Pizana v. Sanmedica International LLC ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 RAUL PIZANA, individually and on No. 1:18-cv-00644-DAD-SKO behalf of all others similarly situated, 7 ORDER GRANTING IN PART PLAINTIFF’S Plaintiff, MOTION TO COMPEL RESUMPTION OF 8 THE DEPOSITION OF SANMEDICA v. INTERNATIONAL 30(b)(6) (GINA DAINES) 9 SANMEDICA INTERNATIONAL, LLC, (Doc. 111) 10 and DOES 1 through 10, inclusive, 11 Defendants. 12 13 This matter is before the Court on Plaintiff Raul Pizana’s “Motion to Compel 14 Resumption of the Deposition of SanMedica International 30(b)(6) (Gina Daines)” (the “Motion 15 to Compel”). (Doc. 111.) Plaintiff and Defendant SanMedica International, LLC filed their joint 16 statement directed to the Motion to Compel (the “Joint Statement”), as required by this Court’s 17 Local Rule 251, on December 16, 2020. (Doc. 114.) The Court reviewed the parties’ papers and 18 all supporting material and found the matter suitable for decision without oral argument. The 19 hearing set for December 23, 2020, was therefore vacated. (Doc. 116.) 20 Having considered the Joint Statement and its exhibits, and for the reasons set forth 21 below, Plaintiff’s Motion to Compel will be granted in part. 22 I. BACKGROUND 23 Plaintiff Raul Pizana filed this putative class action on May 9, 2018, challenging the 24 advertising and efficacy of SeroVital-hgh (the “Product”), a purported Human Growth Hormone 25 (“HGH”) supplement produced by Defendant that was purchased by Plaintiff in early 2017. 26 (Doc. 53, Second Am. Compl. (“SAC”) at ¶¶ 1, 6, 9.) The Second Amended Complaint, filed on 27 November 13, 2019, asserts three causes of action: (1) a violation of California Civil Code § 28 1750, et. seq., the Consumer Legal Remedies Act (“CLRA”); (2) a violation of California 1 Business & Professions Code § 17500, et. seq., the False Advertising Law (“FAL”); and (3) a 2 violation of California Business & Professions Code § 17200, et. seq., the Unfair Competition 3 Law (“UCL”). (SAC at ¶¶ 60–121.). 4 The crux of Plaintiff’s suit is that Defendant’s Product, despite being marketed as an 5 HGH supplement that can “make users look and feel decades—not years, but DECADES— 6 younger,” is “no more effective for its advertised purposes than a placebo[] and is therefore 7 worthless to California consumers[.]” (SAC at ¶¶ 1–5.) Specifically, Plaintiff alleges: 8 (1) [T]he Product cannot increase HGH levels whatsoever, let alone by 682%; (2) the Product does not reduce wrinkles, “decrease[] body fat,” “increase[] lean 9 muscle mass,” strengthen bones, “improve[] mood,” “heighten[] sex drive,” or make “users look and feel decades . . . younger” because the oral administration 10 of amino acids like SeroVital does not increase growth hormone bioactivity; (3) there is no causal link between increased HGH levels and most of the claimed 11 uses, including wrinkle reduction, increased lean muscle mass, stronger bones, improved mood, [or] heightened sex drive; and (4) if SeroVital were to increase 12 HGH levels as claimed, it would cause significant health risks. 13 (Id. at ¶ 2.) 14 Plaintiff seeks to assert claims on behalf of a proposed class defined as: 15 All persons residing in California who purchased the Product for personal use and not for resale during the time period May 9, 2014, through the present. Excluded 16 from the Class are Defendant’s officers, directors, and employees, and any individual who received remuneration from Defendant in connection with that 17 individual’s use or endorsement of the Product. 18 (SAC ¶ 50.) On March 6, 2020, the Court entered a scheduling order that bifurcated merits from 19 class certification discovery and set a deadline of December 18, 2020, for class discovery only.1 20 (See Doc. 74.) 21 On November 19, 2020, the parties commenced a remote deposition by videoconference 22 of Gina Daines (“Daines”), one of Defendant’s corporate designees pursuant to Federal Rule of 23 Civil Procedure 30(b)(6). (Volume I of Deposition Transcript of Gina Daines (“Vol. I”) at 6 24 (filed under seal); see Doc. 120, sealing order.) The deposition began at 10:17 a.m. and 25 concluded at 5:50 p.m. after reported difficulties with the document sharing program the parties 26 27 1 The parties agreed in their joint scheduling report that discovery in this case should be bifurcated. (See Doc. 71 at 28 5.) 1 used to display exhibits.2 (Vol. I at 6, 207–10.) The parties agreed to resume the deposition of 2 Daines on a later date. (Id. at 209–10.) 3 On November 30, 2020, the deposition of Daines recommenced at 8:12 a.m. (Volume II 4 of Deposition Transcript of Gina Daines (“Vol. II”) at 218 (filed under seal); see Doc. 120.) The 5 questioning of Daines concluded at 9:43 a.m. after counsel for Defendant stated that Daines had 6 given seven hours of testimony on the record, as allotted by the Federal Rules of Civil Procedure. 7 (Vol. II at 267–70.) Counsel for Plaintiff responded that at least an hour during the first 8 deposition had been committed to dealing with technological difficulties “and/or argument 9 against counsel,” so additional time was warranted. (Id. at 267.) 10 The parties subsequently conferred telephonically and via email regarding more time for 11 Plaintiff to question Daines. (Doc. 114 at 4, 6, 7.) Defendant offered Plaintiff an additional hour 12 to depose Daines, which Plaintiff refused. (Doc. 114 at 4, 7.) On December 2, 2020, Plaintiff 13 filed the instant motion. (Doc. 111.) 14 II. DISCUSSION 15 Plaintiff moves to compel the resumption of the deposition of Daines, contending that he 16 requires more time to question Daines regarding the advertising, labeling, and packing of the 17 Product, due to technological difficulties and “Defendant’s counsel’s incessant argument and 18 obstruction” during the first deposition. (Docs. 111 & 114.) Federal Rule of Civil Procedure 19 30(d)(1) provides: 20 Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 21 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any circumstance impedes or delays the examination. 22 Fed. R. Civ. P. 30(d)(1). A party seeking a court order to extend the deposition beyond seven 23 hours must show “good cause.” See Thomas-Young v. Sutter Cent. Valley Hosps., No. 1:12–CV– 24 01410–AWI–SKO, 2013 WL 3054167, at *2 (E.D. Cal. June 17, 2013); Finjan, Inc. v. Eset, 25 LLC, No. 17CV183 CAB (BGS), 2020 WL 7396551 (S.D. Cal. Dec. 16, 2020) (noting that the 26 27 2 Multiple breaks, some due to technological difficulties, were taken off the record throughout the day. (See Vol. I 28 at 18, 95, 97–98, 129, 135, 162.) 1 Rule 30 Advisory Committee’s notes require good cause to justify a court order expanding the 2 seven-hour time limit). 3 The Court has reviewed the transcript of the deposition and finds that defense counsel’s 4 objections were generally in accordance with Federal Rule of Civil Procedure 30(c)(2)3, so no 5 additional time is warranted on that basis. Both parties agree, however, that there were 6 technological difficulties impeding the initial examination of Daines (see Doc. 114 at 3, 5), and 7 the Court finds this to be good cause to grant Plaintiff additional time. (See Rouviere v. DePuy 8 Orthopaedics, Inc., 471 F. Supp. 3d 571, 575 (S.D.N.Y. 2020) (granting one extra hour to 9 conduct a Rule 30(b)(6) deposition in anticipation of “delays during the deposition in the 10 handling of exhibits by the witness and counsel”). Plaintiff does not specify how much more 11 time he needs to complete the deposition, but based on the cases to which Plaintiff cites, he 12 appears to suggest five additional hours. (See Doc. 114 at 12 (citing Kress v. PriceWaterhouse 13 Coopers, LLP, No. 2:08–cv–0965 LKK AC, 2013 WL 2421704, at *5 (E.D. Cal. June 3, 2013); 14 Rubin-Knudsen v. Arthur J. Gallagher & Co., No. CV 18–6227–JGB (SPx), 2020 WL 2477687, 15 at *3–4 (C.D. Cal. Jan. 24, 2020); Mattel, Inc. v. MGA Entm’t, Inc., No. CV049049DOCRNBX, 16 2011 WL 13128607, at *1 (C.D. Cal. Jan. 18, 2011)).) 17 The Court finds five additional hours to be excessive and will instead grant Plaintiff an 18 additional one-and-a-half hours to complete his deposition of Daines due to time lost to technical 19 difficulties. In addition to the issue with displaying exhibits that ultimately led to the termination 20 of the first deposition (Vol. I at 203–09), the Court notes ten instances where a party’s 21 video/audio either froze or cut out, thus requiring questions and statements to be repeated (see 22 Vol. I at 17–18, 38, 41, 60, 97, 115, 123, 124–25, 130, 134). As the parties’ window for class 23 certification discovery closed on December 18, 2020 (see Doc. 74), the Court will reopen 24 discovery for the limited purpose of completing the deposition of Daines. 25 /// 26 27 3 Federal Rule of Civil Procedure 30(c)(2) provides in part: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary 28 to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” 1 III. CONCLUSION AND ORDER 2 Based on the foregoing, it is hereby ORDERED as follows: 3 1. Plaintiff’s Motion to Compel (Doc. 111) is GRANTED IN PART; 4 2. Class certification discovery is reopened to February 12, 2021, for the limited 5 purpose of allowing Plaintiff one-and-a-half hours to resume and complete the 6 deposition of Gina Daines; and 7 3. The parties are directed to meet and confer, and agree on a date for Daines’ 8 deposition, to be taken on or before February 12, 2021. 9 IT IS SO ORDERED. 10 Sheila K. Oberto 11 Dated: January 14, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28