Judge: Serena R. Murillo, Case: 20STCV39045, Date: 2023-05-24 Tentative Ruling
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Case Number: 20STCV39045 Hearing Date: September 27, 2023 Dept: 31
TENTATIVE
Defendants’ motion for leave to take a subsequent deposition of
Williams is GRANTED. The Court finds there is good cause to take a subsequent
deposition of Williams. Defendants shall take a subsequent
deposition of Williams for no more than 4 hours.
Legal Standard
A deposition “shall be limited to seven hours of total
testimony. The court shall allow additional time . . . if needed to
fairly examine the deponent or if the deponent, another person, or any other
circumstance impedes or delays the examination.” (Code Civ. Proc., §
2025.290, subd. (a).)
“Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave, nor any
other party who has been served with a deposition notice pursuant to Section
2025.240 may take a subsequent deposition of that deponent.” (Code Civ.
Proc., § 2025.610, subd. (a).) For good cause shown, the court may grant
leave to take a subsequent deposition. (Id., § 2025.610, subd.
(b).)
Under CCP section
2017.010, “any party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action...if the
matter either is itself admissible in evidence or appears reasonably calculated
to lead to the discovery of admissible evidence.”
Discussion
Defendants move for leave to take a
subsequent deposition of Mark A. Williams.
Williams was employed by Plaintiff for 29 years and, according to the FAC,
“[a]t all relevant times... was a board member of Plaintiff Concerned Citizens
and Plaintiff’s primary contact for the Carver Middle School Project.” (FAC,
¶19.) Plaintiff alleges that the misrepresentations regarding free field
replacement were made to Williams. (Id., ¶¶ 35-37.)
Williams was deposed in this case
on August 4, 2022 and Plaintiff relied heavily on his testimony in opposing
AstroTurf’s motion for summary judgment. Following the ruling on the MSJ,
Williams sent over 20 unsolicited emails to AstroTurf’s counsel and made a
series of claims and accusations against Plaintiff’s Executive Director (and
PMQ in this case) and its counsel. Williams claims that Plaintiff’s counsel
falsified evidence in this case and that Plaintiff’s Executive Director, Noreen
McClendon, diverted millions of dollars intended to benefit the children of Los
Angeles for her personal benefit. He further alleges that he (not McClendon) is
Plaintiff’s Executive Director and authorized to act on Plaintiff’s
behalf. Good cause exists warranting a subsequent deposition to allow AstroTurf
an opportunity to inquire about Williams’ recent accusations against Plaintiff
and its counsel, which are directly relevant to the claims and defenses in
this action.
First, testimony regarding Noreen McClendon
“diverting millions of dollars” of award grant money for her personal benefit
goes directly to AstroTurf’s defense premised on Plaintiff’s refusal or
inability to pay its pro-rata share of field replacement costs under the JUA.
If Plaintiff was unable to pay its fair share of replacement costs because
its Executive Director was embezzling grant money, that would rebut any
claim that AstroTurf disrupted or interfered with the contract between
Plaintiff and LAUSD. It would also rebut Plaintiff’s claim for damages if the
evidence demonstrates that the Prop K Grant money was not being used for
its intended purpose of making improvements at Carver Middle School. Second,
Williams’ claim that Plaintiff’s counsel “altered documents to falsify
evidence,” calls into question the veracity and authenticity of documents
produced in discovery. If true, this evidence would expose Plaintiff and its
counsel to serious consequences including evidentiary and possibly terminating
sanctions. Third, testimony regarding the identity of Plaintiff’s
Executive Director, i.e., whether it is Williams or McClendon, is relevant to
the claims and defenses, and also for settlement purposes if (as he
claims) Williams is authorized to act on Plaintiff’s behalf.
In opposition, Plaintiff argues that the
discovery Defendants seek is not relevant to any issue at trial and simply
reflects aberrant behavior by Williams, which is not admissible at trial under
Evidence Code Section 352 and case law regarding alleged bad acts.
The Court finds
there is good cause for a second deposition of Williams. First, as to
Plaintiff’s claim that Williams is engaging in aberrant behavior, the defense
is entitled to discovery on the issue of Williams’s claims to make its own
determination of whether or not his claims are credible. Second, regardless of
the truth of Williams’s accusations, Williams and McClendon are the two key
fact witnesses for Plaintiff, and Defendant contends one if them is being
untruthful, and thus the character of a witness for the trait of honesty and
truthfulness is relevant and is fodder for cross-examination. Moreover, as
stated in previous rulings by this Court, the claims relating to Plaintiff’s
finances are relevant to Defendants’ defense of mitigation of costs. Even if
Plaintiff is not claiming they could not afford to pay for replacement of the
field, as Defendants point out, Defendants are asserting that Plaintiff failed
to mitigate costs by paying for it, even if they were not obligated to under
the contract.
As for Plaintiff’s argument that
Defendants knew of these allegations since 2021 and failed to take a subsequent
deposition, Defendants argue in reply that since the time of Williams’s
deposition, additional issues have surfaced: Williams has filed his own
litigation against McClendon in which he seeks injunctive relief prohibiting
her from acting as the executive director of Plaintiff, and in which he alleges
that McClendon and other members of the Plaintiff Board improperly misdirected
“millions of dollars” to friends and associates. (Sohi Reply Decl., Exh. C at ¶
7.) He further alleges that he was fired because he demanded that the firm
conduct an organizational audit in 2018, which was his right pursuant to
Plaintiff’s bylaws. (Id. at ¶ 8). Moreover, at the time of Williams’s
deposition, the conflict between Williams and Plaintiff was not evident to
defense counsel; indeed, only a month prior to the deposition, counsel for
Plaintiff reiterated that it had represented Williams “from the outset of the
litigation,” and he admonished defense counsel that any communications with
Williams would be grounds for disqualification. (Id., Exh. A.)
Lastly, it appears that additional time is
needed to fairly depose Williams. However, the Court finds that no more than 4 hours needed for additional deposition of Williams.
Conclusion
Accordingly, Defendants’ motion for leave to take a subsequent deposition of Williams is GRANTED. The Court finds there is good cause to take a subsequent deposition of Williams. Defendants shall take a subsequent deposition of Williams for no more than 4 hours.
Moving party is ordered to give notice.