 'hiding' or otherwise evading service; the failure to serve her with the April subpoena falls squarely on Plaintiff's counsel. Ms. Gregg also attests that conducting a search for the broad categories of documents requested by Plaintiff would be very time consuming and burdensome due to the nature of her work and her present time commitments. (ROA #103, Gregg Dec., ¶¶ 2-8.) Under these circumstances, the court will not compel Ms. Gregg, an innocent third-party brought into this case on the eve of trial through no fault of her own, to produce documents in response to Plaintiff's broad document requests.

Accordingly, Plaintiff's motion to compel is denied. The parties are ordered to meet and confer regarding Ms. Gregg and Plaintiff's deposition, which are to take place no later than the end of November.

The court will set a status conference for December 15, 2023 at 11:00 a.m. re: discovery issues.

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