Case Name: Willow TV International, Inc. v. Elephant Capital PLC, et al.
Case No.: 2014-1-CV-266294

Defendant/cross-complainant Global Cricket Ventures Limited (“GCV”) moves to compel the attendance at deposition of the person most knowledgeable (“PMK”) at Times Internet Inc. (“Times Internet”). Plaintiff Willow TV International, Inc. (“Willow”) moves to compel defendant/complainant Elephant Capital PLC’s (“Elephant”) agent Vikram Lall to attend his deposition.

I. Factual Background

This is an action for breach of contract and unfair competition. Willow is one of the premier broadcasters of cricket events in the United States and Canada, producing and distributing and HD channel dedicated to the sport. (Complaint, ¶ 5.) GCV is a cricket-focused digital media and broadcasting company of which Elephant owns, or once held, a 51% interest. (Id., ¶ 7.) In January 2011, Elephant entered into an agreement (the “Purchase Agreement”) to sell its interest in GCV to cross-defendant Keraton Holdings Limited (“Keraton”). (Id., ¶ 8 and Exhibit 1.) Pursuant to the Purchase Agreement, Keraton was to make a specified cash payment which assumed that GCV held a certain amount of cash; if GCV did not actually possess that amount, the payment was to be reduced by the amount of the shortfall. (Id., ¶ 9.) The payment was to be further reduced by any of GCV’s outstanding contractual obligations.

In February 2011, Elephant provided Keraton with a list of GCV’s liabilities so that it could calculate any reduction in payment. (Complaint, ¶ 13.) However, shortly thereafter, GCV became involved in multiple lawsuits and disputes that rendered uncertain its liabilities and assets and thus delayed Keraton’s payments. (Id., ¶¶ 14-24.) By the time the third-party disputes had been resolved and GCV’s assets and liabilities more firmly realized, Elephant breached the Purchase Agreement by failing to convey its interest to Keraton. (Id., ¶¶ 25-29.) In March 2014, Keraton assigned all of its rights under the Purchase Agreement to Willow. (Id., ¶ 30.)

On January 9, 2014, Willow filed the Complaint asserting the following causes of action: (1) breach of contract (against Elephant); (2) declaratory relief (against all defendants); (3) accounting (against all defendants); (4) unjust enrichment/restitution (against GVC); and (5) unfair business practices (against all defendants).

On September 4, 2014, GCV filed a cross-complaint asserting claims against Willow and Keraton for: (1) breach of contract; (2) unfair competition; and (3) declaratory relief. GVC alleges that Willow filed its lawsuit in an attempt to force GVC to abandon a lawsuit it has pending in London against Willow’s principals, Vijay Srinivasan and Sameer Mehta, that it breached other agreements by filing suit, and that the Purchase Agreement is not enforceable.

Keraton filed its own cross-complaint against GCV on December 10, 2014.
II. Discovery Disputes

A. GCV’s Motion to Compel Attendance at Deposition of Time Internet’s PMK

On June 2, 2015, GCV served non-party Times Internet with a deposition subpoena for the production of business records with a production date of July 30, 2015. (See Declaration of Nitoj Singh in Support of Opposition to Motion to Compel Attendance at Deposition (“Singh Decl.”), ¶ 2 and Exhibit 1.) A week later, on June 9, 2015, GCV served non-party Times Internet with a subpoena for the deposition of the company’s PMK, noticing the deposition for July 30, 2015. (Declaration of Joshua Liston in Support of Motion to Compel Attendance at Deposition (“Liston Decl.”), ¶ 5 and Exhibit 4.)

On September 30, 2015, Times Internet served GCV with objections to the foregoing subpoenas. (Singh Decl., ¶ 5 and Exhibit 4.) Between November 16 and November 18, 2015, counsel for the parties exchanged several emails in an effort to resolve disputed issues relating to the deposition subpoenas. The parties’ efforts were unsuccessful. Consequently, on January 19, 2016, GCV filed the instant motion to compel the deposition of Times Internet’s PMK. Times Internet filed its opposition on March 2, 2016. On March 22, 2016, GCV filed its reply.

B. Willow’s Motion to Compel Vikram Lall’s Attendance at Deposition

On October 8, 2014, Willow served GCV and Elephant (collectively, “Defendants”) with a notice of deposition of Elephant’s agent, Vikram Lall (“Lall”). (Declaration of Nitoj Singh in Support of Willow’s Motion to Compel Attendance at Deposition (“Singh Decl.”), ¶ 2 and Exhibits 1 and 2.) The deposition was noticed for December 15, 2014. (Id.)

