Judge Thomas D. Long, Case 21STCV27804 2023-04-06 Tentative Ruling

On July 22, 2021, Plaintiffs Philip Lawrence and Philmar Studios, Inc. filed this action against Defendants Patrizio Moi, Moi Productions, Inc., and The Record Plant, Inc.

On August 15, 2022, Moi served a notice of deposition and deposition subpoena on Plaintiffs’ counsel (then DLA Piper), who also represented and agreed to accept service for non-party Miles M. Cooley. (LeBoff Decl. ¶ 9 & Ex. 2.) Mr. Cooley is an attorney who represented Plaintiffs when relevant agreements were signed. The deposition was scheduled for September 22, 2022. Neither Plaintiffs nor Mr. Cooley objected to the deposition. (LeBoff Decl. ¶ 10.) When preparing for the deposition, Moi’s counsel learned that Moi was in possession of documents that Plaintiffs may potentially consider privileged, so he informed DLA Piper on September 20, 2022. (LeBoff Decl. ¶ 11.) Moi’s counsel also stated, “Please let me know in the next ten days what you want to do about these documents. If your position is that they are privileged, I will keep them quarantined for a reasonable period of time to allow you to file a motion and the court rule on the privilege issue.” (LeBoff Decl., Ex. 3.) The next day, DLA Piper informed Moi’s counsel that Mr. Cooley would not appear for his deposition on September 22. (LeBoff Decl. ¶ 12 & Ex. 3.)

On September 30, 2022, DLA Piper sent a letter to Moi’s counsel that set forth, among other things, “Next Steps” consisting of an agreement to return Super Admin access to emails and destroy all wrongfully obtained information, Plaintiffs’ depositions regarding Moi’s conduct, and possible motions for disqualification of Moi’s counsel or for terminating sanctions. (LeBoff Decl., Ex. 5 at p. 5.) To date, no such motions have been filed.

On February 16, 2023, the Court granted DLA Piper’s motion to withdraw as counsel of record for Plaintiffs. DLA Piper still represents Mr. Cooley.

Mr. Cooley argues that Moi cannot compel his deposition under Code of Civil Procedure section 2025.450 because that applies only to parties, Moi did not meet and confer, and he did not fail to appear. (Opposition at p. 6.) However, Moi also brought this motion under Code of Civil Procedure section 1987.1. Under that section, a party may move to compel compliance with a subpoena that requires the attendance of a witness. (Code Civ. Proc., § 1987.1.) Unlike a motion under Code of Civil Procedure section 2025.450, there is no requirement of an accompanying meet and confer declaration.

Mr. Cooley argues that he “did not fail or refuse to appear, nor did he cancel the deposition.” (Opposition at p. 7.) He “has repeatedly stated his intention and willingness to appear for the original and rescheduled deposition: he agreed to the original deposition date, he did not object to the deposition, his counsel informed Moi’s counsel that the deposition would be rescheduled once the privilege issue was resolved, and his counsel recently proposed that Cooley’s deposition be scheduled for a date within 30 days of resolution of the privilege issue.” (Ibid.) However, it is undisputed that Mr. Cooley did not attend his September 22, 2022 deposition. Because he did not appear for his properly subpoenaed deposition, the motion is granted.

Additionally, on April 3, 2023, Plaintiffs and Defendants filed a joint stipulation to continue the deadlines and hearings for Defendants’ other discovery motions, but they specifically requested that this motion remain on calendar as scheduled. Accordingly, the Court assumes that Plaintiffs do not intend to pursue any privilege issue before Mr. Cooley’s deposition and they will not be prejudiced by the Court granting this motion.

A court may award the amount of the reasonable expenses incurred in making or opposing a motion to compel compliance with a deposition subpoena 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, subd. (a).)

Mr. Cooley argues that he acted with substantial justification because he was waiting for the privilege issue to be resolved, and “This is not a situation where the deponent ignored a subpoena and blew off the deposition. Cooley did not fail to or refuse to appear for deposition, but instead has remained willing to do so once the privilege issue between Plaintiffs and Moi is resolved.” (Opposition at p. 8.) He contends that, “to avoid prejudice to Plaintiffs who are currently unrepresented by counsel, Cooley’s deposition should not occur until Plaintiffs have new counsel who can assert and defend their rights during Cooley’s deposition.” (Ibid.)

But as Mr. Cooley acknowledges, “The privilege issue is not Cooley’s fight, nor does he hold the privilege.” (Opposition at p. 8.) To date, Plaintiffs (the holders of any privilege) have not filed any motions with respect to Moi’s September 20, 2022 identification of potentially privileged documents—not even when they were represented by the same counsel as Mr. Cooley. DLA Piper was counsel for both Mr. Cooley and Plaintiffs until their December 8, 2022 motion to be relieved as counsel was granted on February 16, 2023. Plaintiffs were thereafter unrepresented only until filing a March 28, 2023 Substitution of Counsel. After Plaintiffs retained new counsel and indicated in their April 3, 2023 Joint Stipulation that they wanted the hearing on this motion to go forward, Mr. Cooley could have withdrawn his opposition or stipulated to a deposition date.

The Court therefore finds that Mr. Cooley acted without substantial justification in opposing this motion. Moi’s request for $3,605.00 in sanctions for fees and costs incurred in making the motion is granted. (See Code Civ. Proc., § 1987.2, subd. (a).)

Miles M. Cooley is also ordered to pay $3,605.00 to Moi for Moi’s reasonable expenses within 30 days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court