United States District Court, E.D. California
WAKE FOREST ACQUISITIONS, L.P.; SHAFFER ASSET MANAGEMENTCORPORATION; ROBERT P.SHAFFER, individually and as Co-Trustee of the Robert P. Shaffer Revocable Trust; and MARY SHAFFER, as Co-Trustee of the Robert P. Shaffer Revocable Trust, Plaintiffs,
VANDERBILT COMMERCIAL LENDING, INC.; and GREGORY COOK, Defendants. VANDERBILT COMMERCIAL LENDING, INC., Counterclaim-Plaintiff,
WAKE FOREST ACQUISITIONS, L.P., Counterclaim- Defendant.
move to reopen discovery solely to renew and resolve a
previously filed motion for sanctions against defendant
Gregory Cook for failure to appear at his properly noticed
deposition. Mot. at 2, ECF No. 59-1; see ECF No. 52
(motion for sanctions).
other party has filed an opposition or response to
plaintiffs' motion to reopen discovery for this purpose,
and the deadline to file an opposition has passed.
See ECF No. 59; L.R. 230(c). The court submitted the
matter without oral argument. ECF No. 63.
reasons provided below, the court GRANTS plaintiffs'
motion to reopen discovery for the limited purpose of
renewing their motion for sanctions, ECF No. 52.
have sued defendants Gregory Cook and Vanderbilt Commercial
Lending (VCL) for VCL's alleged failure to extend a $14,
060, 000 loan for development of a 272-bed student housing
community. See First Am. Compl. (FAC) ¶¶
23, 61, 117-18, 158, ECF No. 69. According to plaintiffs,
VCL, by and through Cook, fraudulently represented itself as
a lender and committed to extending the loan to plaintiff
Wake Forest Acquisitions, LP. Id. ¶¶ 45,
59, 71, 78-80, 110, 170, 172. Plaintiffs have alleged injury
stemming from VCL's failure to honor its obligation to
fund the loan. Id. ¶¶ 175-90.
Plaintiffs' claims include breach of contract, breach of
the implied covenant of good faith and fair dealing,
promissory estoppel, breach of fiduciary duty, rescission,
violation of California's Unfair Competition Law, third
party beneficiary breach of contract, and fraud-intentional
misrepresentation. Id. ¶¶ 191-361.
Plaintiffs' Attempts to Depose Cook
have sought multiple times to depose Gregory Cook, VCL's
President, as both a percipient witness and a witness
designated by VCL as its “person most knowledgeable,
” or “PMK, ” subject to Federal Rule of
Civil Procedure 30(b)(6). See generally Bellafronto
Decl., ECF No. 52-2. Cook was one of only two witnesses
plaintiffs sought to depose. Id. ¶ 2.
Plaintiffs' counsel attempted to meet and confer with
defendants' counsel about deposing Cook, but
defendants' counsel informed plaintiffs through email
that Cook was “experiencing severe medical
issues” and was “not fit for a deposition at this
time” without knowing for “sure when he [would]
be” fit. ECF No. 52-3 at 2, Ex. A. A few weeks later,
plaintiffs' counsel contacted defendants' counsel
again to request “documentary evidence” of
Cook's “medical circumstances and condition.”
Bellafronto Decl. ¶ 5; see ECF No. 52-3, Ex. B.
Nearly a month after their initial email exchange,
defendants' counsel communicated that Cook “is
collecting medical information, but even that is hard for
him.” ECF No. 52-3 at 6, Ex. C. Defendants' counsel
acknowledged that “we must move forward, since I will
not be able to provide you with comprehensive medical records
in short order.” Id. Counsel confirmed Cook
was “the PMK [person most qualified] of VCL, ”
and that she had asked Cook to appear for his deposition
scheduled March 6, 2017. Id.; see
Bellafronto Decl. ¶ 6.