On November 4, 2014, Willow’s counsel sent an email to opposing counsel requesting confirmation that Lall would be produced for his noticed deposition. (Singh Decl., ¶ 4 and Exhibit 4.) Defendants’ counsel responded to the email that day, requesting that opposing counsel provide dates when the witnesses could be deposed where they work or reside. (Id., ¶ 5 and Exhibit 5.)

On November 25, 2014, Defendants’ counsel sent another letter to Willow’s counsel responding to issues set forth in his November 4th letter. (Singh Decl., ¶ 6 and Exhibit 6.) In particular, counsel indicated that Defendants were waiting on dates that Willow could depose the witnesses where they work or live, and stated that Lall was based in Edinburgh. (Id.)

On December 15, 2014, having not been informed that Lall would not attend his deposition, counsel for Willow arrived at the location listed in the October 8th deposition notice and waited for him to appear, which he did not. (Singh Decl., ¶ 8.) Consequently, on January 21, 2016, Willow filed the instant motion to compel Lall’s attendance at deposition. On March 2, 2016, Elephant filed its opposition. Willow filed its reply on March 22, 2016.

III. Discussion

A. GCV’s Motion to Compel Attendance at Deposition of Time Internet’s PMK

GCV moves to compel the deposition of Times Internet’s PMK pursuant to Code of Civil Procedure section 2025.450. This code section, however, is inapplicable to the deposition subpoena at issue because it relates to the failure of a party deponent to appear at their deposition and Times Internet is a non-party. The relevant statutory authority for GCV’s request is Code of Civil Procedure section 2025.480 (“Section 2025.480”), which applies to all depositions, including the depositions of parties and non-parties alike, and the Court will construe the instant motion as one brought pursuant to this code section. Section 2025.480 provides, in pertinent part, that:

If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(Code Civ. Proc., § 2025.480, subd. (a).)

The motion must be made no later than 60 days after the completion of the deposition record, and must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).)

The Court notes that while GCV identifies Satyan Gajwani (“Gajwani”) as Times Internet’s PMK and makes arguments in its supporting memorandum about why it is necessary to depose him in particular, the deposition subpoena at issue is not directed at Gajwani, specifically, only Times Internet’s PMK. Consequently, any order in GCV’s favor would order Times Internet’s PMK to attend deposition, and not Gajwani in particular, though that may be the same person.

1. Timeliness

As an initial matter, Willow asserts that GCV’s motion is untimely and therefore must be denied. According to Willow, GCV was required, pursuant to subdivision (b) of Section 2025.480, to file this motion within 60 days of the service of Times Internet’s objections to the deposition subpoenas.

As set forth above, motions made pursuant to Section 2025.480 must be made “no later than 60 days after the completion of the record of the deposition ….” (Code Civ. Proc., § 2025.480, subd. (b).) The meaning of the phrase “completion of the record of the deposition” is not entirely settled. Per the case of Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, where a subpoena for business records is involved, the service of objections to that subpoena triggers the 60-day time period because a response to the subpoena is a “record of the deposition.” In reaching this conclusion, the Unzipped court reasoned that it was improper to equate “the record” with “transcript” because a subpoena seeking only business records would not involve testimony and “the record” is “broader in scope, meaning a documentary account of some act or event designed to memorialize what was done.” (Unzipped, supra, 156 Cal.App.4th at 132.) If a partial response or objections are received, the court reasoned, the subpoenaing party has “all the information it needs to prepare a motion to compel” and therefore the 60-day time period began to run at that time. (Id. at 133.)

This Court is not aware of any cases which discuss the meaning of “completion of the record of the deposition” where the subpoena at issue only seeks oral testimony and the deposition has not taken place, as is the situation here. GCV argues that it is impossible to have a completed record in such a circumstance, and therefore Unzipped and a similar case, Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, are not controlling with regard to subpoenas for oral testimony. But this argument ignores the broad meaning of the term “record” as articulated in Unzipped and that court’s emphasis on the fact that once a party has been served with objections to a subpoena, it has sufficient information to prepare a motion to compel, triggering the 60-day limitation. If a party receives objections to a deposition subpoena for oral testimony, there is no reason not to treat that response as the “record” for the purposes of determining the timeliness of a motion brought pursuant to Section 2025.480 as the court would the objections to a deposition subpoena for the production of business records. Were the Court to accept the argument proffered by Willow, it would essentially be finding obsolete the time limit of Section 2025.480 for motions to compel where no deposition has taken place and that such a motion could be brought at any time. The Court is not prepared to make such a finding.

