Motion In LimineCal. Super. - 6th Dist.July 19, 2016Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/27/2019 11:54 AM Reviewed By: L. Wang Case #16CV297817 Envelope: 3062913 16CV297817 Santa Clara - Civil L. Wang \OW‘QOWUI-me-t MMMNMNNN'NHHH.-_HHHHH oommm-pwmwoxoooxloxmgwmwo Cary Kletter (SBN 21023 0) Rachel Hallam (SBN 306844) KLETTER LAW 1900 S. Norfolk Street, Suite 350 San Mateo, CA 94403 P: 415.434.3400 Attorneys for Plaintiff, BRYAN GARRISON SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION BRYAN GARRISON, )CASE NO. 16 CV 297817 Plaintiff gPLAINTIFF’S MOTION INLIMINE T0 ’ EXCLUDE EVIDENCE WITHHELD gnURING DISCOVERY v. ) SUMMIT ESTATE, INC; and DOES 1 )Plaintiff’s Motion in limine #1 THROUGH 20, inclusive, ) ) Defendants. )Trial Date: July 8, 2019 SUMMIT ESTATE, INC., a California Corporation, Cross- Complainant, V. BRYAN GARRISON, an individual and DOES 1-20 inclusive, Cross- Defendant. Vvvvvvvvvvvv I. INTRODUCTION Plaintiff BRYAN GARRISON (“Plaintiff’) hereby moves this Court for an order excluding any and all evidence, references to evidence, records, testimony, video recordings or opinion relating to information requested by Plaintiff but Withheld by Defendant Summit PLAINHFF’S MOTION 1N LIMINE To EXCLUDE EVIDENCE WITHHELD DURING DISCOVERY _ 1 - \OOOQQUI-bww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Estate, Inc. (“Summit”) during discovery. Plaintiff brings this Motion as a precautionary measure to ensure that no unfair surprises are sprung 0n him at trial. Summit’s counsel repeatedly instructed Witnesses not t0 answer questions during depositions (often without asserting any privilege whatsoever). Plaintiff filed a motion t0 compel production which was granted. Defendant’s witnesses did not bring t0 depositions all documents responsive t0 the document requests attached to the notices, in fact Defendant’s Witnesses admitted they did not even 100k for all responsive documents. Thus it would be manifestly unfair if Defendant was able t0 produce evidence at trial that was never given t0 Plaintiff or if witnesses could comment 0n the very same topics at trial they had refused to answer during their depositions. A central purpose 0f discovery is to eliminate unfair surprise at trial. Davies v. Superior Court (1984) 36 Cal.3d 291. Plaintiff contends that Summit possess information and documentation Which it Withheld, at times based upon its counsel’s instructions not t0 answer questions at deposition, and at times based 0n failure t0 produce records. Summit should not be permitted t0 attempt t0 use that information t0 its advantage at trial. Further, Summit should be precluded from offering any evidence (testimony 0r documents) as a counter t0 Plaintiff‘s evidence, Where said evidence has been Withheld during discovery. II. FACTUAL BACKGROUND Summit may attempt to argue or introduce evidence that it has withheld from Plaintiff in this litigation. Specifically, during depositions, Summit consistently refused to answer and Summit’s counsel instructed its witnesses not t0 answer a number of questions asked by Plaintiff’s counsel. The information withheld from Plaintiff by Summit included, but are not limited to, the following: 1. During Annette Patsuris’ Person Most Kflowledgeable re: classification 0f Garrison as exempt V. non-exempt deposition she was instructed not t0 answer and refused to answer questions about whether she ever had t0 make any determination in any 0f her previous positions about whether any employees should be classified as exempt under the California labor code. See Excepts from her PMK deposition transcript attached hereto as Exhibit A, page 46 line 12 - page 47 line 18 and page 48 lines 8- 15. Since this evidence was withheld from Plaintiff during the discovery phase of PLAINTIFF’S MOTION 1N LIMINE TO EXCLUDE EVIDENCE WITHHELD DURING DISCOVERY - 2 - #WN ONDOOQQKII 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 Ex.) this case, it would be prejudicial for Summit t0 present testimony at trial about whether Ms. Patsuris ever made such a determination in her previous positions. During Ms. Patsuris’ PMK re: pay t0 Garrison deposition she said she did not know whether Garrison was paid for working on Christmas 0f 2015. Since this evidence was withheld from Plaintiff during the discovery phase 0f this case, it would be prejudicial for Summit to present any testimony 0r evidence at trial about whether Mr. Garrison was paid for working 0n Christmas 