the course of approximately four months, the parties
stipulated several times to continue fact and expert
discovery deadlines based on Cook's stated health
problems. Bellafronto Decl. ¶¶ 8, 10-11, Exs. D-F;
see also ECF Nos. 36, 43-47. The parties continued
to meet and confer to schedule Cook's deposition, and
plaintiffs asked Cook's counsel to present some form of
medical evidence about Cook's inability to appear for
deposition. Bellafronto Decl. ¶¶ 5-6, 9, 12-14; ECF
No. 52-3, Exs. G, H, I. According to plaintiffs, “No
such documentation was ever presented.” Mot. at 4;
Bellafronto Decl. ¶ 26.
requested by the parties, the court amended the scheduling
order for the case, extending the fact discovery cut-off date
to July 21, 2017. ECF No. 47. The parties agreed on
Cook's deposition as set for July 6, 2017, to take place
in Corning, California where Cook resided. ECF No. 52-3 at
29, 31, Exs. K-L; Bellafronto Decl. ¶¶ 9, 16-17.
Defendants' counsel communicated with plaintiffs'
counsel at least twice through email, confirming Cook was
confirmed for the July 6 date. ECF No. 52-3 at 29, 31, Exs.
counsel then drove the three hours to Corning, California for
Cook's deposition, scheduled to begin on July 6 at 10:00
a.m. Bellafronto Decl. ¶ 18. “After waiting for
approximately 30 minutes, ” Cook's counsel informed
plaintiffs' counsel that Cook “had an
‘unexplained emergency' and could not appear for
his deposition for another hour but that he would
appear.” Id. At 11:25 a.m., Cook still had not
arrived. ECF No. 52-3 at 37, Ex. M. Defendants' counsel
stated he thought Cook had identified “between 12:15
and 12:30, ” as his arrival time. Id. Cook had
not arrived by 12:30 p.m., and plaintiffs' counsel then
left at 12:31 p.m. Id. at 38; Bellafronto Decl.
¶ 18. Later that day, Cook, who was no longer
represented by an attorney, ECF No. 49, contacted
plaintiffs' counsel through email, stating he had
“received a most urgent and very high priority
call” that he was not expecting and “was kept on
this call for several hours.” ECF No. 52-3 at 43, Ex.
N. Cook suggested still “try[ing] to do one of [the
depositions] today” or arranging for “a
continuance.” Id. at 44.
counsel then sent multiple emails and called Cook on his cell
phone number attempting to arrange a new date and time for
Cook's deposition to occur before the fact discovery
cut-off date. Bellafronto Decl. ¶¶ 20-22; ECF No.
52-3 at 43, 46, Exs. N-O. After three emails, a phone call
and a voicemail message, Cook responded by email stating he
was “not trying to ignore” plaintiffs'
counsel. ECF No. 52-3 at 47, Ex. O. Despite plaintiffs'
counsel requesting from Cook a date and time for his
deposition, Cook did not offer any date or time. Id.
Instead, Cook asked where the parties would meet.
Id. Cook described “still experiencing the
light headedness, shortness of breath, [being] unbalanced at
times.” Id. Cook wrote that he “could
momentarily pass out for a few minutes” while drafting
an email “without even realizing it, ” then
“abruptly come to” and his “mouse [would]
go flying across the room.” Id. Cook stated
“[t]his is all very difficult for me to stay focused
long enough to finish this, ” then wrote he would give
plaintiffs' counsel “a call this afternoon.”
Id. In response, plaintiffs' counsel offered to
take the deposition at Cook's house if that was
“easiest for [Cook], or in Sacramento.”
Id. Plaintiffs' counsel asked Cook to provide
her “with a date and location to avoid a motion [to
days after the close of fact discovery, Cook e-mailed
plaintiffs' counsel to discuss deposition scheduling,
without mentioning his health condition. Bellafronto Decl.
¶ 25. Plaintiffs' counsel then called Cook but got
no answer and received no reply by phone or email.
Id. Cook never provided plaintiffs' counsel with
dates for taking the deposition originally scheduled for July
6, nor did he provide “any doctor's notes, medical
records or other evidence of the illness which ha[d]
purportedly prevented him from testifying since January
.” Id. ¶ 26.