Here, Times Internet served objections to both of the deposition subpoenas at issue. Upon receipt of the objections to the subpoena seeking oral testimony for Times Internet’s PMK, GCV had, as in Unzipped, the information necessary to prepare a motion to compel the attendance of that individual at deposition. Consequently, the 60-day time limit began to run on that date, September 30, 2015, and concluded (accounting for the extension for service by mail) on December 4, 2015. The instant motion was not filed until January 19, 2016, well over a month later, and is therefore untimely. Accordingly, GCV’s motion to compel attendance at deposition is DENIED.

2. Times Internet’s Request for Monetary Sanctions

In connection with its opposition to GCV’s motion to compel, Times Internet requests that the Court impose sanctions against GCV in the amount of $2,920 pursuant to Code of Civil Procedure section 2023.010, which defines discovery conduct that is subjected to sanctions. Times Internet, however, does not articulate the specific misuse of the discovery process upon which it bases its request for sanctions, and therefore the request is DENIED.

B. Willow’s Motion to Compel Vikram Lall’s Attendance at Deposition

Willow moves for an order compelling Lall to attend his deposition pursuant to Code of Civil Procedure section 2025.450, which provides that:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party … without having served a valid objection under Section 2025.410, fails to appear for examination … the party giving notice may move for an order compelling the deponent’s attendance and testimony.

(Code Civ. Proc., § 2025.450, subd. (a).)

Willow asserts that it is entitled to such an order because Lall failed to appear at his properly noticed deposition and Elephant did not serve any objections to the deposition notice. In opposition, Elephant contends that the Court lacks the authority to compel Lall, a non-California resident, to attend his deposition and Willow waived any argument regarding Elephant’s waiver of objections to the deposition notice by cancelling the deposition and failing to move for an order pursuant to Code of Civil Procedure section 2025.260, subdivision (c).

1. Waiver of Objections

Willow contends that Elephant waived any objections it may have had to the Lall deposition notice because it never served written objections as required under the Code of Civil Procedure.

Code of Civil Procedure section 2025.410, subdivision (a) provides that “[a]ny party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled.” Article 2 includes Code of Civil Procedure sections 2025.250-2025.260, which set forth the permissible locations for a deposition in this state. Thus, an objection based on the noticed location of a deposition under Code of Civil Procedure sections 2025.250-260 or 2027.010 is waived unless it was served in conformity with Code of Civil Procedure section 2025.410. (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 295, fn. 22.) Waiver occurs regardless of whether the deponent is a resident of California. (Id., at 295 [finding waiver where a party-deponent claimed to reside of this state].)

In the supporting declaration of its counsel, GCV contends that it emailed opposing counsel written objections to the deposition notice for Lall on November 4 and 25, 2014, but reviewing the actual contents of these communications, neither can be construed as such. The emails do not include the word “objection” or allude to it, nor do they specify any errors or irregularities in the deposition notice. (Singh Decl., ¶¶ 5, 6 and Exhibits 5 and 6.) Code of Civil Procedure section 2025.410, subdivision (a), requires that the objecting party specify the error or irregularity in the written objection and having not done so, GCV has waived these objections.

Additionally, even if the Court could construe the emails as written objections, they were never validly served because Willow never consented to electronic service. In order to be effective, email service of objections under Code of Civil Procedure section 2025.410 must conform to the requirements of Code of Civil Procedure section 1010.6 and the California Rules of Court. (Code Civ. Proc., §§ 2016.050 [“Section 1013 applies to any method of discovery”], 1013, subd. (g) [permitting email service as authorized by Code of Civil Procedure section 1010.6 and the California Rules of Court].) Code of Civil Procedure section 1010.6 and California Rules of Court, rule 2.251(b) only authorize service by email where the party to be served agreed to accept email service and filed a notice of consent to electronic service with the court. Willow never consented to electronic service and therefore even if they could be construed as such, GCV’s counsel’s emails did not effectuate service of objections under Code of Civil Procedure section 2025.410.

Elephant argues, unpersuasively, that Willow waived its ability to make the foregoing argument by effectively cancelling Lall’s deposition on December 15, 2014. Elephant asserts that the deposition was effectively cancelled because Willow admittedly did not have a court reporter present and was therefore unprepared to take his testimony. Elephant cites no authority for the proposition that Willow’s conduct on the day of the noticed deposition limits its ability to make arguments regarding the validity of Elephant’s own purported objections, which are completely unrelated. Consequently, this argument is without merit.

