Judge: Nathan R. Scott, Case: Thompson v. Cue Industries, Date: 2023-05-19 Tentative Ruling

Motion to Compel:  LA EJuice PMQ Depo

Plaintiff’s motion to compel compliance with his subpoena to LA EJuice LLC is granted on these terms.  (See Code Civ. Proc., § 1987.1.)

LA EJuice shall produce its person most qualified to testify at a remote deposition on Thu. 5/25/23 at 9 am.

The deposition shall be limited to these topics:

• LA EJuice’s (aka or dba Five Star Juice) relationships with Robert Crossley, ARC LLC, Rehab Vapos LLC, Cue Industries LLC, William Spallino, or Matthew Ippolito to the extent the relationships concern or encompass the production, distribution, or sale of any “Burst” flavor product labeled as “made by Cue” or labeled in any other manner that suggests it was made by Cue Industries, LLC (hereinafter the Products); and

• LA EJuice’s communications with Robert Crossley, ARC LLC, Rehab Vapos LLC, Cue Industries LLC, William Spallino, Matthew Ippolito, or Jeryl Thompson regarding the approval, authority, or permission to produce, distribute, or sell the Products.

Plaintiff’s counsel shall email the videoconference link to all parties, the deponent, and their counsel no later than 5/24/23 at 12 pm.

The parties may agree in writing no later than 5/24/23 at 12 pm to modify the time, date, or manner of taking of the deposition.

The subpoena seeks information relevant to plaintiff’s cause of action for retaliation. Evidence showing Spallino was actually involved in the distribution of fraudulent, counterfeit, or mislabeled products may tend to show he fired plaintiff with retaliatory intent for plaintiff’s reporting or blocking the distribution of those products.

Plaintiff cannot reasonably obtain this discovery from defendants, who deny directing or authorizing LA EJuice to make the counterfeit product. 

Motion to Compel:  LA EJuice Records

Plaintiff’s motion to compel compliance with his business records subpoena to LA EJuice is granted on these terms.  (See Code Civ. Proc., § 1987.1.)

LA EJuice shall produce all documents responsive to Requests #1-3 and 10 as modified below to the parties no later than Tue. 5/23/23 at 5 pm.  All capitalized terms have the meaning defined in the subpoena.  Any time period set forth in the subpoena’s definitions shall be limited to 1/1/20 through 8/1/20: 

• #1 – All DOCUMENTS reflecting or referencing any order for PRODUCT that ARC LLC asked YOU make from 1/1/20 to 8/1/20.

• #2 – All DOCUMENTS that identify any PERSON who provided YOU with “made by CUE LLC” labels, from 1/1/20 to 8/1/20.

• #3 – All DOCUMENTS that identify any PERSON who authorized YOU to use “made by CUE LLC” labels from 1/1/20 to 8/1/20.

• #10 – All DOCUMENTS that identify any PERSON who asked or arranged for YOU to make the PRODUCT from 1/1/20 to 8/1/20. 

Plaintiff has not shown good cause for remainder of the demands.  Plaintiff does not need to know LA EJuice’s exact Product recipe to show the Product was mislabeled or to ascertain Spallino’s involvement in LA EJuice’s manufacture of the Product.

Motion to Compel:  Mallari Subpoena

Plaintiff Jeryl Thompson’s motion to compel compliance with the deposition subpoena to Kansley Mallari’s is denied. (See Code Civ. Proc., § 1987.1.)

This subpoena seeks the same testimony as the subpoena for LA EJuice’s PMQ deposition and is therefore unreasonably duplicative.

Motion to Compel:  Cue PMQ Depo

Plaintiff’s motion to compel defendant/cross-complainant Cue Industries LLC’s PMQ deposition is granted.  (See Code Civ. Proc., § 2025.450.)

Cue shall produce its person most qualified to testify at a remote deposition on the examination categories identified in the 4/6/23 deposition notice (see Ovando decl., Ex. C) on Wed. 5/24/23 at 10 am.

Plaintiff’s counsel shall email the videoconference link to all parties, the deponent, and their counsel no later than 5/23/23 at 12 pm.

The parties may agree in writing no later than 5/23/23 at 12 pm to modify the time, date, or manner of taking of the deposition.

Cue shall pay $1,260 in discovery sanctions to plaintiff.

Ex Parte Application

Plaintiff’s ex parte application to extend all discovery deadlines is denied.

Plaintiff fails to show “[t]he necessity and the reasons for the [remaining outstanding] discovery,” his diligence in seeking this discovery, or his diligence in bringing the motions set after trial.  (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586-1588; see Code Civ. Proc., § 2024.050, subd. (b); see generally Ovando decl. [ROA #766].)

Plaintiff shall give electronic notice of all rulings no later than 4 pm today.