Judge: Stephen I. Goorvitch, Case: 23STCV05192, Date: 2024-03-11 Tentative Ruling

Case Number: 23STCV05192    Hearing Date: March 26, 2024    Dept: 39

Full Count, Inc., et al. v. LucasFilm Entertainment Company, Ltd., et al.

Case No. 23STCV05192

Motion for Protective Order

            Defendant Blue Stockings, Inc. (“Defendant”) filed a motion for a protective order to exclude Leslie Lindeman from Plaintiff Karyn McCarthy’s deposition.  Plaintiff opposes the motion, arguing that Leslie Lindeman is an officer of Plaintiff Full Count, Inc. (“Full Count”).   Defendant argues that this is not true, and that Leslie Lindeman—who is Karyn McCarthy’s husband—should be excluded because he is a percipient witness in this case.

            On August 10, 2023, the parties agreed to schedule Plaintiff’s deposition for September 29, 2023.  (Declaration of Corey G. Singer, ¶ 6.)  The night before the deposition—September 28, 2023, at 5:00 p.m.—Plaintiff’s counsel asked that Lindeman should be added to the list for building security.  (Id., ¶ 8.)  Defendants’ counsel stated that Lindeman would not be permitted to attend the deposition.  (Ibid.)  In response, Plaintiff’s counsel stated that Lindeman is an officer of Full Count and would attend in that capacity.

            The Court agrees with Plaintiffs’ counsel that the “Statement of Information” filed with the State of California, Secretary of State did not require Full Count to list Lindeman as an officer.  It required Full Count to identify the Chief Executive Officer, Secretary, Chief Financial Officer and all directors.  However, the only evidence of Lindeman’s status was a “Written Consent of the Sole Director of Full Count, Inc.,” dated September 29, 2023—the same date as the deposition—purportedly “confirm[ing] Leslie Lindeman’s appointment as the Company’s Vice President since June 29, 2009.”  (Id., Exh. #1, p. 47.)  At the original hearing on this motion, the Court expressed skepticism whether Lindeman had a genuine role at Full Count.  Plaintiffs’ counsel indicated that he could address the Court’s concerns, so the Court continued the hearing on the motion.

Code of Civil Procedure section 2025.420(b)(12) permits an officer of Full Count to attend the deposition of Karyn McCarthy.  Plaintiffs’ counsel has filed copies of documents suggesting that Lindeman had a genuine role at Full Count long before this litigation was initiated.  (See Declaration of Karyn McCarthy, Exh. A-R.)  Defendants’ counsel argues in his supplemental brief that none of this documentation establishes that Lindeman was an officer, as opposed to an employee.  This matters not.  The Court is persuaded that Lindeman had a genuine role at Full Count and that his designation of September 29, 2023, is not a “sham.”  The mere fact that his role was not formalized prior to this date is not dispositive, as closely-held corporations, especially family businesses, are not subject to the same corporate formalities as other corporations.  (See, e.g., Nelson v. Anderson (1999) 72 Cal.App.4th 111, 125 fn. 7.)  Defendants’ counsel cites no authority permitting the Court to exclude Leslie Lindeman under these circumstances.  Nor did Defendants’ counsel request any remedy other than an order excluding Lindeman from the deposition. 

Plaintiffs’ counsel requests sanctions in connection with this motion.  There are several problems with this request.  First, Plaintiffs’ counsel does not specify any amount of sanctions or provide any information concerning how the Court should determine potential sanctions.  Second, Plaintiffs’ counsel does not identify against whom he is seeking sanctions.  Third, and perhaps most important, the Court agrees with Defendants’ counsel that Plaintiff’s counsel handled this matter inefficiently.  Plaintiffs’ counsel should have provided verification of Leslie Lindeman’s status to Plaintiff’s counsel during the meet-and-confer process or provided the relevant documents with his opposition to the motion.  Therefore, Plaintiff’s counsel is not entitled to sanctions. 

Based upon the foregoing, the Court orders as follows:

1.         Defendants’ motion for a protective order is denied.

2.         All requests for sanctions are denied.

3.         The parties shall meet-and-confer and re-schedule the deposition of Karyn McCarthy forthwith.

4.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.