Accordingly, any objection based on defects in the deposition notice, including any objection to the location of the deposition under Code of Civil Procedure sections 2025.250- 2025.260 or 2027.010, has been waived.

2. Court’s Authority to Compel Lall to Appear

In opposing Willow’s motion, Elephant’s principal argument is that the Court lacks the authority to compel Lall, a non-resident of California, to attend his deposition. Generally, a court’s authority to compel a deponent to appear for a deposition in California is limited by the deponent’s place of residence. (See Code Civ. Proc., § 1989 [“[a] witness … is not obligated to attend as a witness before any court, judge, justice, or any other officer, unless the witness is a resident within the state at the time of service”].) This limitation has been held to apply to witnesses obligated to give testimony by deposition. (See Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1110 [stating that the residency limitation of Code of Civil Procedure section 1989 “applies not only to trials, but also to discovery”].) Willow does not dispute that Lall is not a California resident, and therefore the Court’s ability to compel him to attend his deposition in the state appears to be completely extinguished.

Willow nevertheless argues to the contrary, citing to Glass v. Superior Court (1988) 204 Cal.App.3d 1048 for the proposition that a non-resident can be compelled to appear for a deposition in California under Code of Civil Procedure section 2025.260. In Glass, the court held that it had the authority to compel the depositions of members of the plaintiff corporation’s management, who were Indiana residents, in California. The court reasoned that Code of Civil Procedure sections 2025.250 and 2025.260 “[act] as an implied partial repeal” of Code of Civil Procedure section 1989, a conclusion based in large part on the California Supreme Court’s decision in Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754.

Willow’s reliance on Glass is misplaced. The court in Toyota Motor Corp. considered and explicitly rejected the reasoning set forth in Glass, finding that the Glass court “misconstrued the Supreme Court’s language in Twin Lock” and did not thoroughly consider the pertinent legislative history, which supported the contrary holding that Code of Civil Procedure sections 2025.250 and 2025.260 were limited by Code of Civil Procedure section 1989. (See Toyota Motor Corp., supra, 197 Cal.App.4th at 1113, 1123-1124.) Moreover, as the court noted, Glass “has been on the books for 22 years and has not been cited in any published decision,” and this Court would be loath to follow the same in light of the thorough and well-reasoned decision of the court in Toyota. (Id. at 1124.) Lall’s apparent willingness to appear and testify at trial is irrelevant to the issue of whether the Court has the authority in the first instance to compel him to attend his deposition in California.

The Court therefore finds that Toyota Motor Corp.is controlling and thus Willow’s motion to compel Lall’s attendance at deposition is DENIED.

3. Requests for Sanctions

Both parties request the imposition of monetary sanctions.

a. Willow’s Request

In support of its motion, Willow requests that the Court impose monetary sanctions against Elephant in the amount of $970 pursuant to Code of Civil Procedure section 2025.250, subdivision (g)(1), which provides that that if a motion to compel a deponent to attend his or her deposition is granted, the court shall impose monetary sanctions in favor of the party who noticed the deposition unless it finds that the one subject to the sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust. Here, the motion is denied, and therefore Willow is not entitled to sanctions.
b. Elephant’s Request

In connection with its opposition, Elephant requests that the Court impose monetary sanctions against Willow in the amount of $2,200 pursuant to Code of Civil Procedure section 2025.410, subdivision (d), which provides that the court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice. Such a motion is not at issue here, and therefore this code section provides no basis for the Court to impose sanctions against Willow.

To the extent that Elephant is seeking sanctions pursuant to Code of Civil Procedure section 2025.260, subdivision (d), which is not entirely clear as this section is cited in Elephant’s papers but not expressly identified as the basis for its request for sanctions, the request is denied. This code section applies to motions seeking an order that a deponent attend for deposition at a place that is more distant than permitted under Code of Civil Procedure section 2025.250; the instant motion does not qualify as such. Consequently, this code section also does not provide a basis for the Court to impose sanctions against Willow.

In accordance with the foregoing, Elephant’s request for sanctions is DENIED.

IV. Conclusion and Order

GCV’s motion to compel attendance at deposition of Time Internet’s PMK is DENIED.

Times Internet’s related request for sanctions is DENIED.

Willow’s motion to compel Lall’s attendance at deposition is DENIED.

Willow’s related request for sanctions is DENIED.

Elephant’s related request for sanctions is DENIED.