Judge: Monica Bachner, Case: 20STCV33078, Date: 2023-03-29 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV33078    Hearing Date: March 29, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants/Cross-Complainants Jon Gimbel’s, Anthony Guagliano’s, and Gallant Capital Partners, LLC’s, motion to compel the deposition of non-party Tom Gores is granted.  Non-party Tom Gores is to appear within 15 days, unless otherwise agreed by the parties.

          Defendants/Cross-Complainants Jon Gimbel (“Gimbel”), Anthony Guagliano (“Guagliano”), and Gallant Capital Partners, LLC (“Gallant”) (collectively, “Defendants”), move to compel non-party Tom Gores (“Gores”) to appear for deposition on the basis that he (1) possesses unique knowledge of material disputed facts, his testimony is both “relevant to the subject matter of the action” and “reasonably calculated to reveal admissible evidence,” and thus discoverable under California law; (2) the apex witness doctrine does not shield Gores from complying with the subpoena, because Defendants seek to depose Gores in his personal capacity about matters personal to him, and in any event, Gores has direct “personal knowledge” that is not reasonably available through another source; and (3) Gores’ remaining objections, which include boilerplate references to the right of privacy, are meritless, particularly in light of the protective order.  (Notice of Motion, pg. 2; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711; Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289; see Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.)

Background

Plaintiffs filed their initial Complaint in August 2020, and Defendants filed their crossclaim on June 17, 2021.  On August 23, 2022, Defendants sent Gores’ counsel, Allen Gardner of Latham & Watkins, a subpoena calling for Gores’ personal appearance to testify at deposition.  (Decl. of Foran, Exh. 13 at pgs. 3-4.)  After meeting and conferring with Defendants’ counsel, Gardner agreed to accept service of a deposition subpoena on Tom Gores’ behalf.  (Decl. of Foran, Exh. 13 at pg. 2.)  In exchange, Defendants agreed to hold Gores’ subpoena in abeyance pending the depositions of Alec Gores and Jacob Kotzubei (a partner at Platinum Equity) and the production of certain documents from Platinum Equity.  (Decl. of Foran, Exh. 13 at pg. 2.) Pursuant to this agreement, Defendants served Gardner with an updated subpoena via email on August 31, 2022, noticed for October 3, 2022.  (Decl. of Foran ¶6, Exh. 1.)  On September 15, Gores’ other counsel, Martin Singer, served written objections to the earlier unserved version of the subpoena, objecting to the unserved subpoena on a slew of boilerplate grounds, including relevance, burden, and the “apex deposition” doctrine.  (Decl. of Foran, Exh. 14.)  On September 30, Defendants’ counsel notified Singer of the correctly served subpoena and the mutual agreement to hold the deposition in abeyance pending other discovery.  (Decl. of Foran, Exh. 15 at pgs. 3-4.)  Defendants submitted evidence that on July 18, 2022, Defendants served a deposition subpoena on Platinum Equity, LLC, and in response to this subpoena, Platinum Equity, LLC, produced documents to Defendants on October 7 and November 25, 2022.  (Decl. of Foran ¶4.)  On November 21, 2022, Defendants notified Gores’ counsel that they intended to proceed with his deposition and requested available dates.  (Decl. of Foran, Exh. 15 at pgs. 1-2.)  Defendants submitted evidence that on January 10, 2023, Defendants’ counsel participated in a telephonic meet and confer with Martin Singer and Max Fabricant regarding Gores’ willingness to appear for a deposition, and the parties were unable to reach an agreement.  (Decl. of Foran ¶5.)  

          Defendants filed the instant motion on January 26, 2023.  Non-party Gores filed his opposition on March 17, 2023.  Defendants filed their reply on March 22, 2023.

Motion to Compel Deposition

Proper service of a deposition subpoena upon a California resident obligates the deponent to personally attend and testify at the deposition.  (C.C.P. §2020.220(c)(1).)  If the deponent refuses or fails to do so, a court may order the deponent to comply with the subpoena.  (Id.; C.C.P. §1987.1(a) [court “may make an order . . . directing compliance with [a subpoena]”].)  A deponent’s refusal to obey a properly served subpoena also exposes the deponent to contempt sanctions.  (See C.C.P. §2020.240 [“A deponent who disobeys a deposition subpoena in any manner . . . may be punished for contempt . . . without the necessity of a prior order of court directing compliance by the witness.”]; see also Terry v. SLICO (2009) 175 Cal.App.4th 352, 359-360 [affirming grant of motion to compel nonparty to attend deposition and award of monetary sanctions].)

Defendants are entitled to an order to compel the deposition of non-party Gores. Non-party Gores is a key factual witness in this case, whom other witnesses testified that only he knowledge of key facts in this case and has personal knowledge of the parties’ negotiation of the Letter Agreement and of AEGH’s supposed efforts to invest in Gallant pursuant to the terms of that agreement, relevant to Plaintiffs’ and Defendants’ claims and defenses in this case.  (See e.g., Exh. 2 at TGG_00008154; Exh. 3 at 69:8-70:6, 101:11-14, 108:8-24, 112:3-11, 129:21-130:15, 136:2-13, 136:18-137:6, 137:22-144:3, 139:23-140:16, 318:15-319:4; Exh. 4 at TGG_00012638; Exhs. 5-6; Exh. 10 at TGG_00005876; Exh. 11 at TGG_00011711; Exh. 12; Exh. 17 at TGG_00012190; Exh. 19 at 34:11-20, 41:4-42:6, 49:11-25, 58:1-3.)

Non-party Gores’ argument that the apex witness doctrine shields him from deposition is not persuasive.  Because Defendants seek to depose Gores in his personal capacity about matters personal to him, the apex witness doctrine does not apply. Assuming arguendo the doctrine did apply, Defendants make the showing necessary to take the deposition of an apex witness by demonstrating non-party Gores has direct personal knowledge that is not reasonably available through any other source.  (Contractors’ State License Board v. Superior Court (2018) 23 Cal.App.5th 125, 128; see Exh. 5; Exh. 10 at TGG_00005876; Exh. 12 at tab 31; Exh. 19 at 23:9-15, 36:7-24, 49:19-25.)  Defendants have exhausted other avenues for discovery from party witnesses, such as Alec Gores, Cathy Pollard, and Jen Chou, and from third-party witness Jacob Kotzubei  from Platinum Equity, LLC.  (Decl. of Foran ¶4, Exh. 19 at 1.)  Non-party Gores’ objection on the basis of privacy fails to identify a specific privacy concern, and any such concern can be addressed through the confidentiality provisions in parties’ existing stipulated protective order, and Gores also fails to substantiate his objection that the deposition would impose an undue burden, considering the subpoena is for no more than four hours and Gores can appear remotely.  (Decl. of Foran, Exh. 1.)

Based on the foregoing, Defendants’ motion to compel deposition of non-party Gores is granted.  Gores is to appear within 15 days, unless otherwise agreed by the parties.

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court