Case Number: BC567940 Hearing Date: March 19, 2018 Dept: 47

Jong W. Park v. Khaled M. Ahmed

MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

MOVING PARTY: Defendants Sandra Cervantes, Judith Machado, MACCA Corporation, M&K General Merchandise, Broadway Capital and Defendant/Cross-Complainant Khaled M. Ahmed

RESPONDING PARTY(S): Cross-Defendant Henry R. Miller

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant made several misrepresentations in connection with the sale of a cigarette and tobacco business to Plaintiff.

Defendants Sandra Cervantes, Judith Machado, MACCA Corporation, M&K General Merchandise, Broadway Capital and Defendant/Cross-Complainant Khaled M. Ahmed move to compel Cross-Defendant DMY Far East Enterprises, Inc. to appear and testify at deposition and to produce documents requested in the deposition notice, as well as for monetary sanctions against DMY and its principal, Cross-Defendant Henry Miller.

TENTATIVE RULING:

Defendants Sandra Cervantes, Judith Machado, MACCA Corporation, M&K General Merchandise, Broadway Capital and Defendant/Cross-Complainant Khaled M. Ahmed’s motion to compel the deposition of Cross-Defendant DMY Far East Enterprises, Inc. is GRANTED.

Because Defendant did not demonstrate good cause, no order compelling these document categories will issue.

Defendants’ request for sanction is GRANTED IN PART in the amount of $2,560, which the Court finds to be the reasonable amount of attorney’s fees and costs incurred in bringing this motion. Sanctions are imposed against DMY and its principal Cross-Defendant Henry Miller, jointly and severally.

DISCUSSION

Motion To Compel Deposition

Defendants Sandra Cervantes, Judith Machado, MACCA Corporation, M&K General Merchandise, Broadway Capital and Defendant/Cross-Complainant Khaled M. Ahmed move pursuant to CCP § 2025.450 to compel Cross-Defendant DMY Far East Enterprises, Inc. to appear and testify at deposition and to produce documents requested in the deposition notice. On March 5, 2018, Defendants filed a Notice of Entry of Order Granting Relief From Automatic Stay, attaching a copy of the Bankruptcy Court’s February 13, 2018 Order Granting Motion For Relief From Stay. Accordingly, the Court will proceed to address the motion on the merits.

CCP § 2025.450 provides in pertinent part:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(Bold emphasis added.)

A meet and confer declaration was submitted, reflecting moving party’s attempt to meet and confer. See Bryner Decl., ¶¶ 7 – 11.

On May 26, 2016, MACCA Corporation was substituted in as Doe 1; Broadway Capitol, LLC was substituted in as Doe 2; M & K General Merchandise, LLC also known as M & K General Merchandise LLC also known as M & K General Merchandise also known as M&K General Merchandise, a California Limited Liability Company was substituted in as Doe 3; Sandra Cervantes was substituted in as Doe 4; and Judith D A Machado was substituted in as Doe 5. These Defendants had not yet appears in this action at the time Henry Miller was deposed on June 28, 2016 by Defendant/Cross-Complainant Khaled M. Ahmed. See Declaration of M. Candice Bryner, ¶¶ 2 – 4. Thus, they had a right to take the deposition of Miller, either individually or as the personal most knowledgeable on behalf of Cross-Defendant DMY Far East Enterprises, Inc.

(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(b) This section shall not apply under any of the following circumstances:

. . .

(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.

(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.

CCP § 2025.290.

Because Cross-Defendant DMY Far East Enterprises, Inc. did not produce a person most knowledgeable on December 12, 2017, and there is no persuasive reason for such refusal, moving parties are entitled to an order compelling the deposition of said PMK.

However, in the motion, moving parties did not make a fact-specific showing of good cause for production of documents set forth in the Notice of Deposition. See Exhibit 2.

Even were we to ignore that the statements purporting to justify an order compelling Calcor to produce its documents and other materials are unverified, they still fail. There is an absence of specific facts relating to each category of materials sought to be produced; the justifications offered for the production are mere generalities. The very vice of the subpoena’s promiscuity is well illustrated by Thiem’s inability to provide focused, fact-specific justifications for its demands.

Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224 (bold emphasis and underlining added).

Because Defendant did not demonstrate good cause, no order compelling these document categories will issue. This does not mean that the PMK need not produce any documents at the deposition. Documents will need to be produced per the notice. The Court is merely not “ordering” such production at this time. It could do so in the future, if and when a proper motion is brought before it.

Plaintiff’s deposition is to occur within 20 days.

Sanctions

Defendants seek $4,113.00 against DMY and its principal Cross-Defendant Henry Miller. The Court agrees with Miller that the costs of attending the deposition should not be recovered, because Defendant’s counsel knew that no one for DMY would be appearing. Byrner Decl., ¶ 8. Defendants’ request for sanction is GRANTED IN PART in the amount of $2,560, which the Court finds to be the reasonable amount of attorney’s fees and costs incurred in bringing this motion. Sanctions are imposed against DMY and its principal Cross-Defendant Henry Miller, jointly and severally, and are to be paid to Defendants’ counsel within 20 days.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: March 19, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court