Opinion

Pruco Life Insurance Company v. California Energy Development, Inc.

Court: District Court, S.D. California
Filed: Oct 29, 2021
Cited by: 0 cases
Authority: More cited than 19.1%

declining plaintiff’s request to shift travel costs to defendant and ordering that deposition be conducted via written questions pursuant to Rule 31

How later courts described this case

declining plaintiff’s request to shift travel costs to defendant and ordering that deposition be conducted via written questions pursuant to Rule 31
“A district court has wide discretion to establish the time and place of 10 depositions.”
noting that “case law indicates that it will be presumed that the defendant will be examined at his residence or place of business or employment”
“Factors guiding the [c]ourt’s discretion include the cost, convenience, and litigation efficiency of the designated location.”

Written by the judges who cited it.

The opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

11 PRUCO LIFE INSURANCE Case No.: 3:18-cv-02280-DMS-AHG

COMPANY,

12 ORDER DENYING MOTIONS FOR

Plaintiff, PROTECTIVE ORDER

REGARDING THE DEPOSITIONS

14 OF JASON VOELKER AND

CALIFORNIA ENERGY MICKEY NICHOLSON

DEVELOPMENT INC., et al.,

Defendants.

19 I. BACKGROUND

20 On October 18, 2021, the Court issued an Order Setting Firm Dates for Certain

21 Outstanding Depositions. ECF No. 300. In that Order, the Court set firm dates for the

22 depositions of several witnesses in the case, including parties Mickey Nicholson and Jason

23 Voelker. Id. at 2. The Court specified that Mr. Voelker would be deposed both in his

24 individual capacity and in his capacity as the 30(b)(6) representative of California Energy

25 Development, Inc. (“CEDI”). Id. The Court further set a deadline of October 27, 2021 for

26 any party who wished to request that his/its deposition take place outside the Southern

27 District of California—without a stipulation to that effect by all parties—to “submit legal

28 authority by email to the Court” in support. Id. at 3.

1 In response, counsel for CEDI submitted an informal motion seeking a protective

2 order pursuant to Rule 26(c)(1), requesting that the deposition of Mr. Voelker be taken

3 remotely or outside the Southern District of California. CEDI’s motion is attached hereto

4 as Exhibit A. Life Advance, LLC (“Life Advance”) submitted a response in opposition to

5 CEDI’s request on October 28, 2021, also via email to the Court. Life Advance’s

6 Opposition to CEDI’s motion is attached hereto as Exhibit B.

7 Additionally, Mickey Nicholson submitted an informal brief to the Court via email

8 on October 27, 2021, requesting that his deposition be conducted remotely. Mr.

9 Nicholson’s informal motion is attached hereto as Exhibit C. The Court ordered Life

10 Advance to lodge a response to Mr. Nicholson’s request with Court via email by noon on

11 October 29, 2021 (ECF No. 306), and Life Advance did so. Life Advance’s Opposition to

12 Mr. Nicholson’s motion is attached hereto as Exhibit D.

13 During the same timeframe, on October 26, 2021, the Court scheduled a discovery

14 conference for October 28, 2021 to discuss Pruco Life Insurance Company’s (“Pruco”)

15 Motion to Quash Deposition Subpoena of Kelly D. Fair (“Motion to Quash”). ECF No.

16 304. Following the discussion of the Motion to Quash, the Court excused counsel for Pruco

17 and allowed the remaining parties to be heard regarding the deposition-related disputes.

18 Having considered the parties’ arguments during the hearing, as well as the briefs

19 submitted informally to the Court regarding the deposition dispute, the Court DENIES the

20 request that Mr. Voelker be deposed outside of the Southern District of California, and

21 further DENIES the requests to allow Mr. Nicholson and Mr. Voelker to be deposed

22 remotely. Both Mr. Nicholson and Mr. Voelker are ORDERED to appear for their

23 depositions in person in the Southern District of California, as noticed, for the reasons that

24 follow.

25 II. LEGAL STANDARD

26 Rule 30 of the Federal Rules of Civil Procedure sets forth the procedures for

27 depositions. As a general rule, the deposition of a party may be set wherever the deposing

28 party designates, subject to the power of the court to grant a protective order. Lord v.

1 Flanagan, No. 13cv26-BU-DLC-JCL, 2014 WL 51655, at *2 (D. Mont. Jan. 7, 2014); see

2 S.E.C. v. Banc de Binary, No. 13cv993-RCJ-VCF, 2014 WL 1030862, at *3 (D. Nev. Mar.

3 14, 2014) (noting that Rule 30(b)(1) requires “‘[a] party who wants to depose a person by

4 oral questions [to] state the time and place of the deposition,’” and explaining that

5 “[g]enerally, this means that the examining party may unilaterally choose a deposition’s

6 location”). “[T]he court has a wide discretion in selecting the place of examination.” Lord,

7 2014 WL 51655, at *2 (quoting 8A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND

8 PROCEDURE § 2112 (3d ed. 2010)); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1166

9 (9th Cir. 1994) (“A district court has wide discretion to establish the time and place of

10 depositions.”). Under Rule 30, “[t]he parties may stipulate—or the court may on motion

11 order—that a deposition be taken by telephone or other remote means,” such as video

12 conferencing. Fed. R. Civ. P. 30(b)(4); see Banc de Binary, 2014 WL 1030862, at *10

13 (‘other remote means’ includes videoconferencing).

14 Rule 26(c)(1), in turn, governs protective orders. A court may grant a protective

15 order “‘to regulate the terms, conditions, time or place of discovery.’” Cadent Ltd. v. 3M

16 Unitek Corp., 232 F.R.D. 625, 629 (C.D. Cal. 2005) (quoting Pro Billiards Tour Ass’n,

17 Inc. v R.J. Reynolds Tobacco Co., 187 F.R.D. 229, 230 (M.D.N.C. 1999)). Under that rule,

18 “[t]he court may, for good cause, issue an order to protect a party or person from

19 annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P.

