MOSLEY, et al. vs MCAFEE, LLC

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Defendant McAfee, LLC’s (“Defendant”) motion to compel the depositions of Plaintiffs Aaron Mosley, Angel Hernandez, Beth Bruns, Lisa Alexander, Markieda Hollier, Ross Jones, Ryan Willoughby, Sabrina Machari, Sydney Pearl, and Tameckia Cook (collectively, “Plaintiffs”) is UNOPPOSED and ruled upon as follows.

Defendant’s request for judicial notice is unopposed and granted.

Plaintiffs initiated this action on August 13, 2024. Plaintiffs allege that Defendant and its affiliates sent them at least 288 unsolicited spam emails in violation of Business & Professions Code section 17529.5. Defendant filed its answer on October 10, 2024.

Defendant’s counsel Benjamin Williams declares that he tried to schedule Plaintiffs’ deposition for two months by reaching out to Plaintiffs’ counsel, Rockford Hearn, but Mr. Hearn ignored Mr. Williams’ attempts. Thus, on January 17, 2025, Defendant served deposition notices for each plaintiff, with the depositions scheduled for separate dates between February 24 and March 14, 2025 “at a mutually agreeable location.” (Williams Decl., Exh. B.) On February 17, 2025, Defendant served amended deposition notices for each plaintiff that were identical to the prior

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 06/09/2025 Hearing on Motion to Compel Depositions of Plaintiffs in Department 54

notices, including the dates, except the amended notices included the address where the depositions would occur. (Williams Decl., Exh. C.) Mr. Hearn did not respond did not respond to the correspondence serving the deposition notices or the amended deposition notices. Mr. Hearn also did not serve any objections to the deposition notices.

On January 22, 2025, Mr. Williams sent Mr. Hearn an email notifying him that his “team [was] also making travel plans for the depositions we noticed for February and March” and requesting that Mr. Hearn advise him if Plaintiffs did not intend to go forward with the depositions. (Williams Decl., Exh. A, p. 5.) When Mr. Williams served the amended deposition notices, he ended his email stating, “See you next week.” (Williams Decl., Exh. A, p. 6.)

On February 24, 2025, Plaintiff Aaron Mosley and Mr. Hearn failed to appear for Mr. Mosley’s deposition. On February 25, 2025, Plaintiff Angel Hernandez and Mr. Hearn failed to appear for Mr. Hernandez’s deposition. Defendant took a notice of nonappearance for both Mr. Mosley and Mr. Hernandez. After Mr. Hernandez failed to appear for his deposition, Mr. Williams emailed Mr. Hearn and stated that Defendant “will consider you and your clients to have no-showed all of the noticed depositions” and that Defendant would be moving to compel. (Williams Decl., Exh.

A, p. 8.) Later that evening Mr. Hearn responded to Mr. Williams and noted that he had previously advised that he was in the process of amending the complaint to add and remove certain plaintiffs, so it was premature for Defendant to attempt to depose Plaintiffs. Mr. Williams responded the following day and detailed the types of expenses Defendant had incurred in relation to the depositions.

Defendant filed the present motion on April 25, 2025. On May 27, 2025, Plaintiffs filed a notice of non-opposition that simply states, “Plaintiffs hereby indicate their non-opposition to Defendant McAfee, LLC’s Motion to Compel Depositions.” The Court notes that neither the notice of non-opposition nor the proof of service accompanying it are signed.

Also on May 27, 2025, the Court denied Plaintiffs’ motion for leave to file a first amended complaint without prejudice for failure to comply with California Rules of Court rule 3.1324.

In addition to an order compelling Plaintiffs to appear at their depositions, Defendant also seeks sanctions in the amount of $95,178.49.

“If, after service of a deposition notice, a party to the action[,] without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” (Code Civ. Proc. § 2025.450(a).) The Court notes that the original deposition notices served on January 17, 2025 are invalid. A deposition notice must state “[t]he address where the deposition will be taken.” (Code Civ. Proc. § 2025.220(a)(1).) This requirement is

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 06/09/2025 Hearing on Motion to Compel Depositions of Plaintiffs in Department 54

particularly important given that the Code provides geographical limits as to where a deposition may occur. (See Code Civ. Proc. §§ 2025.250 and 2025.260.) Here, the January 17 deposition notices list the place of the deposition as “a mutually agreeable location.” (Williams Decl., Exh. B.) This does not comply with Code of Civil Procedure section 2025.220(a)(1).

Even so, Defendant served amended deposition notices on February 17, 2025. The amended notices effectively superseded the prior notices. “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (Code Civ. Proc. § 2025.270(a).) The notice period is extended based on the manner of service. (Code Civ. Proc. § 2016.050.) Here, the amended deposition notices were served via email, so the 10-day period is extended by two court days. (Code Civ. Proc. § 1010.6(a)(3)(B).) That means the earliest a deposition could be scheduled if the notice is served via email on February 17, 2025 is March 3, 2025. Thus, the amended deposition notices provided insufficient notice for Plaintiffs Lisa Alexander, Tameckia Cook, Angel Hernandez, Markieda Hollier, and Aaron Mosley.

Despite these defects, since Plaintiffs have filed a notice of non-opposition, Defendant’s motion to compel Plaintiffs’ depositions is GRANTED. Plaintiffs shall appear for their depositions by no later than August 8, 2025, or a later date agreed to by the parties in writing.

Defendant’s request for sanctions is DENIED. Where a motion to compel a party’s deposition attendance is granted, monetary sanctions are mandatory “in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.450(g)(1).) Unlike other discovery statutes, section 2025.450(g)(1) does not authorize monetary sanctions against counsel.

Thus, Plaintiffs themselves would be subject to sanctions were they to be imposed under section 2025.450(g)(1). The Court notes that Defendant also seeks sanctions under section 2023.030, which does permit sanctions to be imposed against an attorney who is responsible for “advising” conduct that constitutes a misuse of the discovery process. However, Defendant does not provide any evidence showing that Plaintiff’s counsel “advised” any of the Plaintiffs not to appear at their depositions; in fact, the gravamen of Defendant’s motion is that Plaintiff’s counsel was non-responsive about the sought-after depositions.

The Court finds that the circumstances here would make the imposition of sanctions against Plaintiffs unjust. As noted above, the deposition notices as to half of the plaintiffs were invalid. Moreover, there is no indication that Plaintiffs were aware that their depositions had been noticed or that they did anything to contribute to their nonappearances. Additionally, the Court finds the amount requested to be so unreasonable as to warrant denying the request by itself. It was not reasonable for Defendant to fly out its counsel from Atlanta for depositions that were noticed with insufficient notice and that were not confirmed or even acknowledged by Plaintiffs’ counsel.

It is likewise unreasonable for Defendant to seek sanctions based on two attorneys in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 06/09/2025 Hearing on Motion to Compel Depositions of Plaintiffs in Department 54

defense counsel’s firm spending more than 60 hours over almost two full months – generating nearly $40,000 in fees to Defendant – to prepare the routine motion to compel at issue here. (See Williams Decl., ¶ 12, lines 23-25, ¶ 14, lines 6-7.) Incredibly, this excessive attorney time is in addition to defense counsel seeking another $4,000 in paralegal time in connection with preparation of the instant motion. (Id. at ¶ 15, lines 10-12.) Defendant’s requested sanctions are clearly excessive.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)