Judge: Stephen P. Pfahler, Case: 22CHCV00048, Date: 2023-04-24 Tentative Ruling

Case Number: 22CHCV00048    Hearing Date: April 24, 2023    Dept: F49

Dept. F-49

Date: 4-24-23

Case #22CHCV00048

Trial Date: 7-17-23

COMPEL

MOVING PARTY: Defendant, Andrew Alex

RESPONDING PARTY: Third Party, Maria Ferrufino

RELIEF REQUESTED

Motion to Compel Compliance with Deposition Subpoena for Personal Appearance and Production of Documents

SUMMARY OF ACTION

Plaintiff Marcos Ferrufino alleges formation of an oral partnership agreement with defendant Andrew Alex, whereby both parties would jointly operate the business and equally share in expenses and revenue. Ferrufino alleges Alex breached the agreement in failing to equally share sales proceeds. Ferrufino additionally alleges fraud based on the sale of two “HAAS MACHINES” instead of transferring title to the machines to Ferrufino after Ferrufino paid Alex over $180,000 for sole ownership of the machines. Alex also allegedly sold the business entity itself.

On January 19, 2022, Plaintiff filed a complaint for Fraud and Breach of Contract.  On March 24, 2022, the court sustained the demurrer to the complaint with 30 days leave to amend. On April 26, 2022, Plaintiff filed a first amended complaint for Fraud and Breach of Contract. On August 3, 2022, the court sustained the demurrer to the first amended complaint. Plaintiff filed the second amended complaint on August 23, 2022. On November 2, 2022, the court overruled the demurrer to the first cause of action for breach of contract, and sustained the demurrer without leave as to the second cause of action for fraud. The court also granted the motion to strike with prejudice as to the breach of contract cause of action for the prejudgment interest claim only. Defendant answered the operative complaint on November 17, 2022.

RULING: Granted.

Request for Judicial Notice: Granted.

The court takes judicial notice of the existence of the identified complaint, Maria Ferrurfino v. Andy Alex, 22CHCV00162, but cannot take notice of the content for the truth of the matter asserted.

Defendant Andrew Alex moves to compel compliance with a deposition subpoena served on third party Maria Ferrufino. Defendant served the subpoena following the filing of a separate complaint by Maria Ferrufino against Alex claiming a business interest. Defendant maintains the information is relevant to the instant action. The motion is unopposed. Defendant filed a notice of non-opposition as well reiterating the basis of the motion and recovery of sanctions.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) ... may make an order … directing compliance with it upon those terms or conditions as the court shall declare...”

(Code Civ. Proc., § 1987.1, subd. (a).)

The subpoena was served by counsel on November 7, 2022. [Declaration of Jolynn Sharrer, Ex. A.] The deponent failed to appear. [Id., Ex. B.] Prior efforts to confirm the appearance or reschedule received no responses. [Declaration of Emily Manninger, Ex. A.] The subpoena remains outstanding.

The proof of service of the motion, however, indicates service on party Marcus Ferrufino rather than respondent Maria Ferrufino. The motion comes with a representation that counsel for Marcus Ferrufino also represents Maria Ferrufino, as demonstrated by the filing of the counter action. “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (California Rules of Court, rule 3.1346.) The court accepts service on counsel for Maria Ferrufino as sufficient for purposes of allowing the motion to proceed. Counsel submitted no response to the motion challenging any aspect of the motion or service, which the court accepts as acquiescence to the representations.

The court therefore grants the unopposed motion and orders both the appearance of Maria Ferrufino and production of the records. The deposition will occur in the next 30 days. The parties are ordered to meet and confer regarding a mutually convenient date. If the parties are unable to agree, the court will assign dates. The court gives the parties 10 days to establish a date.

Plaintiff moves for $4,665.10 in sanctions. “[I]n making an order pursuant to motion made under … Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2.) The court finds the motion justified, and sanctions for costs and time also supported. The court therefore awards $1,132.60 in sanctions ($600 attorney time + $480.95 court reporter fees + $51.65 filing fees). The sanctions are joint and several against Maria Ferrufino and counsel, and payable within 30 days.

Final Status Conference and Jury Trial remain set for July 6 and July 17, 2023, respectively.

Defendant to give notice.