20 26(c)(1). In order to make the requisite showing of good cause, “the party seeking

21 protection bears the burden of showing specific prejudice or harm will result if no

22 protective order is granted.” Phillips ex rel. Estates of Byrd v. General Motors Corp., 307

23 F.3d 1206, 1210–11 (9th Cir. 2002); WebSideStory, Inc. v. NetRatings, Inc., No. 06cv408-

24 WQH-AJB, 2007 WL 1120567, at *1–*2 (S.D. Cal. Mar. 22, 2007) (“To establish good

25 cause, the moving party must make a clear showing of a particular and specific need for

26 the order.”). The court has broad discretion in deciding “when a protective order is

27 appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467

28 U.S. 20, 36 (1984); see Phillips, 307 F.3d at 1211–12.

1 III. DISCUSSION

2 A. CEDI’s Motion for Protective Order regarding Mr. Voelker’s Deposition

3 The Court finds that CEDI has failed to meet the Rule 26(c)(1) “good cause”

4 standard to warrant a protective order requiring Mr. Voelker’s deposition to take place

5 outside of the Southern District of California, or alternatively, that it take place remotely.

6 Specifically, CEDI requests that the Court issue a protective order requiring Life Advance

7 to take Mr. Voelker’s deposition(s) in the Northern District of California, where Mr.

8 Voelker resides and where CEDI has its principal place of business. In the alternative,

9 CEDI requests that the Court allow Mr. Voelker’s deposition to proceed remotely.

10 In its brief, CEDI argues that “the bar is set very low” to meet the good cause

11 requirement of Rule 26 where the noticed location of the deposition is not in the district

12 where the defendant lives or has its principal place of business. In support of this

13 proposition, CEDI cites to SEC v. Aly, 320 F.R.D. 116, 118 (S.D.N.Y. 2017). However,

14 the Aly case does not support CEDI’s argument that the bar is “very low.” Indeed, the case

15 cuts against CEDI’s argument in at least one significant way, because it explains that “[t]he

16 presumption that a deposition should take place where a defendant resides is based in part

17 on the assumption that the plaintiff exercised choice as to the forum of the lawsuit, and

18 thus the presumption is weakest where the plaintiff was constrained to file suit in a

19 particular forum.” Id. (emphasis added). Here, not one of the three parties involved in the

20 dispute—CEDI, Mr. Voelker, and Life Advance—is the plaintiff in this action. Instead, all

21 three are interpleader defendants who were haled into Court by Plaintiff Pruco due to their

22 competing claims to the policy proceeds at issue in this interpleader action. Therefore, as

23 explained in the very case upon which CEDI relies, the presumption is not applicable

24 where, as here, the party who noticed the deposition is not a plaintiff who chose the forum

25 of the lawsuit.1

1 The Court further notes that CEDI has not established that its principal place of business

1 A second reason the Aly case is inapposite is that the deponent there “declared under

2 penalty of perjuy that he has assets only of approximately $1,000,” making travel from

3 Pakistan to New York a “prohibitive burden to him.” 320 F.R.D. at 118-19. Taking into

4 account the deponent’s minimal resources, as described in a sworn affidavit under penalty

5 of perjury, the failure of the deposing party to refute the affidavit, and the fact that the

6 deponent’s passport had expired and he had no visa to enter the United States, the Court

7 determined that it would be unduly burdensome to force the deponent to travel to New

8 York or another country for his deposition. Id. at 119. However, even then, the Court did

9 not require the deposing party to travel to the deponent’s place of residence in Pakistan,

10 instead ordering that the deposition take place remotely. Id. at 119-120.

11 CEDI has made no similar showing of undue burden here. Indeed, CEDI’s counsel

12 Benjamin Gale submitted his own estimates of his and Mr. Voelker’s deposition-related

13 expenses, totaling $2,250 (attached to Exhibit A). $1,500 of the anticipated expenses are

14 reported as “Gale’s lost hourly billings @ $375/hr x 4 hrs.” Other reported expenses

15 include $500 for air fare for Mr. Gale and Mr. Voelker, $150 for a rental car, and $100 for

16 meals. Setting aside the unusual proposition that the Court should consider Mr. Gale’s

17 purported inability to bill CEDI for his travel to attend depositions in connection with this

18 litigation, more significantly, CEDI has failed to show why such expenses are “undue.”

19 Notably, CEDI and Mr. Voelker are not only interpleader defendants in this action, but

California Secretary of State website continue to show that California Energy

23 Development, Inc. is a dissolved corporation with its principal address at 8400 Miramar

Road, San Diego, California, 92126. The Statement of Information for CEDI filed on

July 19, 2016 lists the location of the principal executive office as San Diego. Additionally,

25 minutes from the special meeting of the shareholders of CEDI held on September 29, 2020,

when a new Board of Directors was elected, show that the meeting took place at 141 North

Magnolia Avenue, El Cajon, CA, 92020, which is also located in this district. ECF No.

27 193-2. There is no evidence before the Court that the corporation has ever been

incorporated or held its principal place of business in the San Francisco area, as Mr.

1 they have also each brought cross-claims against Life Advance. ECF No. 209, 240, 241.

2 Maintaining and defending claims in a lawsuit will necessarily entail certain costs and

3 expenses. The question under Rule 26(c)(1) is not whether there is any cost to travel to

4 appear for a deposition noticed by an opposing party in litigation, but whether the burden

5 of the cost is undue. CEDI and Mr. Voelker have failed to make such a showing here.

6 Additionally, the Court notes that the CEDI shareholder meeting minutes show that

7 Mr. Voelker has traveled to this district in connection with CEDI business in the past. Mr.

8 Voelker has also traveled to this district to attend the Early Neutral Evaluation Conference

9 in this matter. ECF No. 125. And, as Life Advance points out in its opposition, CEDI chose

10 to designate Mr. Voelker as its 30(b)(6) representative in this action. CEDI has thus failed

11 to meet its burden of showing a “particular and specific need” for a protective order

12 requiring that the deposition take place elsewhere or by remote means. See WebSideStory,

13 2007 WL 1120567, at *1-*2.

14 Moreover, the Court finds that the circumstances of this case demand that

15 depositions take place in person. There is an exceedingly high level of distrust among all

16 parties, as evidenced by the near-constant stream of accusations of bad faith and dishonest

17 conduct the Court has faced from all sides. The credibility of the parties is also a key

18 substantive issue in this case. For that reason, the Court is not inclined to permit key

19 witnesses such as Mr. Voelker to appear by videoconference. See, e.g., Gersh v. Anglin,

20 No. CV-17-50-M-DCL-JCL, 2019 U.S. Dist. LEXIS 162473, at *4–*5 (D. Mont. Apr. 5,

21 2019) (denying request for defendant’s deposition to proceed by videoconference, because

22 “[a]s the named defendant, Anglin will also likely serve as a key witness and his credibility

23 will presumably be a central issue. Plaintiff cites several cases recognizing that a deposition

24 by remote means may be insufficient where, as here, the deponent is a key witness whose

25 testimony and credibility are central to the case. [] This Court agrees that [p]laintiff would

26 be prejudiced if Anglin is not required to appear for an in-person deposition.”); Natural-

27 Immunogenics Corp. v. Newport Trial Grp., No. 15cv2034-JVS-JCGx, 2017 WL

28 10562990, at *6 (C.D. Cal. Aug. 14, 2017) (denying motion for protective order permitting

1 depositions to proceed by videoconference, in part because “the Quintos are key witnesses

2 in this case. They are [plaintiff]’s principals; they decided to bring this litigation, and they

3 have been actively involved in making litigation decisions, as their counsel have

4 represented. Thus, it is fair to say that their testimony will be controversial, and the tenor

5 of the interactions between the parties and counsel during the depositions may be tense.

6 Videoconference depositions are not suitable for such controversial situations,” since

7 counsel would be unable to ascertain if anyone is listening in or coaching the witness); see

8 cf. Egan v. Royal Kona Resort, No. 17-322-DKW-KJM, 2018 WL 1528779, at *2 (D. Haw.

9 Mar. 28, 2018) (“Although the Court will always encourage parties to consider remote

10 depositions—particularly if the depositions do not involve key witnesses—the Court

11 agrees with Royal Kona’s concerns about the practical limitations on such depositions.

12 Here, where the depositions concern the named Plaintiffs who will be key trial witnesses,

13 the Court agrees that forcing video or telephonic depositions would unfairly prejudice

14 Royal Kona’s case evaluation and preparation.”); United States v. Approximately $57,378

15 in U.S. Currency, No. C-08-5023-MMC-BZ, 2010 U.S. Dist. LEXIS 121022, at *3–*4

16 (N.D. Cal. Oct. 27, 2010) (denying request for defendant’s deposition to proceed by

17 videoconference, because “a deposition by telephone or video conference would be

18 prejudicial to the Government’s case. This is primarily because the Government will use

19 Sims’ deposition to examine her credibility. To do this, the Government needs an in-person

20 opportunity to observe Sims’ demeanor, ask follow-up questions, and confront Sims with

21 prior inconsistent statements she has made.”); Clinton v. Cal. Dep’t of Corr., No. CIV-S-

22 05-1600-LKK-CMK-P, 2008 WL 5068586, at *2 (E.D. Cal. Nov. 25, 2008) (declining to

23 order remote deposition of plaintiff because a remote deposition would “place [defendant]

24 at a disadvantage by not allowing defense counsel to adequately observe plaintiff’s

25 demeanor to prepare for trial”).

26 B. Mr. Nicholson’s Motion for Protective Order

27 Mr. Nicholson has also requested that his deposition proceed by remote means. See

28 Exhibit C attached hereto.

1 Mr. Nicholson’s request is driven by the fact that he is the sole caretaker for his

2 mother, who suffers from a number of medical problems and is especially vulnerable to

3 COVID-19. Mr. Nicholson is concerned about exposing his mother to COVID-19 and

4 about being away from his mother in case of an emergency.

5 While the Court is more sympathetic to Mr. Nicholson’s arguments regarding his

6 request to have his deposition take place remotely, ultimately, the Court will deny the

7 request for the same reasons explained above with respect to Mr. Voelker’s deposition.

8 Like Mr. Voelker, Mr. Nicholson is also a key witness in this case whose credibility is at

9 issue, and who has brought affirmative cross-claims for relief against Life Advance. As

10 Life Advance points out in its Opposition, “discovery and other proceedings in this case

11 [have] been wrought with disputes and antagonistic, illegal activities” such that “[t]he

12 potential for technology problems, sound problems and interruptions will only exacerbate

13 those issues.” As outlined in more detail in its discussion of Mr. Voelker’s request above,

14 the Court is further swayed by Life Advance’s argument that “[e]xperienced litigation

15 attorneys read body language and find ways to engage witnesses in ways that are not

16 available in a virtual setting.” See also, e.g., Approximately $57,378 in U.S. Currency, 2010

17 U.S. Dist. LEXIS 121022, at *3–*4 (N.D. Cal. Oct. 27, 2010); Johnson v. Sager, No. C11-

18 1117-RSM-JPD, 2012 WL 213471, at *2 (W.D. Wash. Jan. 24, 2012) (granting a remote

19 deposition, but acknowledging that counsel’s “inability to see defendants and to judge their

20 personal demeanors constitutes an important consideration in the decision to permit a

21 [remote] deposition, particularly because [the deposing party] contends that defendants

22 have acted dishonestly and with discriminatory intent.”); Anguile v. Gerhart, No. CIV.A

23 93-934 (HLS), 1993 WL 414665, at *3 (D.N.J. Oct. 7, 1993) (“[T]he court agrees with the

24 defendant that counsel’s ability to see the plaintiff and judge her demeanor is important in

25 this case where the plaintiff is the key witness to most of the relevant facts . . . .”)

26 The Court also agrees with Life Advance that the need to question Mr. Nicholson

27 regarding many documents during the deposition also counsels in favor of an in-person

28 deposition, as sorting through voluminous documents remotely is “time consuming and

1 || difficult.” Further, Mr. Voelker’s place of residence is in El Cajon, California, which is

2 31.4 miles from the location of the noticed deposition at counsel for Life Advance’s

3 || office. As Life Advance points out in its opposition, Mr. Nicholson has recently appeared

4 person in this Court for Show Cause hearings on August 9 and October 12, 2021. ECF

5 || Nos. 284, 296. He also appeared in person at the CEDI shareholders meeting on September

6 || 26, 2020, when COVID-19 vaccinations were not publicly available. ECF No. 193-2.

7 Nonetheless, the Court takes seriously the very real threat of the ongoing COVID-

8 ||19 pandemic. However, in its wide discretion and considering the importance of Mr.

9 || Nicholson’s testimony and Life Advance’s ability to assess his credibility in person, the

10 || Court finds on balance that the threat is sufficiently mitigated by the fact that Life Advance

11 guaranteed that counsel, counsel’s staff, and the short-hand reporter are all fully

12 || vaccinated. Thus, although Mr. Nicholson’s request poses a closer question for the Court,

13 Court will deny the request in its discretion.

14 IV. CONCLUSION

15 For the foregoing reasons, CEDI’s and Mickey Nicholson’s informal motions for

16 || protective order, requesting that the depositions of Mr. Nicholson and Mr. Voelker take

17 || place out-of-district and/or remotely, are DENIED. As set forth in the Court’s prior Order

18 || Setting Firm Dates for Certain Outstanding Depositions (ECF No. 300), the depositions of

19 Nicholson and Mr. Voelker will take place in person in the Southern District of

20 || California.

21 IT IS SO ORDERED.

: LK eve ovolan.

23 | Dated: October 29, 2021 Hitaorable feet H. Goddard

24 United States Magistrate Judge

LEGAL AUTHORITY WHY DEPOSTION OF JASON VOELKER SHOULD TAKE PLACE OUTSIDE THE SOUTHERN

DISTRICT OF CALIFORNIA and MOTION FOR PROTECTIVE ORDER BASED THEREON

In its order of October 18, 2021, this court offered each of the parties the opportunity to

request that his/its deposition take place outside the Southern District of California if the parties were

unwilling to enter into a stipulation to that effect. The court instructed the party making the request to

submit legal authority by email to the Court and to serve it on the other parties.

California Energy Development Inc. (CEDI) has been unable to persuade Life Advance to

stipulate to take the deposition of Jason Voelker remotely or outside the Southern District and is

therefore submitting these legal authorities in support of its request for court assistance. CEDI is

thereby accepting the court’s invitation to move the court for a protective order pursuant to Rule

26(c)(1) that would establish terms for Mr. Voelker’s deposition that are consistent with current law.

CEDI’s counsel Benjamin Gale hereby certifies that the statements made in the attached email

regarding his attempts to meet and confer with counsel for Life Advance LLC are true and correct and

that there was been no acceptable response to Mr. Gale’s attempts to meet and confer on this issue.

As set forth below, the nearly uniform position of the federal courts is that if, as here, travel-

related expenses for depositions are significant and one-sided, a party deponent may move the court to

have the deposition taken at a less costly and more convenient location or to have the opposing party

pay all or some of the expenses associated with conducting the deposition at the noticed location.

The burden is on CEDI to show that Voelker’s and CEDI’s expense and inconvenience are good

cause for the relief requested, but the cases show that, where the noticed location of the deposition is

not at the defendant’s home or business, the bar is set very low. See SEC v. Aly, 320 F.R.D. 116, 118

(S.D.N.Y. 2017). To determine whether good cause exists, courts typically begin with the question of

whether the deposition has been set at the presumptive location developed through case law. Usually

the courts go no further than to satisfy themselves on this question.

The deposition of the agent of a defendant corporation should presumptively take place at the

corporation’s principal place of business or where the witness works or resides. See Salter v. Upjohn Co.,

593 F.2d 649, 651 (5th Cir. 1979) (“It is well settled that the deposition of a corporation by its agents and

officers should ordinarily be taken at its principal place of business, especially when, as in this case, the

corporation is the defendant.”). In U.S. ex rel. Barko v. Halliburton Co. (D.D.C. 2010) 270 F.R.D. 26, 29

the court ruled there was no basis to deviate from the general rule that a corporate deposition of

defendant occur in the defendant’s principal place of business, even though that was in Amman,

Jordan. In so ruling, the court rejected plaintiff’s unsupported assertion that the deposition may require

judicial intervention and plaintiff’s equitable argument that conducting a deposition in Jordan “puts a

greater burden on the plaintiff than would be on the defendant if the deposition were conducted in the

United States.” Id. The court further found “no basis” to grant plaintiff’s request to shift plaintiff’s extra

costs associated with conducting the deposition in Jordan to defendant. Id.

The same presumption applies to individual defendants. In absence of exceptional or unusual

circumstances, if a deponent resides at a substantial distance from deposing party’s location, the

deposing party is required to take the deposition where the deponent resides, even if the deponent is a

party. See Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987) (noting that “case law indicates that

it will be presumed that the defendant will be examined at his residence or place of business or

employment”).

Because Voelker is required to appear at the deposition as a representative of CEDI, most courts

would hold that the deposition must be held where Voelker and CEDI do business. See Salter v. Upjohn

Co., 593 F.2d at 651, supra; Thomas v. Intern. Business Machs., 48 F.3d 478, 483 (10th Cir. 1995)

McArthur v. Rock Woodfired Pizza & Spirits, 318 F.R.D. 136 (W.D. Wash. 2016); Six West Retail

Acquisition v. Sony Theatre Management Corp. 203 F.R.D. 98, 107--108 (S.D.N.Y. 2001); and other cases

cited in 8A Wright & Miller, Fed. Prac. & Proc. § 2112 (3d ed.). Voelker’s and CEDI’s current place of

business is the San Francisco Bay area. See Declaration Of Jason Voelker In Support Of Protective Order

To Allow Deposition To Take Place Outside The Southern District Of California filed herewith at p.1.

The location of the deponent’s attorneys is also a relevant consideration. See Haymes v.

Columbia Pictures Corp., 16 F.R.D. 118, 123 (S.D.N.Y.1954) cited in Farquhar v. Shelden, supra. Here the

deponent’s attorney (Benjamin Gale) resides and works in the San Francisco Bay area.

There is no equitable reason to vary from the standard rule, because no legitimate special

circumstances exist to require the deponent and his counsel to bear the cost of going to San Diego for

deposition. Unlike a plaintiff, a defendant does not get to decide where a case will be heard. The usual

rule is that the lack of choice of forum is reason enough to require the deposition to be taken where the

deponent resides. See Farquhar v. Shelden supra, citing Salter v. Upjohn Co., supra; General Leasing Co.

v.Lawrence Photo–Graphic Supply, Inc., 84 F.R.D. 130, 131 (W.D. Mo. 1979) citing 8A Wright & Miller,

supra.

Although there appears to be no published decision dealing with this issue in the case of an

interpleader defendant, there is no justification for treating an interpleader defendant differently from

any other kind of defendant. Like the defendant in an ordinary civil case, an interpleader defendant has

no say in the selection of the forum for the case. This is true even where, as here, the defendant has

filed a cross-claim against the deposing party, because a defendant has no alternative as to where to file

its cross claim. See Rapoca Energy Co., L.P. v. Amci Export Corp., 199 F.R.D. 191 (W.D. Va. 2001) as cited

in 8A Wright & Miller, supra.

Also, it is improper for Life Advance to compel Voelker to go from the Bay Area to San Diego for

a deposition as a percipient witness, given that Life Advance has also noticed his deposition as a

representative of CEDI, which must be held in the Bay Area. (See the authorities cited above.) When a

party seeks to depose an individual both as a percipient witness and as a representative of a

corporation, courts almost invariably require that the two depositions be combined into one. See Order

Establishing Deposition Protocol in In re National Prescription Opiate Litigation (ND OH 2018) Case No.

1:17-MD-2804 at p. 12 (attached); Order Regarding Deposition Protocol in In Re: Fresh And Process

Potatoes Antitrust Litigation (D ID 2013) Case No. 4:10-MD-2186-BLW, at p. 5 (attached); see also

Pretrial Order No.9 on Fact Deposition Discovery in In re Flouroquinolone Products Liability Litigation (D

MN 2015) MDL No. 15-2642 (JRT) at p. 12 (also attached)

Cost, convenience, and efficiency support requiring one, and only one, videoconference

deposition of Voelker or, alternatively, the sharing of costs incurred by the deponent and his counsel.

But even if Life Advance could claim that a Zoom deposition would be costly (which it is not), a claim of

financial hardship, taken alone, would not demonstrate exceptional or compelling circumstances to

overcome the presumption under this rule. See General Leasing Co. v. Lawrence Photo-Graphic

Supply, supra cited in Wright & Miller, supra, in support of the following principle: “In absence of

exceptional or unusual circumstances, when a deponent resides at a substantial distance from deposing

party’s residence, deposing party should be required to take the deposition at location in the vicinity in

which deponent resides, even if deponent is a party; a claim of financial hardship, taken alone, does not

demonstrate exceptional or compelling circumstances under this rule.”

In 2015, the U.S. Supreme Court approved an amendment to Rule 26 that codified the courts’

inherent authority to shift discovery costs. Specifically, the amendment states that when entering a

protective order to protect a party or person from, among other things, “undue burden or expense,” the

court may specify the “time and place or the allocation of expenses, for the disclosure or

discovery[.]” Fed. R. Civ. P. 26(c)(1)(B) (emphasis added). As in the document discovery context, the

particular facts of the case determine whether the court will exercise its discretion to shift costs to the

requesting party for the deposition. See Oxbow Carbon & Minerals LLC v. Union P. R.R. Co., 322 F.R.D. 1,

10-11 (D.D.C. 2017); Wright & Miller, supra (“the court has a wide discretion in selecting the place of

examination and in attaching conditions concerning the payment of expenses,” which depend on the

particular facts of the case). See also Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 630 (C.D. Cal.

2005), acknowledging that the party taking the deposition should pay travel costs, but allowing a sharing

of costs because of the significant savings to defendants.

Where costs may not fairly be imposed on either party, courts have discretion to order a

deposition by other means. As one court put it, a court “may be as inventive as the necessities of a

particular case require.” DePetro v. Exxon Inc., 118 F.R.D. 523, 525 (M.D. Ala. 1988). For example, in

Hernandez v. Hendrix Produce, Inc., a court in the Southern District of Georgia ordered plaintiffs, migrant

workers residing in rural Mexico, to pay $1,000 to defendant produce company to cover the expense of

web-based video depositions of workers where internet depositions would save workers $15,000 in

expenses traveling from Mexico for in-person depositions in Georgia. 297 F.R.D. 538, 540-41 (S.D. Ga.

2014). In SEC v. Aly, a court in the Southern District of New York departed from the general rule that a

defendant should be deposed where he resides after concluding a deposition in either New

York, Pakistan, or another country would not eliminate an undue burden for one of the parties. 320

F.R.D. 116, 118-19 (S.D.N.Y. 2017). Instead, the court ordered that the deposition be conducted by

videoconference, which is “frequently a preferred solution to mitigate the burden of a deposition

location inconvenient to one or both sides.” Id. at 119; see also Robinson v. Tracy, 16 F.R.D. 113, 115 (D.

Mo. 1954) (declining plaintiff’s request to shift travel costs to defendant and ordering that deposition be

conducted via written questions pursuant to Rule 31). Here, as a solution to avoid excessive costs, the

court can order a remote deposition by Zoom.

Conclusion. Courts may order a deposition be held other than where the deposing party requests

“when justice requires.” 8A Wright & Miller, supra. To determine whether justice requires setting the

deposition at a location other than the deponent’s home or place of business or attaching conditions,

courts typically focus on cost, convenience, and efficiency. See, e.g., SEC v. Aly, 320 F.R.D. 116, 118

(S.D.N.Y. 2017) (“Factors guiding the [c]ourt’s discretion include the cost, convenience, and litigation

efficiency of the designated location.”). Here, these considerations support finding a way to take

Voelker’s deposition without requiring Voelker and his counsel to incur the expense, inconvenience, lost

time and exposure to Covid-19 involved in travelling 600 miles to San Diego for the deposition,

especially given that no great benefit is gained by Life Advance LLC by compelling the deponent and his

counsel to appear in person.

Respectfully submitted on 10/27/2021.

Law Offices of Benjamin W. Gale

__/s/__________________________________

Benjamin W. Gale, Attorneys for California Energy Development Corporation, Inc.

Benjamin W. Gale, SBN 107985

LAW OFFICES OF BENJAMIN W. GALE

2 810 E Street

San Rafael, California 94901

3 Email: bengalelaw@gmail.com

Tel: 415-492-9800; Fax: 415-795-4636

5 Attorney for California Energy Development, Inc.

7 THE UNITED STATES DISTRICT COURT

8 IN AND FOR THE SOUTHERN DISTRICT OF CALIFORNIA

PRUCO LIFE INSURANCE COMPANY, an Case No: 18-CV-2280 DMS AHG

10 Arizona Corporation,

DECLARATION OF JASON VOELKER IN

Plaintiff, SUPPORT OF PROTECTIVE ORDER TO

12 ALLOW DEPOSITION TO TAKE PLACE

vs. OUTSIDE THE SOUTHERN DISTRICT OF

13 CALIFORNIA

CALIFORNIA ENERGY DEVELOPMENT,

INC., et al.,

Defendants.

17 CALIFORNIA ENERGY DEVELOPMENT,

INC., et al.,

Cross-Claimant,

19 vs.

