Case Number: 20STCV42495    Hearing Date: April 24, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendant Mazda Motor of America, Inc.

OPPOSITION:                      Plaintiff Ivy Flores; Plaintiff Amanda Portobanco.

REPLY:                                 Defendant Mazda Motor of America, Inc.

Background

Plaintiffs Ivy Flores and Amanda Portobanco (Plaintiffs) sue Defendant Mazda Motor of America, Inc. (Mazda) and Does 1 through 20 pursuant to a Complaint alleging two Song-Beverly Consumer Warranty Act claims and an Unfair Competition claim pursuant to Business and Professions Code sections 17200, et seq. The claims arise from allegations that on April 12, 2018, Plaintiffs purchased a new 2018 Mazda CX-5 (Subject Vehicle), related to which Plaintiff received various express warranties from Mazda, only for the Subject Vehicle to exhibit or develop powertrain control module and transmission defects, acceleration issues, rear shock leaking, seatbelt malfunctions, abnormal noises, bouncy suspension, Bluetooth connectivity issues, lack of power, and startup issues, with Mazda’s authorized repair and service facilities failing to conform the Subject Vehicle to applicable warranties.

On September 22, 2022, Mazda noticed depositions and requests for production on Plaintiffs, to which Plaintiffs objected while simultaneously failing for weeks to agree to a new deposition date.

On October 19, 2022, Mazda therefore filed motions to compel depositions of and production of documents from Plaintiffs, along with corresponding requests for sanctions.

On April 11, 2023, Plaintiffs opposed the motions to compel.

On April 17, 2023, Mazda replied to the April 11th oppositions.

Both motions are now before the Court.

Motion to Compel Flores Deposition: GRANTED.

Legal Standard

A motion to compel nonparty attendance or production at a deposition can be made by the party that served the deponent on the grounds that (1) the nonparty deponent did not attend a deposition or appeared but refused to proceed with the deposition and (2) the nonparty deponent did not produce documents, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena. (See Sears, Roebuck, & Co. v. National Un. Fire Ins. (2005) 131 Cal.App.4th 1342, 1351; Code Civ. Proc., § 2025.450, subd. (a) [compel party deponent].) Although Code of Civil Procedure section 2025.450 does not apply to nonparties and section 2025.480 does not address attendance of nonparties, courts regularly consider and grant motions compelling nonparties to attend depositions and produce documents. (See, e.g., Terry v. SLICO (2009) 175 Cal.App.4th 352, 355 [court considered motion to compel nonparty to attend deposition]; Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, at p. 1351 [court held that subpoenaing parties can move to compel when a nonparty deponent did not appear at deposition or produce documents]; Brun v. Bailey (1994) 27 Cal.App.4th 641, 645-646 [court considered motion to compel nonparty to attend deposition].)

To establish this ground, a movant must:

Identify the deponent and state whether the deponent is a party or party-affiliated witness (see Code Civ. Proc., § 2025.450, subd. (a));

Show the deponent was (1) properly served with a deposition notice, (2) required to appear for a deposition on the date and at the time and place identified in the deposition notice, and (3) that the date for the deposition was not rescheduled (see Code Civ. Proc., § 2025.280, subd. (a));

Show the deponent (1) did not appear at the deposition or appeared but refused to proceed and (2) did not serve a valid objection to defects in the deposition notice before the deposition (see Code Civ. Proc., § 2025.450, subd. (a); Robbins v. Regents of the Univ. of Cal. (2005) 127 Cal.App.4th 653, 659; see e.g., Parker v. Wolters Kluwer U.S. Inc. (2007) 149 Cal.App.4th 285, 292 [Motion to compel appearance granted when deponent was 40 minutes late to deposition, refused to be sworn or to testify, and then left early]);

Show the deponent did not produce documents, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena (see Code Civ. Proc., § 2025.450, subd. (a));

Set forth specific facts showing good cause for production, as applicable (Code Civ. Proc., § 2025.450, subd. (b)(1)); and

Provide a meet and confer declaration under Section 2016.040, or, if the deponent did not appear, a follow-up contact with the deponent (see Code Civ. Proc., § 2025.450, subd. (b)(2) [“motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance”]).

