LJC Media v. Yahoo! Inc.

LJC Media v. Yahoo! Inc.

CASE NO. 113CV246401

DATE: 10 July 2014

TIME: 9:00

LINE NUMBER: 32

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of Yahoo! Inc. (“Defendant”) to compel the deposition of LJC Media’s (“Plaintiff”) most qualified witness for 11 July 2014 was argued and submitted.  Plaintiff filed formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

I.             Background

This action pertains to a breach of contract to which Plaintiff refers as “just a collection case.”[3]. Plaintiff generated online traffic for Defendant’s network of advertisers from early 2010 through June of 2012.  Plaintiff alleges that Yahoo! failed to pay them for the final months of a contract in excess of $1.2 million.  NThe complaint was filed on 16 May 2013.

[s1] In April 2014, Plaintiff scheduled  depositions of[s2]  Ryan Booth, Jimmy Hsu, and Josh Cobb in Beverly Hills on the 13th, 14th, and 17th of May 2014.

On 8 April 2014, Defendant served a notice for the PMK deposition of Lorenzo Taddei (“Taddei”), who is considered LJC’s Person Most Qualified[s3] . Defendant initially requested the deposition take place on 22 April 2014. Plaintiff agreed to produce Taddei on 28 May 2014 for the deposition.

On 24 May, 2014, Plaintiff notified Defendant that they could not proceed with Ryan Booth’s scheduled deposition on 27 May 2014. Taddei’s deposition was also cancelled due to a conflict.

The trial date in this manner is set for 8 September 2014.  This Court notes that another discovery motion is pending for 25 July 2014.

Defendant filed a motion for summary judgment and then hearing is for 25 July 2104.

II.            Discovery Dispute

Lorenzo Taddei is an Italian citizen who resides in Singapore. he is unable to appear for deposition in persondo to business conflicts until 22 July 2014.  He

Plaintiff and Defendant failed to schedule a new date for Taddei’s deposition. Defendant’s counsel was available between June 23 and June 30. Taddei is currently in Europe and will not return to the U.S. until July 22nd.

Defendant asserts that it needs the deposition of Taddei is necessary to obtain testimony that may be necessary to use in a reply brief in support of its summary judgment motion which is due on 18 July 2014.

Taddei’s attorney states that Taddei can be made available by video conference. However, Defendant argues that the deposition will be document heavy and a video conference would be unduly burdensome since Defendant, Taddei and Plaintiff’s counsel are not in the same location.

III.           Discussion

Defendant requests an order setting the deposition of Taddei for 11 July 2014. Defendant cites Code of Civil Procedure § 2025.270, which states:

(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.

(b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, an oral deposition shall be scheduled for a date at least five days after service of the deposition notice, but not later than five days before trial.

(c) Notwithstanding subdivisions (a) and (b), if, as defined in Section 1985.3 or 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after issuance of that subpoena.

(d) On motion or ex parte application of any party or deponent, for good cause shown, the court may shorten or extend the time for scheduling a deposition, or may stay its taking until the determination of a motion for a protective order under Section 2025.420.

Defendant specifically cites subsection (d) to request “to shorten or extend the time for scheduling a deposition” for good cause shown. This is the incorrect authority on this matter. (Code of Civil Procedure § 2025.450.) Based on the arguments provided, Defendant is instead requesting a motion to compel a deposition. Since no date has been set for the new deposition, Defendant cannot request a shortening or extension of time.

Both parties cite Toyota Motor Corp. v. Superior Court (197 Cal.App.4th 1107), which refers to Codes of Civil Procedure §§ 2026.010 (depositions in other states) and 2027.010 (depositions in foreign nations). The Court of Appeals held that it was improper for the trial court to grant the motion to compel a[s4]  Japanese citizen to be deposed in California. (Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1126.)

A balancing test is required to determine whether courts should issue an order to compel a foreign individual to a deposition in California. (Id. at 1115.) Factors to be considered under Code of Civil Procedure § 2025.260, subsection (b)[s5]  include:

(1) Whether the moving party selected the forum.

(2) Whether the deponent will be present to testify at the trial of the action.

(3) The convenience of the deponent.

(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.

(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.

(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.

(7) The whereabouts of the deponent at the time for which the deposition is scheduled.

Plaintiff chose this forum in which to file his lawsuit.  As this Court understands, LJC, LLC is essentially a one-person corporation, that being Mr. Taddei.

This Court also has some thoughts about why this motion is even necessary, given the believe of Yahoo! that it would be able to prevail on a summary judgment motion without having taken the deposition of someone purportedly as important as is Mr. Taddei.  This Court has previously heard, on many occasions, the argument that the deposition is necessary to rebut anything he may say in his papers filed in opposition to the summary judgment motion.  However, Code of Civil Procedure, § 437c(h) and (i) have provisions which allow for continuances to conduct necessary discovery to challenge declarations.

Additionally, the court is unclear as to why a video deposition was impracticable, even if the deposition would be document heavy.  Defendant could take the deposition of Mr. Taddei anywhere and arranged to have a confederate present at the deposition “to keep everybody honest.” Documents can be scanned and transmitted electronically, and anything produced at the deposition could be scanned and transmitted electronically in the same manner.

IV.           Conclusion

NO TENTAIVE RULING



[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] Opposition to Defendant Yahoo!’s ex parte application to compel the deposition of Lorenzo Taddei, page 3, Line 8.


Relocating [s1]

 [s2]grammar

“Person Most Qualified” (PMQ) and “Person Most Knowledgeable” (PMK) are terms of art and should be used

 [s4]surplusage

 [s5]probably redundant

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