2015. During Ms. Patsuris’ PMK re: Disability Accommodations Provided By Summit deposition, she was instructed not t0 answer and refused to answer the question “So Why didn’t you take the step 0f sending an e-mail, a letter, a fax 0r a text to Dr. Perez to ask him t0 explain the language [“temporarily totally disabled”] that you were confused about?” See Excepts from her PMK deposition transcript attached hereto as Exhibit B, page 196 lines 2-14. Since this evidence was withheld from Plaintiff during the discovery phase of this case, it would be prejudicial for Summit t0 present testimony at trial about why Summit did not d0 this; During Ms. Patsuris’ PMK re: classification 0f Garrison as exempt V. non-exempt deposition she did not answer the question “Isn’t it true that Summit Should have classified Bryan Garrison as an employee the first day he started performing services for Summit, and instead Summit characterized him improperly as an independent contractor?” See Excepts from her PMK deposition transcript attached hereto as Exhibit C, page 215 line 15 - 21. Since this evidence was Withheld from Plaintiff during the discovery phase Ofthis case, it would be prejudicial for Summit. t0 present testimony at trial about Whether Summit improperly classified him an independent contractor. During Ms. Patsuris’ PMK re: classification 0f Garrison as exempt V. non-exempt deposition she was asked “Isn’t it true that the characterization 0f a person as an employee 0r as an independent contractor is based largely on duties and control over the employee?” Ms. Patsuris responded that she did not know “what the parameters” are. See Excepts from her PMK deposition transcript attached hereto as Exhibit D, page 216 line 24-25. Since Ms. Patsuris said that she doesn’t know what the parameters 0f classification as an independent contractor are, and since she PLAINTIFF’S MOTION 1N LIMINE T0 EXCLUDE EVIDENCE WITHHELD DURlNG DISCOVERY - 3 - DWN \DOO\JO\UI 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 was at that time testifying as the PMK for Summit, Summit must not be permitted to provide evidence that it knew What the parameters 0f classification of an independent contractor were at any time because it would be prejudicial for Summit to present testimony at trial about whether Summit knew What the parameters of an independent contractor are. During her PMK deposition, in response to questions about preservation 0f evidence, Ms. Patsuris testified that Summit employees Tim Sinnot and Donna Miller deleted emails. See Excepts from her PMK deposition transcript attached hereto as Exhibit E, page 225 lines 8-21. Since Ms. Patsuris said that emails were deleted after Plaintiff’s counsel sent a letter t0 Summit informing Summit t0 preserve evidence, Summit must not be permitted to provide evidence 0f anything allegedly contained in those deleted emails because it would be prejudicial for Summit t0 present testimony at trial regarding evidence that was destroyed after Plaintiff’s counsel instructed Summit t0 ensure it preserved evidence. During the deposition 0f Paul Ponomarenko, CEO 0f Summit, Defendant’s counsel instructed Mr. Ponomarenko not t0 answer questions about Whether Mr. Ponomarenko or Mr. Ponomarenko’s parents owned the real estate where Summit does business and whether Summit has a lease for the residential facility located at 399 Old Mill Pond Road in Los Gatos. Mr. Ponomarenko followed those instructions and refused t0 answer those questions. See Excerpts from Mr. Ponomarenko’s deposition attached hereto as Exhibit F. Since this evidence was withheld from Plaintiff during the discovery phase of this caSe, it would be prejudicial for Summit t0 be able t0 present testimony at trial about whether Mr. Ponomarenko 0r his parents own the real estate Where Summit does business 0r whether there is a lease for the residential facility. During the deposition 0f Mr. Ponomarenko, Defendant’s counsel instructed Mr. Ponomarenko not t0 answer questions about Whether having more than six clients living on site was out 0f compliance With Summit’s rehab facility license. Mr. Ponomarenko followed those instructions and refused to answer those questions. See Excerpts from Mr. Ponomarenko’s deposition attached hereto as Exhibit G. Since this evidence was withheld from Plaintiff during the discovery phase of this PLAINTIFFS MOTION IN LIMINE T0 EXCLUDE EVIDENCE WITHHELD DURING DISCOVERY _ 4 _ OOQQU‘I-h H CC 10. 