Universal Semiconductor, Inc. v. Vo, et al.		CASE NO. 114CV265548
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 20

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 Thursday 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 29 August 2014, the motion of defendant Tuoi Vo (“Defendant”) for a protective order was argued and submitted.  Plaintiff Universal Semiconductor, Inc. (“Plaintiff”) filed a formal opposition to Defendant’s motion in which it seeks monetary sanctions against Defendant.

Statement of Facts

According to the allegations of Plaintiff’s complaint, on 8 April 2014, Plaintiff and Universal Semiconductor Technologies, Inc. (“USTI”) entered into a written agreement whereby USTI authorized Plaintiff to move certain of its physical assets to Plaintiff’s facilities in San Jose and implement the closure of USTI’s Santa Clara facilities.  Defendant, a former employee of Plaintiff who continued to maintain an office at Plaintiff’s premises, learned of the agreement between Plaintiff and USTI and falsely represented during a 16 May 2014 meeting with USTI and Plaintiff’s President Vic Hejmadi that he had been charged by USTI with moving the assets at issue to China.  As a result of Defendant’s false representations, Plaintiff is unable to obtain the cooperation of USTI’s representatives in order to move the USTI assets to Plaintiff’s premises, impeding Plaintiff’s ability to meet its obligations under the 8 April agreement.

On 20 May 2014, Plaintiff filed this action against Defendant for intentional interference with economic relationship.

Discovery Dispute

On 8 July 2014, Plaintiff noticed Defendant’s deposition in this action.  During a subsequent phone call, counsel for Defendant told counsel for Plaintiff that he believed the deposition was premature and inappropriate in light of the status of a related lawsuit, Universal Semiconductor, Inc. v. Universal Semiconductor Technologies, Inc. (Super. Ct. Santa Clara County, No. 1-14-CV-267721) (the “USTI Action”).

In the USTI Action, which was filed on 9 July 2014, Plaintiff alleges that USTI breached its 8 April agreement with Plaintiff by selling all of the assets that were to have been moved to Plaintiff’s facilities to a buyer in China.  Plaintiff alleges in that action that it learned of USTI’s repudiation of its contract with Plaintiff during the same 16 May meeting with USTI and Defendant that is at issue in the instant lawsuit.  USTI has not yet appeared in the USTI Action.

In light of the USTI Action, counsel for Defendant proposed that Defendant’s deposition in this action be taken on the same date as his deposition in the USTI Action, with all parties from both actions present.  During their initial phone call, counsel for Plaintiff suggested that Defendant’s counsel provide him with a written request to that effect.  Defendant’s counsel emailed Plaintiff’s counsel a request on 28 July 2104, but on 29 July 2014, Plaintiff’s counsel telephoned Defendant’s counsel and informed him that Plaintiff would not agree to postpone Defendant’s deposition.  Defendant’s counsel responded that Defendant would seek a protective order from the Court.  Defendant served written objections to the deposition notice on 30 July 2014.

On 1 August 2014, Defendant filed the instant motion for a protective order.  On 15 August 2014, Plaintiff filed papers in opposition to Defendant’s motion.  On 22 August 2014, Defendant filed reply papers in support of the motion.

Discussion

        I.     Legal Standard

Before, during, or after a deposition, any party may move for a protective order.  (Code Civ. Proc. (“CCP”), § 2025.420, subd. (a).)  The court may make any order that justice requires to protect the party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including a protective order providing that the deposition be taken at a different time or on specified terms and conditions.  (CCP, § 2025.420, subds. (b)(2) and (b)(5).)

The party moving for a protective order bears the burden of demonstrating good cause for the order by explaining and justifying its objections. (See Fairmont Ins. Co. v. Super. Ct. (Stendell) (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

      II.     Analysis

Defendant contends that the Court should issue a protective order providing that he only be required to give one deposition covering both this action at the USTI Action, at a time when both Plaintiff and USTI can participate.  Plaintiff argues that the deposition in this action should proceed at this time without the need for USTI’s participation.

While Plaintiff weakly disputes this point, Defendant correctly notes that the factual allegations at issue in this action overlap with those in the USTI Action to a large extent, particularly with respect to the allegations involving Defendant, and the deposition notice served in this action contains some document requests that appear more relevant to the USTI Action than this one.  Nevertheless, the two actions remain separate, and there is no indication that a motion to consolidate them is pending or even contemplated.  Plaintiff is entitled to depose Defendant in this action regardless of whether it is ultimately entitled to do so in the USTI Action as well.

While the Court understands that Defendant will incur additional fees and costs if he is deposed for a second time in the USTI Action, the CCP recognizes that this may be necessary where a new party becomes involved in litigation at a later stage than the original parties.  (See CCP, § 2025.290, subd. (b)(6) [limitation to seven hours of testimony from a single deponent does not apply to a party who appears in the action after a deposition has concluded, and the new party may notice another deposition of the same deponent].)  Here, there is no indication that Plaintiff chose to file separate lawsuits against USTI and Defendant merely to impose expenses on Defendant.  It appears that any deposition of Defendant would be conducted locally, and Defendant does not identify any unusual burden or expense that would result if he is ultimately required to sit for two depositions.  Under the circumstances, Defendant has not established good cause for the entry of a protective order at this time.

Consequently, Defendant’s motion for a protective order is DENIED.

     III.     Request for Monetary Sanctions

Plaintiff requests monetary sanctions pursuant to CCP sections 2025.450, subdivision (g)(1) and 2025.480, subdivision (j).  As an initial matter, Plaintiff’s request is not code-compliant because Plaintiff fails to state the amount of sanctions it seeks and submit a declaration supporting that amount.  (See CCP, § 2023.040.)  Further, the provisions of the CCP cited by Plaintiff in support of its request pertain to motions other than a motion for a protective order.  (See CCP, §§ 2025.450 [motion to compel attendance at deposition], 2025.480 [motion to compel deposition answers or document production].)  Consequently, Plaintiff fails to justify its request for sanctions.

Plaintiff’s request for monetary sanctions is accordingly DENIED.

 

Conclusion and Order

Defendant’s motion for a protective order is DENIED.

Plaintiff’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara