Case Number: BC590784 Hearing Date: June 27, 2018 Dept: 61

Plaintiff’s Motion to Compel the Further Deposition of Defendant Brent Lindenfeld, in his capacity as PMK, and the deposition of Brent Lindenfeld, as an individual, is GRANTED.

Upon the appearance of Brent Lindenfeld to the deposition, defense counsel limited the deposition to an appearance in the capacity as Person Most Knowledgeable, with an agreement to address the individual deposition at a later time. [Dorny Decl., Ex. 1, 8:1-9:4.] Upon the completion of the second day of the PMK deposition, Defendant refused to appear further. [Kaplan Decl., Ex. K.]

PMK depositions have no seven hour statutory time limit, as present in individual depositions. (Code Civ. Proc., §§ 2025.230, 2025.290, subd. (b)(5).) Defendant unilaterally ended the deposition after the completion of the second day, and now argues in opposition that termination was justified on grounds that the questions improperly addressed topics directed towards Brent Lindenfeld in his individual capacity. Defendant cites to the deposition transcript.

The citation to the transcript in no way justifies the unilateral cancellation of the deposition. The parties agreed that defendant agreed to object on question-by-question basis, as needed. If Defendant believed the deposition was improper, Defendant was obligated to seek a protective order. (Stewart v. Colonial Western Agency (2010) 87 Cal.App.4th 1006, 1015.)

The cancellation of the PMK deposition in no way relieves Defendant of the obligation to appear in the individual capacity either. The new argument regarding Brent Lindenfeld as an apex level employee lacks support. Brent Lindenfeld is named as an individual defendant and one of the parties responsible for the wrongful removal of confidential and proprietary information. Whether or not Brent Lindenfeld is an apex level employee in his new company does not bar questioning regarding his prior conduct. Defendant offers no evidence that the deposition will involve questions beyond the operational knowledge of Brent Lindenfeld. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287.)

Defendant is ordered to complete his deposition as PMK and appear for his individual deposition for a period up to seven hours. (Code Civ. Proc., §§ 2025.290, subd. (a), 2025.450.)

Sanctions are mandatory. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Defendant did not act with substantial justification in refusing to finish the PMK deposition, proceed with the individual deposition or seek a protective order. Plaintiff moves for $4,300 in sanctions based on ten hours of work at a billing rate of $425/hour. The request is excessive. Sanctions in the amount of $2,125 representing five hours of work is awarded.

Counsel for Plaintiff to provide Notice.