11. case, it would be prejudicial for Summit t0 be able t0 present testimony at trial about whether having more than six clients living on site was out 0f compliance With its license 0r not. During the deposition 0f Mr. Ponomarenko, Defendant’s counsel instructed Mr. Ponomarenko not to answer questions about whether Summit ever had a license to have more than Six patients living 0n its residential site and if it ever had a license t0 have any patients reside at its outpatient site. Mr. Ponomarenko followed those instructions and refused t0 answer those questions. See Excerpts from Mr. Ponomarenko’s deposition attached hereto as Exhibit H. Since this evidence was Withheld from Plaintiff during the discovery phase of this case, it would be prejudicial for Summit t0 be able t0 present testimony at trial about Whether it ever had a license to have more than six clients living 011 site at any time. This is not private information, it is information that should be available to the public as a public record of state licensure. During the deposition 0f Mr. Ponomarenko he was asked if he had an Specific. recollections 0f any false statements that M1“. Garrison had made and M1“. Ponomarenko said that he did not. See excerpts from Mr. Ponomarenko deposition from April 25, 2018, page 43 line 16 attached hereto as Exhibit I. Thus Mr. Ponomarenko should be precluded from making statements at trial that he recalls any specific false statements that Mr. Garrison allegedly made. Plaintiff’s counsel requested that Summit provide schedules showing the dates and times Plaintiff worked and those schedules were never provided by Defendant. Since this evidence was Withheld from Plaintiff during the discovery phase 0f this case, it would be prejudicial for Summit t0 present evidence 01' Testimony at trial about the schedules worked by Garrison. . Plaintiff’s counsel requested that Summit provide the date that Plaintiff commenced working for Summit and that information was never provided by Defendant. Since this evidence was Withheld from Plaintiff during the discovery phase 0f this case, it would be prejudicial for Summit t0 present evidence 0r testimony at trial about the date Garrison commenced working for Defendant. PLAIN’I'IFF’S MOTION 1N LIMINE TO EXCLUDE EVIDENCE WITHHELD DURING DISCOVERY _ 5 _ \DOOQQMALDNp-I NNNNNNNNNr-‘r-‘H ooqoxmhmwflowooqERGESB’ZS Defendants chose t0 instruct a Witness to not answer questions, t0 withhold evidence from Plaintiff and not to answer Plaintiff’s questions during the deposition to block Plaintiffs access to relevant information in this litigation. In making such tactical decisions, Defendant cannot now try to waive the privileges 0r other basis it asserted and cannot attempt t0 admit such evidence at trial. IIII. LEGAL ARGUMENT Defendant cannot now produce evidence previously objected to on privilege or other grounds. In re Marriage ofHofi‘meisz‘er (1984) 161 Ca1.App.3d 1163, 1171; A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566 (defendant precluded from testifying about matters to which privilege was asserted in discovery). Underlying this rule is the policy that litigants could not be permitted t0 “blow hot and cold” by claiming privilege during discovery and then waiving it at trial, because such a strategy subjects the opposing party to unwarranted surprise. A&MRecords, supra, 75 Cal.App.3d at 566. Exclusion of evidence, witnesses and/or testimony at trial is an appropriate remedy for the willful refusal 0f a party t0 provide discovery that should have been produced in response t0 a valid discovery demand. Deeter v. Angus (1986) I79 Ca1.App.3d 241, 254-55 (evidence was excluded on the ground that the proponent 0f the evidence had not disclosed it during discovery). A litigant cannot convert the shield of privilege into a sword to deny discovery yet waive the privilege self-servingly When needed at trial. Dwer v. Croker National Bank (1987) 194 Cal.App.3d 1418, 1432 (upholding order excluding admission 01* use of evidence and documents t0 Which party asserted privilege obj actions during discovery). In the present case, Plaintiff sought specific information in multiple depositions, and was met with instructions not to answer on privilege and other grounds. Having done so, Defendant is stuck with their tactical decisions and cannot now try to admit at trial the evidence Withheld from Plaintiff in discovery. IV. CONCLUSION Plaintiff requests that this Court grant