PRUCO LIFE INSURANCE COMPANY, an

21 Arizona Corporation; TIMOTHY BRYSON, an

individual; MICKEY NICHOLSON, an

22 individual; JOHN J. WALSH, an individual;

EDWARD SPOONER, trustee of the LIVING

TRUST OF EDWARD SPOONER; LIFE

24 ADVANCE, LLC, a Nevada limited liability

corporation; and JASON VOELKER, an

25 individual

Cross-Defendants.

AND RELATED CROSS-CLAIMS

1 I, Jason Voelker, hereby declare:

2 1. I am a resident of Marin County, California, and work in the San Francisco Bay Area.

3 I am currently employed by the Contra Costa County Superior Court where I serve as

4 a research librarian in both the Richmond and Martinez Court Branches. I also serve as

5 a contract paralegal for various attorneys in the Bay Area.

6 2. In addition to the above duties, I serve as the Secretary of California Energy

7 Development Inc. (“CEDI”), a dissolved California corporation. The current place of

8 business for CEDI is in San Rafael, California.

9 3. The corporate file is kept by the Law Offices of Benjamin W. Gale, Esq., at 810 E

Street, San Rafael, California. The only business of CEDI at present is conducted

through Mr. Gale’s office.

4. Life Advance LLC has subpoenaed me to attend a two-day deposition in Southern

California in this action.

5. The exact location of the deposition is 2163 Newcastle Ave STE 200, Cardiff, CA

92007, which, according to my online map, is 488 miles from my home. By road, the

total trip would be more than 500 miles each way.

6. The subpoena requests that I bring CEDI’s entire corporate file, which I would need to

assemble through the Law Offices of Benjamin Gale in San Rafael. I would then need

to transport the file to Southern California by plane, and then rent a vehicle to drive to

Cardiff to attend the deposition.

7. To ensure that I am timely, I would need to likely arrive a day early, obtain a hotel,

and then drive to the deposition in the morning.

8. Neither CEDI nor I have any funds to pay the costs associated with this trip. CEDI’s

former CEO James Roberts misappropriated all of CEDI’s funds before he died, and

my checking account balance is currently less than $600. Also, I cannot afford to take

more than one day off work and still support my family. My wife does not contribute

to family income, as she is fully employed caring for our two daughters.

1 9. My daughters are both under the age of 3. Due to the current Pandemic, I have

2 extreme trepidation about traveling through airports and long-distance travel, because

3 the US Food and Drug Administration (“FDA”) has not yet approved a vaccine for

4 kids under the age of 5.

5 10. While the FDA has recently recommended Pfizer’s Covid 19-vaccine to children over

6 the age of 5, the FDA still needs to give the vaccine official authorization, and another

7 independent committee to the US Centers for Disease Control and Prevention will

8 issue guidance next week on how shots roll out, but no vaccines are yet available for

9 my daughters.

11. Because of the Pandemic, and because my daughters have yet to be vaccinated, I am

hesitant to travel. But, as noted above, I do not currently have the economic means at

this time to afford the costs associated with such travel.

12. Based upon the above, I am requesting that the Court allow me to attend the

deposition via Zoom video conference and submit the requested documents

electronically through DropBox, Google Docs, or another electronic document

service.

13. If the Court determines that I must attend the deposition in person, I would ask that the

opposing side pay my related expenses.

I declare under penalty of perjury under the laws of the state of California that the foregoing is

true and correct and that this declaration was executed in San Rafael, California.

Dated: 10/27/2021

/s/

Jason Voelker

GALE AND VOLKER DEPOSITION-RELATED EXPENSES

Air fares……………………………………………………………………… $500

Gale’s lost hourly billings @ $375/hr x 4 hrs………..…… 1,500

Rental car…………………………………………………………..……… 150

Per diem meals………………………………………………..………… 100

Total: $2,250

1 Russell M. De Phillips; (CSB #95034)

Roy L. Carlson, Jr.; (CSB #123553)

2 MILBERG & DE PHILLIPS, P.C.

2163 Newcastle Avenue, Suite 200

3 Cardiff by the Sea, CA 92007-1824

Telephone: (760) 943-7103

4 Facsimile: (760) 943-6750

5 Attorneys for Defendant and Cross-Claimant,

Life Advance, LLC

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

11 PRUCO LIFE INSURANCE COMPANY, an Case No. 18cv2280-DMS-AHG

Arizona Corporation,

12 LIFE ADVANCE, LLC’S OPPOSITION TO

Plaintiff, REQUEST FOR PROTECTIVE ORDER TO

13 ALLOW DEPOSITION TO TAKE PLACE

v. OUTSIDE THE SOUTHERN DISTRICT OF

14 CALIFORNIA

CALIFORNIA ENERGY DEVELOPMENT,

15 INC., a dissolved California Corporation,

TIMOTHY BRYSON, an individual,

16 MICKEY NICHOLSON, an individual, Assigned to HON. DANA M. SABRAW

JOHN J. WALSH, an individual, EDWARD

17 SPOONER, trustee of the LIVING TRUST

OF EDWARD SPOONER, LIFE ADVANCE, DATE: October 28, 2021

18 LLC, a Nevada corporation, JASON TIME: 3:00 p.m.

VOELKER, an individual; AND DOES 2-10, DEPT: 3B

Defendant. To be heard by HON. ALLISON H.

20 GODDARD via zoom

21 AND RELATED CROSS-ACTION.

_____________________________________

24 California Energy Development Inc. (“California Energy”) seeks to have the Court order that

25 the deposition of Jason Voelker (“Voelker”), both as a party witness and as the designated

26 representative of California Energy, be taken remotely or outside the Southern District of

1 California.1 This comes after both California Energy and Voelker individually failed to appear for

2 their duly noticed depositions. Life Advance, LLC (“Life Advance”) incurred costs in connection

3 with those failures to appear.2

4 The deposition of Voelker was noticed in July and the deposition of California Energy was

5 noticed in September. That California Energy is only now seeking to change the location of the

6 depositions smacks of bad faith. A motion for a protective order could have been served weeks ago

7 that actually gives Life Advance an adequate opportunity to respond to the authorities presented by

8 California Energy.

9 In the statement of legal authority presented by California Energy in support of its request

10 and in the accompanying declaration of Mr. Voelker sent to Life Advance the afternoon of October

11 27, 2021, California Energy incorrectly states that Life Advance has noticed Voelker’s deposition

12 as a representative of California Energy and that Voelker was subpoenaed to attend a two-day

13 deposition (Voelker Declaration at ¶ 4.).

