United States District Court, E.D. California
ISAIAS VASQUEZ and LINDA HEFKE on behalf of all other similarly situated individuals, Plaintiffs,
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
RECOVER REASONABLE EXPENSES PURSUANT TO FRCP 30(G) (DOC. NO.
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.
November 21, 2019, Defendants Leprino Foods Company and
Leprino Foods Dairy Products Company
(“Defendants”) filed a Motion to Recover
Reasonable Expenses pursuant to Federal Rule of Civil
Procedure 30(g). Defendants seek to recover fees and costs in
the amount of $5, 987.38 in connection with the scheduled
deposition of nonparty deponent, Ronaldo Salvo. (Doc. Nos.
149, 156.) The parties filed a Joint Statement regarding
Defendants' motion on December 6, 2019. (Doc. No. 156.)
matter was heard on December 13, 2019, before the Honorable
Barbara A. McAuliffe. Kitty Szeto appeared by telephone on
behalf of Plaintiffs Isaias Vasquez and Linda Hefke. Lisa
Pooley appeared in person on behalf of Defendants.
considered the Joint Statement, the parties' arguments
and the record on file, Defendants' motion is granted in
wage-and-hour class action stems from Defendants' alleged
custom and policy to “de crew, ” i.e., sending
workers home prior to the start of their scheduled shift
without pay because Defendants reportedly misjudged its
production or labor needs and from Defendants' alleged
policy of requiring Plaintiffs and workers to remain on call
and subject to return to discuss business matters and/or
return to their work stations during their rest and meal
breaks if called upon to do so by supervisory personnel.
(Doc. No. 61, Third Amended Complaint at ¶¶ 5, 7.)
6, 2019, Plaintiffs filed their motion for class
certification. (Doc. No. 116.) Defendants opposed the motion
on August 30, 2019. (Doc. No. 120.) On September 9, 2019, in
anticipation of filing their reply, Plaintiffs sought the
Court's leave to exceed Rule 30's ten-deposition
limit to depose putative class members who submitted
declarations in support of Defendants' opposition to the
motion for class certification. (Doc. No. 132 at 3.) On
September 25, 2019, the Court partially granted
Plaintiffs' request, permitting them to conduct seven
depositions of the putative class members who submitted
declarations in support of Defendants' opposition to the
motion for class certification. (Doc. 136). The parties were
directed to meet and confer to work out a schedule for the
depositions, all of which were to be completed no later than
November 8, 2019. (Id.)
the Court's order permitting additional depositions,
counsel for the parties began communicating to set a schedule
for the depositions. Once Plaintiffs identified the persons
to be deposed, Defendants inquired about the deponents'
availability for deposition. (Doc. 156-1, Pooley Decl. at
¶¶ 3-4, Exs. B and C.) Defense counsel communicated
with Plaintiffs' counsel about each deponent's
availability and whether defense counsel had been authorized
to accept service of a deposition subpoena for each deponent.
regard to deponent Ronaldo Salvo, on October 14, 2019,
Plaintiffs sought confirmation of Mr. Salvo's deposition
for October 28, 2019, upon his return to work on October 25,
2019. In response, Defendants indicated that given Mr.
Salvo's October 25 return to work, he would not have
reasonable notice for a deposition. Defendants advised that,
upon his return, they would check on his availability and let
Plaintiffs' counsel know his availability for other
dates. (Pooley Decl. at ¶ 9, Ex. H.)
October 16, 2019, Plaintiffs' counsel asked if Mr.
Salvo's deposition could be scheduled for October 31,
2019. (Pooley Decl. at ¶ 10, Ex. I.) On October 21,
2019, defense counsel indicated that October 31 would not
work for Mr. Salvo, but they would check on his availability.
Plaintiff's counsel then sent another email asking that
they check on October 30 as an alternative to October 31.
(Pooley Decl. at ¶ 11, Ex. J.)
October 25, 2019, defense counsel learned that Mr. Salvo was
not available for deposition on October 30 or 31, but he
could be available on November 5, 2019. Although an offer was
made to Mr. Salvo to have defense counsel accept service of a
deposition subpoena on his behalf, Mr. Salvo did not
authorize defense counsel to accept service on his behalf.
Defense counsel notified Plaintiffs' counsel that Mr.
Salvo was available on November 5, 2019. Plaintiffs'
counsel confirmed the November 5 date and inquired if defense
counsel would accept service on behalf of Mr. Salvo. Defense
counsel responded that they had not been authorized to accept
service on his behalf. (Pooley Decl. at ¶ 12, Ex. K.)
October 28, 2019, defense counsel received Plaintiffs'
Amended Notice of Deposition of Ronaldo Salvo, which noticed
his deposition for November 5, 2019 at 9:00 a.m., at Esquire
Deposition Solutions in Fresno, California. (Pooley Decl. at
¶ 13, Ex. L.)
October 31, 2019, the parties attended the deposition of
Alejandro Osuna, taken by Plaintiffs' Counsel, Kitty K.
Szeto. Defense counsel Lisa M. Pooley was present at the
deposition. (Pooley Decl. at ¶ 14, Ex. M.) During the
deposition, Ms. Szeto inquired as to whether Mr. Osuna knew
of any facts as to why Mr. Salvo would have been evading
service and whether he knew of any facts to help Plaintiffs
better serve him. Mr. Osuna did not provide any information
in that regard. (Doc. 157, Szeto Decl. at ¶ 4.)
November 4, 2019, Ms. Pooley traveled from San Francisco to
Fresno, which took four hours, and stayed overnight in a
Fresno hotel. On the morning of November 5, 2019, Ms. Pooley
went to Esquire Deposition Solutions, the location for Mr.
Salvo's noticed deposition. Upon her arrival, Ms. Pooley
was informed by the receptionist that the deposition was not
on the calendar and that Plaintiffs had cancelled the
deposition on November 1, 2019, four days earlier. Ms. Pooley
then sent an email to Plaintiffs' counsel inquiring as to
why Defendants had not been advised that ...