his Motion in limine and enter an Order admonishing Defendant, their counsel (if any), and their witnesses not to attempt to introduce any documentary and/or testimonial evidence which was requested by Plaintiff but withheld by PLAINTIFF’S MOTION INLIMINE TO EXCLUDE EVIDENCE w1TI-IHELD DURING DISCOVERY _ 6 - \DOOQONUi-h-UJNp-A [\J N DJ N [\J [\J N [\J {\J b-I u-A p-a p-a >-‘ H r-n |_- )-- H 00 Q ON U1 A U) N H O \O 00 fl O\ U1 -P W N *-‘ O Defendant in discovery, and not to suggest, comment directly or indirectly on, 0r refer t0 the evidence not produced in any way. Date: June 19, 2019 KLETTER LAW Cary K tter Attorne 0r Plaintiff BRYAN GARRISON PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE EVIDENCE WITHHELD DURING DISCOVERY -7- EXHIBIT A 10 ANNETTE PATSURIS ~ October 27, 2016 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION BRYAN GARRISON, an individual, CASE NO. Plaintiff, 16CV297817 vs. SUMMIT ESTATE, INC.; and DOES Volume I 1-20, inclusive, Defendants. Pages l - 77 DEPOSITION 0F ANNETTE PATSURIS VOLUME I Thursday, October 27, 2016 Reported by: KAREN A. AUFDERMAUR, CSR #10919 JAN BROWN & ASSOCIATES WORLDWIDE DEPOSITION & VIDEOGRAPHY SERVICES 701 Battery Street, 3rd Floor, San Francisco, CA 94111 (415) 981-3498 or (800) 522-7096 JAN BROWN & ASSOCIATES (415) 981-3498 (800) 522-7096 ’18 19 20 21 22 .23 24 25 ANNETTE PATSURIS - October 27, 2016 MR. SINGH: You can -- I'm going to instruct you Inot to answer on the basis of third~party rights of privacy. MR. KLETTER: Q. Okay. And you're going to follow his instruction? A. Yes, I am. Q. Did you do that anywhere other than SCIenergy? A. I have done that in my work experience, yes. Q. Okay. And where did you do that? MR. SINGH: Same objection. Third-party'right'to privacy regarding who they use and how they make decisions, particularly if there are liabilities involved, if they‘have an active case involved, how her response could subject her to liability, could subject the company to liability. So I'm going to instruct her not to answer. MR. KLETTER: Q. So have you ever received any certificates or degrees in human resources? A. No degree. I'm actually preparing for my SPHR exam next month. I do take -- regularly I take seminars, mostly provided by CaIChamber HR California. Those are CE units since I already have an SPHR. Q. When did you begin that program? A. W911, it's an ongoing process. You have to have so many years and so many hours in, but I decided to finally go for the certificate probably mid -- midyear 48 JAN BROWN & ASSOCIATES (415) 981-3498 (800) 522~7096 ANNETTE PATSURIs - October 27, 2016 A. Organizational development. And during that -- that's HR. Q. Didn't catch that. Organizational development of HR. A. Yes. So when acquiring companies, I go in and assess everybody's role, what they do, and I determine how it should look if and when that acquisition is completed. Additionally once an acquisition is done or we're transitioning from one entity to another, I generally do a transition. So in that case I worked with the HR department a lot. 217 employees in 11 states. Q. Okay. And in that role did you ever have to make any determination about whether any employees should be classified as exempt under the California Labor Code? MR. SINGH: I mean, I would like to caution you to exercise extreme caution,on what you did there specifically with the processing of employees. I believe that is protected third-party private information. If you can answer his question very generally without violating third-party rights of privacy, you can answer. THE WITNESS: The most I can say is I conferred with the SPHR. Beyond that I do have confidentiality agreements in place with every company I've worked with. So I can't go into detail. I can‘t even tell you the entities that were involved. 46 JAN BROWN & ASSOCIATES (415) 981-3498 (800) 522-7096 ANNETTE PATSURIS - October 27, 2016 MR. KLETTER: Q. Okay. All I want to know is if you made decisions about the classificatio n of employees in California. MR. SINGH: And I actua lly really strongly caution you again that that question as it is worded requires you to disclos e what I believe in my experience with mergers and acqu isitions thirdeparty private information about corp orate employees and practices. ‘THE WITNESS: Right. MR. SINGH: I would ca fition you -- I would instruct you not to answer. I think that would be safer to not get into this at this point to prote Ct you and also protect third-party r ights to privacy. I'll instruct you not to answer that question. THE WITNESS; Okay. MR..KLETTER: Q. And y ou're going to follow h is instructions? A. Yes, I am. Q. Okay. So ha ve you ever anywhere ever made determinations about the classification of employees as exempt or not exempt under the California Labor Code? MR. SINGH: I have n o objection to that q uestion. THE WITNESS: Ever an ywhere. Yes. MR. KLETTER: Q. And did you do that in your role at SCIenergy? JAN BROWN & ASSOCIATE S (415) 981-3498 (800) 522-7096 EXHIBIT B :23 g24 .BRYAN GARRISON, Atkins-on-Baker Court Reporters www.depo .com SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ‘ CERW :a CW 1 Plaintiff, vs. No. 16CV297817 SUMMIT ESTATE, INC.; and DOES 1 THROUGH 20, inclusive, Defendant. DEPOSITION OF ANNETTE PATSURIS VOLUME I, AFTERNOON SESSION (Pages 78 u 230) SAN MATEO, CALIFORNIA OCTOBER 27, 2016 ATKINSONwBAKER, INC. COURT REPORTERS (800)288-3376 www.depo.com REPORTED BY: NATALIE Y. BOTELHO, CSR NO. 9897 FILE NO: AAOBAEA 78 Annette Patsuris October 27, 2016 Atkinson-B aker Court Reporters www.depo .com Dunsel. MR. KLETTER: Q. So why didn't you take the ,uep of sending an e~mail, a letter, a fax, or a text to Perez to ask him to explain the language that you §6re confused about? MR. SINGH: I am going to caution you that in I believe you cannot answer swering that question, at question without disclosing privileged -torney-client communication. Therefore, assuming Hat's correct, I'm going to instruct you not to answer. if my assumption is'incorrect, then you can go 'ead and answer. THE WITNESS: And that is correct. I would .five to disclose privileged information. MR. KLETTER: Q. Now I‘d like to look at ‘MMIT 345, please. That‘s in Exhibit Nofi 2. Okay. ent before? Have you ever seen this docum I have. This is a work status report‘from Thin Lin a ahonetic)? Yes. And this work status report provides that uld be off of work from October 29th yin Garrison sho - November l5th of 2015; is 3 December -- I'm sorry - 196 Annette Patsuris October 27, 20 16 '1 flfiflfim fififlfi EXHIBIT C AtkinsomBaker Court Reporters www.depo.com ' pends on what time period you‘re talking. But now, if have a new hire, I input t hem into ADP with documents ovided by the employee. MR. KLETTER: Q. Okay. So Bryan Garrison -sn‘t supposed to tell ADP, "Hey, I'm a new employee, I should'be put on the p ayroll"? He wasn‘t an employee until 5/23, based on the roll records. And it's clea r that he was being paid ADP, so if that was in e rror, agaih, that would be s personal responsibility, wouldn't it, to come to his x department or to his sup ervisor and say, "Hey, why am getting direct'deposits when I'm billing you as a tractor?" He knew he was get ting paid from both dg$.-IT§at would be his iesponsibility. J ién‘t it true that Summit shou ld have assified Bryan Garrison as an employee the first day started fierforming services for Summit, and instead *mmit characterized him impropér ly as an independent ntractor? I can't speak to that. I don‘t know what his :Gle was, how many days h e worked. I don‘t do that. What does the number of days he worked have to ‘9 with that analysis? MR. SINGH: Objection; cal ls for a legal tanclusion, argumentative. Annette Pétsuris October 2.7, 2016 215 :fififlflzhn t$fi€fl§ EXHIBIT D Atkinson-Baker Court Reporters www.dep0.com THE WITNESS: The number of days? It depends he's working full-time, if he's a contractor. aterers oftentimes work several days a week. They're 3t employees. They're contractors. If he was -- MR. KLETTER: Q. Maybe those people are properly classified as contractors, right? _. ' Well, that's something we‘ll have to take up I;th legislature, but I don't think that pertains here. . Well, isn't the analysis of whether someone hould be characterized -- hold on. Let me finish my Question. Then you can object. V MR. SINGH: _Go ahead. .gufh.m.uw&é; KLETTER: Q. Isn't it true that the haracterization of a person as an employee or an ndependent contractor is based largelyvon duties and ontrol over the employee? MR. SINGH: Objectidn; calls for a legal onclusion. And I just, again, also caution the witness o answer what you know about, and please be careful rabout answering with privileged attorney-client 3communication. THE WITNESS: I come frofi the start-up world, so contractors are not unusual. So to my knowledge, unless somebody is working -- you know, if -- well, I don't even know what the parameters would be. To my 216 Annette Patsuris (knober27,2016 mmafi i N B E X Atkinson-Baker Court Reporters wvnmdeposon1 wledge, contractors are not unusual. He had a tract. He was doing duties on the dates that he was ntracted. If you look at the run there,_they weren't nsecutive dates necessarily. So that could easily -- I can hire a caterer every other day of the week, d they are not an employee. So... 