14 Life Advance served a Notice of Taking Deposition of California Energy Development Inc.

15 and Request for Production of Documents subpoena on California Energy under Rule 30(b)(6) of

16 the Federal Rules of Civil Procedure on September 24, 2021. A deposition was noticed for October

17 15, 2021. Life Advance requested that California Energy designate the person or persons most

18 knowledgeable and prepared to testify on behalf of California Energy concerning the following

19 matters:

20 For the period from October 1, 2015 to the present, the identity of all officers of

California Energy Development Inc.

For the period from October 1, 2015 to the present, the identity of all directors of

22 California Energy Development Inc.

23 For the period from October 1, 2015 to the present, the identity of all shareholders

25 1 It is unclear whether Jason Voelker has filed his own motion to change the location of

26 his deposition as a party witness or whether California Energy’s counsel, Benjamin Gale, is now

representing Mr. Voelker and pursuing a change on his behalf.

2 Life Advance was not served with an actual motion for a protective order and reserves

28 the right to submit a more complete opposition as it was given less than 24 hours notice of the

1 of California Energy Development Inc.

2 For the period from October 1, 2015 to the present, the identity of all creditors of

California Energy Development Inc.

For the period from October 1, 2015 to the present, the identity of all employees of

4 California Energy Development Inc.

5 For the period from October 1, 2015 to the present, the identity of all investors of

California Energy Development Inc.

For the period from October 1, 2015 to the present, the business operations of

7 California Energy Development Inc.

8 For the period from October 1, 2015 to the present, the relationship between Janson

& Associates Global Consulting and California Energy Development Inc.

For the period from October 1, 2015 to the present, the relationship between US

10 Energy Concepts, Inc. and California Energy Development Inc.

11 For the period from October 1, 2015 to the present, the relationship between Mickey

Nicholson and California Energy Development Inc.

For the period from October 1, 2015 to the present, the relationship between Texas

13 Energy Concepts, Inc. and California Energy Development Inc.

14 For the period from October 1, 2015 to the present, the relationship between Centrair

Energy, Inc. and California Energy Development Inc.

For the period from October 1, 2015 to the present the amount of compensation

16 earned by Mickey Nicholson from California Energy Development, Inc.

17 For the period from January 1, 2016 to the present, the premiums paid by California

Energy Development Inc. for the Term Elite life insurance policy, Policy No. L9 301

18 242 originally issued by PRUCO LIFE INSURANCE COMPANY on or about

January 23, 2016 (“the Policy”).

For the period from October 1, 2015 to the present, the corporate authority of

20 California Energy Development Inc. to purchase the Policy.

21 For the period from October 1, 2015 to the present, the corporate records of

California Energy Development Inc.

The corporate authority to file the civil suit in San Diego Superior Court, Case No.

23 37-2016-00015524-CU-BT-CTL.

24 For the period from October 1, 2015 to the present, any consideration received by

California Energy Development Inc. for issuance of any equity security interest in

25 California Energy Development Inc.

26 California Energy apparently has designated Voelker to testify on its behalf. Life Advance

27 did not specifically name Voelker in this Notice and has serious doubts that Voelker has personal

28 knowledge of the areas sought to be discovered. There was no appearance by any representative of

1 California Energy at the noticed deposition on October 15, 2021, and Life Advance incurred $600.85

2 in court reporter costs (attached) plus $150 for attorneys fees.

3 Life Advance served a Notice of Taking Deposition of Jason Paul Voelker and Request for

4 Production of Documents on Voelker on July 15, 2021. The deposition was noticed for October 14,

5 2021. Voelker failed to appear for his deposition on October 14, 2021, and Life Advance incurred

6 $250.00 in court reporter costs (attached) plus $150 for attorneys fees.

7 Now, after failing to appear at two depositions, California Energy seeks to have the re-

8 noticed depositions of California Energy and Voelker taken elsewhere.

9 In the Declaration of Jason Voelker in Support of Motion of Defendant California Energy

10 Developments, Inc., to Set Aside Defaults dated November 6, 2020 (ECF No. 193-2), Mr. Voelker

11 attaches a copy of the Statement of Information for California Energy filed with the Secretary of

12 State on November 9, 2015, as Exhibit 1 to his declaration. The principal executive office and the

13 principal business office are listed as being in San Diego, CA.

14 The Statement of Information for California Energy filed on July 19, 2016, lists the principal

15 executive office as being in San Diego, CA.

16 The website of the California Secretary of State, Business Search - Entity Detail, as of

17 October 27, 2021, lists the address for California Energy as being in San Diego, CA.

18 Voelker now claims that the current place of business of California Energy is in San Rafael,

19 CA. (Voelker declaration at ¶ 2.)

20 In 2014, now retired Magistrate Judge Jan M. Adler of the Southern District of California

21 issued an opinion on the location of depositions for a corporate party. He stated:

22 Ordinarily, the deposition of a party may be noticed wherever the deposing party

designates, subject to the Court's power to grant a protective order." Fausto v.

23 Credigy Services Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008) (citation and internal

quotations omitted). However, there is a general presumption that the "deposition of

24 a corporation by its agents and officers should ordinarily be taken at its principal

place of business." Aerocrine AB v. Apieron, Inc., 267 F.R.D. 105, 108 (D. Del.

25 2010) (citing 8A C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure

§ 2112 (2d ed. 1994)). This presumption can be overcome upon consideration of the

26 following factors: (1) the location of counsel for the parties in the forum district; (2)

the number of corporate representatives a party is seeking to depose; (3) the

27 likelihood of significant discovery disputes arising which would necessitate

resolution by the forum court; (4) whether the persons sought to be deposed often

28 engage in travel for business purposes; and (5) the equities with regard to the nature

1 of the claim and the parties' relationship. Cadent Ltd. v. 3M Unitek Corp., 232

F.R.D. 625, 628-29 (C.D. Cal. 2005) (citing Armsey v. Medshares Mgmt. Servs.,

2 Inc., 184 F.R.D. 569, 571 (W.D. Va. 1998)). Notwithstanding the general rule,

"corporate defendants are frequently deposed in places other than the location of the

3 principal place of business, especially in the forum where the action is pending, for

the convenience of all parties and in the general interests of judicial economy."

