Judge Matthew C. Braner, Case Number: 37-2023-00045882-CU-PT-CTL, Date: 2024-05-17 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00045882-CU-PT-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Petitions - Other Discovery Hearing 37-2023-00045882-CU-PT-CTL CALCON MUTUAL MORTGAGE LLC VS EVANS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court will hear from the parties regarding the comments below.

Background As the court understands the facts, the petition by Petitioners Calcon Mutual Mortgage LLC dba OneTrust Home Loans ('OneTrust'), Joshua Erskine, and Matt Haertel's to compel compliance with deposition subpoenas on non-parties Scott Evans and Valerie Contino arises from a civil action in Utah state court. OneTrust is the plaintiff in the Utah case, and brought claims for breach of contract and defamation against Shan Lassig and Broch Lassig, its former employees who signed separation agreements in 2020. OneTrust alleges the Lassigs breached their employment and separation agreements by disparaging OneTrust in communications with Mr. Evans in April and May of 2022.

According to the Utah complaint, OneTrust had hired Mr. Evans on May 2, 2022, but he returned to CrossCountry Mortgage, LLC ('CCM') at the end of June 2022, where he had worked prior to joining OneTrust. OneTrust contends the Lassigs participated in a conference call with Mr. Evans on April 21, 2022, along with Ms. Contino and Rick Ruby, a 'well-connected member of the mortgage lending industry.' OneTrust alleges that during the conference call, and in communications before and after the call, the Lassigs lied that OneTrust does not honor its agreements, uses an ineffective and unsophisticated home financing system, and is not a good place to work.

Following depositions of the Lassigs and other witnesses in Utah, OneTrust concluded Mr. Evans and Ms. Contino (who live and work in California) have relevant personal knowledge of the Lassigs' comments and communications regarding OneTrust. In July 2023, OneTrust followed the procedures set forth in California's Interstate and International Depositions and Discovery Act (Code Civ. Proc., �� 2029.100 et seq.) to serve amended deposition subpoenas for personal appearance and production of documents on Mr. Evans and Ms. Contino.

Mr. Evans was personally served with a subpoena on July 24, 2023, for a deposition set for July 28, 2023 (a Friday) at 9:30 a.m. in downtown San Diego. Ms. Contino was served with a subpoena on July 21, 2023, for a deposition set for the same date and location, but at 2:00 p.m. The day before the scheduled depositions, attorney Ashley Wakefield (senior corporate counsel for CCM) informed OneTrust by letter that Mr. Evans and Ms. Contino would not appear for the unilaterally set depositions, as they had not been given sufficient time to search for responsive documents and to appear for the in-person depositions. Due to the written objection, the depositions did not go forward on July 28, 2023.

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3043945 11 CASE NUMBER: CASE TITLE: CALCON MUTUAL MORTGAGE LLC VS EVANS [IMAGED] 37-2023-00045882-CU-PT-CTL Analysis First, the court is entirely unpersuaded by Petitioners arguments concerning time. The suggestion that two non-party witnesses should be legally compelled, on the threat of contempt, to search for and compile documents, prepare for questioning and ensure representation by legal counsel, make arrangements to miss work, and then travel during traffic hours, all within four and seven days, defies common sense, and may even suggest a harassing purpose in seeking the depositions. The court will neither allow nor reward such conduct. As such, sanctions of any kind, which are within the court's discretion, will not be awarded. (Code Civ. Proc., � 2025.440, subd. (b); Code Civ. Proc., � 1987.2, subd. (a).) Second, the court is not persuaded by Mr. Evans and Ms. Contino's arguments concerning notice and timeliness. Petitioners complied with the applicable statutory provisions for out-of-state cases, and a separate statement is not required for a motion of this nature. As to timeliness, the 60-day time-period described in Code of Civil Procedure section 2025.480 only applies when a deponent appears at a deposition but refuses to answer questions or produce documents. (Code Civ. Proc., � 2025.480, subds.

(a), (b).) As no deposition took place, the time limit was not triggered.

Third, Petitioners were not required to serve notices of consumers in connection with either subpoena.

Regardless of whether Mr. Evans and Ms. Contino are witnesses under Code of Civil Procedure section 1985.3, no 'consumer' documents are involved. In particular, the Lassigs are not consumers their interactions with Mr. Evans as 'an individual' (and by extension, with Ms. Contino) did not arise from business transactions or the use of services by Mr. Evans. (Code Civ. Proc., � 1985.3, subd. (a)(2).) Petitioners also were not required to serve a notice to employee in connection with Ms. Contino's subpoena. Although the definition of 'You' includes 'anyone acting under Valerie Contino's direction or control,' it also specifies it is directed to her as 'an individual,' and therefore her employer is not involved. Given this construction of the document requests, Petitioners cannot seek documents from either witness that are not within their possession, custody, or control, such as any documents related to their employment and thereby possessed and controlled by their employer, CCM.

Finally, although Petitioners do not expressly cite to Code of Civil Procedure section 1987.1, that is the section under which their motion, which seeks to compel nonparty witnesses, must be brought. Under that section, the court '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.' (Code Civ. Proc., � 1987.1, subd. (a).) The court may also 'make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.' (Ibid.) Under the circumstances, the court intends to modify the appearance date for the subpoenas and direct compliance with the subpoenas as to that modified date. The court agrees with Petitioners they should be permitted to depose Mr. Evans and Ms. Contino, and to require them to produce responsive documents within their possession, custody, or control. The court also agrees Petitioners have the right to insist on in-person depositions.

However, the natural consequence of insisting the depositions be in-person is that scheduling them will require reasonable accommodations, particularly as to time. As such, the court will order the parties to meet and confer regarding a suitable deposition date, and may continue the hearing before making a final ruling. The court expects a reasonable and courteous effort to accommodate the schedules of the non-party witnesses.

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