'HMR4 KLETTER: Q. Do you mean the same caterer 'different caterers? The same caterer. Every other day or every day? Either one. .If I'm hiring a service, if he as a contractor, he was providing a service as a usiness. Whether or not he had a business license ould not be -- that would be his responsibility, but Well, with all due respect, isn‘t it true that nto an independent contractor when they are, in fact, MR. SINGH: Objection; argumentative, calls -or a legal conclusion. I‘m coming very close to instructing her not to answer because right now it's fiecoming colloquy, and I think if a judge were to look at this transcript, they would conclude right now that there's no evidentiary motive in your questions, You're Annette Patsuris October 27, 20 1 6 g mmofi >¢fiflflzfifi EXHIBIT E Atkinson-Baker Court Reporters www.depo.com ek overlapping before Bryan went out. So when the rst -- when the incident happened, Tim was the one who ote up the report. And when the firét work status port came, I told Tim, and thereafter, I told Richard cause he was then the program director. And I'm sure at Tim was well aware, but he was not his direct pggvisp; any longer. r I showed you a document earlier about xeserving evidence. Yes. Did you ever send any e-mails to anyone that hey should preserve evidence and make sure it doesn't We -m no. Well, I spoke with Nausheen, who nages all of'the e-mail. We save all of the e-mail. )0 I spoke with Nausheen. She had locked down e-mail ccounts that were relative, anything that Bryan may iave -- who Bryan may have conversed with. fortunately, Tim had been deleting his as we went, so here was a lag of time where they were preserved. And onna had deleted everything. So we went through Bryan's, we went through 'Richard's, we went through Paul's, mine, Nausheen's. I 'can't think of anyone else. Probably Tim's, but Tim had already done most of it. Annette Patsuris October 27, 2016 225 DICE >utpati:ezitr tha3residential facility that is licensed to have an y ents reside there, rig ht? MR. SINGH: Objection, calls for an expert inion. Also relates to private coxporate m atters. xI”am g to instruct him not to answer. THE WITNESS: I will take the advice of counse l. MR. KLETTER: So, asid e from 399 Old Mill Pond u 1 L u; ‘ , L. 3 '5' S 4 r‘r n W u r: m Wu ‘ I,“ V H. ;. z :s V; *v I . n L [_ ‘ er‘v atmtrw W: “57.1%.:1 ‘2:WL=.Wt-‘m ‘12‘1'1m-wb “Wm Immrv‘ A aw; EXHIBIT I SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA --~oOo--- '4' BRYAN GARRISON; . CERTIFIED E x COPY- Plaintiff, vs. Case No. 16CV297817 SUMMIT ESTATE, INC.; PAUL PONOMARENKO; and DOES l through 20, inclusive, Defendants. DEPOSITION OF PAUL PONOMARENKO Wednesday, April 25, 2018 MACCHELLO & ASSOCIATES Certified Shogthand Reporters 1682 Ndvato;Blvd., Suite 34o Novato, California 94947 (415) 898-0401 1 i ‘ r :2 7; Reported By: Peggy Tsujimoto, CSR No. 5229 43 (Recess taken from 11:26 to 11:39) Q. BY MR. KLETTER: Going back to Exhibit No. 2, which is the crosswcomplaint, this is page 5, paragraph lO, around line l6 through 18, it says, "Bryan Garrison made false statements and/or representations to Summit that he was working for Summit on a full-time basis when, in fact, he was actively working on launching other businesses during Summit work hours." What false statements did he make? A. The agreement that we had with Bryan was for 4O hours a week, and he did not provide us with 40 hours a week of work because he was distracted starting multiple businesses, and he left early, came in late. UQ. Do you have any specific recollection of specific false statements that he made? A. I do not. Q. Also, it says representations to Summit. Do you have any specific recollection of any false representations that he made to Summit that he was working for someone on a fullmtime basis when he was, in fact, actively working on launching other businesses during Summit work hours? A. Again, he would leave early, come in late. He did not disclose to us that it was for business ~- outside business purposes. To the extent that he