4 Cadent, 232 F.R.D. at 629. Because Imageware does not explain whether it seeks to

conduct the depositions in San Diego or Dallas, in examining the Cadent factors, the

5 Court considers both cities as possible locations for the depositions if they were to

proceed in the United States. Imageware Sys. v. Fulcrum Biometrics, LLC, 2014

6 U.S. Dist. LEXIS 193601, *6 (S.D. Cal. 2014).

7 Life Advance asserts that the last place of business for California Energy was in the Southern

8 District of California and the deposition of California Energy should be taken here.

9 With respect to the factors outlined by Judge Adler, the following are present:

10 1) Location of counsel. Counsel for Life Advance and pro per party Mr. Nicholson are

11 located in San Diego in the forum district. Counsel for California Energy and pro per party Mr.

12 Voelker are in Northern California.

13 2) Number of corporate representatives. California Energy has designated one person for

14 its deposition.

15 3) Likelihood of significant discovery disputes. As the Court acknowledged, there have been

16 plenty of discovery issues in this case.

17 4) Travel for business purposes. In the Declaration of Jason Voelker in Support of Motion

18 of Defendant California Energy Developments, Inc., to Set Aside Defaults dated November 6, 2020

19 (ECF No. 193-2), Mr. Voelker attaches Minutes of Special Meeting of the Shareholders of

20 California Energy Development, a California Corporation, Held on September 29, 2020 at 2:00 p.m.,

21 at the Oceanic Conference Room, 141 North Magnolia Avenue, El Cajon, CA 92020 as Exhibit 11

22 to his declaration. The minutes reflect that Mr. Voelker was present at the meeting, in the Southern

23 District of California. Thus, he has already traveled to the Southern District for business purposes.

24 5) Equities. California Energy designated Voelker. As far as Life Advance knows,

25 California Energy is not doing business and Voelker is not an employee of California Energy but

26 an officer. Voelker would already be present in this District attending his deposition with respect

27 to claims he asserted against Life Advance. California Energy failed to attend its duly noticed

28 deposition and forced Life Advance to incur unnecessary expenses.

1 The claims at issue involve a life insurance policy that was originally acquired by a

2 company doing business in the Southern District and was subsequently acquired by a company

3 doing business in the Southern District, and the Policy proceeds are currently held by the clerk in

4 the Southern District. California Energy, and Voelker, elected to pursue their claims against Life

5 Advance here.3 Those are not simply claims to the Policy as part of the interpleader action, but

6 claims seeking affirmative relief against Life Advance. While the fact that these claims are

7 permissive, standing alone, does not dictate the location of the depositions, it is not unreasonable

8 under all of the circumstances to have the deposition of California Energy conducted here. San

9 Diego is where California Energy did business and where it chose to have a shareholder meeting last

10 year.

11 Judge Anthony J. Battaglia of the Southern District of California issued an opinion when he

12 was a Magistrate Judge in 2009 regarding the location of a party deposition:

13 [T]he Court must weigh the following factors when determining whether to grant a

protective order to a defendant seeking to relocate the deposition to a site closer to

14 the defendant's residence: (1) a special showing of hardship on the part of the

defendant to be deposed; (2) the time and expense required for the plaintiff to travel

15 to the deponent's location to take the deposition; (3) the absence of a U.S. federal

judge in the defendant's location, making it difficult to rule on objections; (4)

16 whether defendant had initiated other lawsuits in the forum where the deposition is

presently noticed; and (5) the location of the plaintiff's and defendant's attorneys. See

17 Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994); Haymes v. Columbia

Pictures Corp., 16 F.R.D. 118, 123 (S.D.N.Y. 1954). Photothera, Inc. v. Oron, 2009

18 U.S. Dist. LEXIS 135857, *5 (S.D. Cal. 2009).

19 There is no special hardship for Mr. Voelker to attend his deposition in the Southern District.

20 Similar to the reasons set forth above for California Energy, the deposition of Voelker should be

21 taken in the Southern District.

22 Counsel for Life Advance has determined that in person depositions are much more effective

24 3 "A pleading may state as a crossclaim any claim by one party against a coparty if the

claim arises out of the transaction or occurrence that is the subject matter of the original action or

25 of a counterclaim or if the claim relates to any property that is the subject matter of the original

action...." Fed.R.Civ.P. 13(g). "Such cross-claims are permissive rather than mandatory."

Peterson v. Watt, 666 F.2d 361, 363 (9th Cir. 1982). In other words, crossclaims are not waived

27 if a party fails to assert them and they can be pursued in a separate action. Id. Once Pruco filed

its Second Amended Complaint for Interpleader and named California Energy, Voelker and Life

28 Advance as defendants, they became co-parties and the claims brought against Life Advance by

1 than depositions taken by remote means. The depositions of Mr. Voelker and California Energy are

2 extremely important. As an accommodation to the deponents, Life Advance will waive its right to

3 seek sanctions of $1,150.85 for the failure of Mr. Voelker and California Energy to appear for their

4 duly noticed depositions and pay $500.00 to the deponents to defray their expense for in person

5 deposition in the Southern District.

6 DATED: October 28, 2021 MILBERG & DE PHILLIPS, P.C.

By: /s/ Russell M. De Phillips

8 Russell M. De Phillips

Attorneys for Defendant and Cross-Claimant

9 Life Advance, LLC

LINVULUE 1.

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R P O RR FT FN G

ee eee ree eee Job Date Case No.

HOOF | foals 957 1699 10/15/2021 18cv2280-DMS-AHG

Case Name

Pruco Life Insurance Company v. California Energy

Development, Inc., et al.

Russell M. De Phillips, Esq.

Milberg & De Phillips, PC Payment Terms

2163 Newcastle Ave., Suite 200

Cardiff By The Sea, CA 92007 Due upon receipt

OF NON-APPEARANCE:

Designee of California Energy Development Inc. 600.

TOTAL DUE >>> □□□□□

ocation of Job: Milberg & De Phillips, PC

2163 Newcastle Ave., Suite 200

Cardiff By The Sea, CA 92007

DUE UPON RECEIPT AND IS NOT CONTINGENT UPON YOUR CLIENT'S PAYMENT.

accepting receipt of the transcript and/or court reporting/videography/videoconferencing/records and any attorney services identified

bove, the attorney/law firm/court reporting firm invoiced above accepts liability for its payment and for all collection of legal fees

by default in payment.

reference your invoice number(s) for proper remittance.