To show good cause, the movant should give a detailed statement of how the evidence sought is material to the issues in the case. (See Code Civ. Proc., § 1985, subd. (b).) The movant should also state that the documents, electronically stored information, or tangible things sought at the deposition are subject to discovery because they are within the scope of discovery. (See Code Civ. Proc., § 2025.480, subd. (i); see also See Code Civ. Proc., § 2017.010 [scope of discovery].)

Further, the motion must also be accompanied by several items, including:

A declaration providing (1) the above grounds for the requested relief, (2) that a follow-up contact was made (Sears, Roebuck, & Co. v. National Un. Fire Ins., supra, 131 Cal.App.4th at p. 1351), and (3) sanctions grounds, if any;

A copy of the deposition notice or subpoena with proof of service;

A deposition transcript, if applicable (Cf. Code Civ. Proc., § 2025.480, subd. (h); see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 135 [deposition transcript need not be provided when motion to compel involves failure to produce documents requested in business-records subpoena because no part of transcript will be relevant]);

A separate statement for the production of records unless (1) no response has been provided to the discovery request or (2) the Court has allowed the moving party to submit a concise outline of the discovery request and each response in dispute in lieu of a separate statement (Cal. Rules of Court, rule 3.1345, subds. (a)(4)-(5), (b));

Proof of service for the motion to compel (see Cal. Rules of Court, rule 3.1300, subd. (c)); and

A proposed order, if desired (Cal. Rules of Court, rule 3.1113, subd. (m)).

Analysis

In its motion, Mazda seeks an order compelling Plaintiff Flores’s attendance at a deposition and production of documents, as well as monetary sanctions against Flores. (Compel Flores Mot., pp. 3-6.) The motion is premised on the grounds that Mazda noticed an October 5, 2022 deposition on Plaintiff Flores, only for Flores to object to the deposition and thereafter refuse to agree to another deposition date, forcing Mazda to file this motion. (Compel Flores Mot., pp. 3, 6, Ekblad Decl., ¶¶ 2-6, Exs. A-D [offer to compromise, deposition notice for Plaintiff Flores, Flores’s objections, and subsequent communications wherein Mazda sought new deposition date to no avail].)

In opposition, Plaintiff Flores argues that Mazda’s failure to submit a separate statement is fatal to the motion to compel deposition and production of documents and that this motion is moot either because Plaintiff Flores is and has been willing to agree to deposition dates—e, g., April 26, 2023 and May 10, 2023, offered to Mazda to no avail, and that because trial is scheduled for November 14, 2023, ongoing discovery provides the parties plenty of time to schedule a deposition. (Joint Opp’n, p. 2.)

In reply, Mazda argues that a court order is necessary here because it has no assurance or guarantee that Plaintiff Flores will appear at a deposition and because Mazda has incurred fees and costs filing this motion. (Compel Flores Reply, p. 2.) Mazda also argues that this motion is not moot because any agreement by Plaintiff Flores to appear at a deposition does not divest the Court of its authority to rule on Mazda’s motion. (Compel Flores Reply, pp. 2-3.) Last, Mazda argues that no separate statement need be attached to its motion because separate statements are not required when the respondent has provided no response to the requested discovery. (Compel Flores Reply, p. 3.)

The Court finds that Mazda’s motion is meritorious.

The motion identifies Plaintiff Flores as the party deponent at issue. (Compel Flores Mot., pp. 1-3.)

The motion shows that Plaintiff Flores was served with a valid deposition notice on September 22, 2022 (Compel Flores Mot., Ekblad Decl., Ex. B), was required to attend the deposition by virtue of proper service (see Code Civ. Proc., § 2025.280, subd. (a) [must attend deposition where properly served]), and the deposition date was not rescheduled due to Plaintiff Flores’s failure to agree to a new deposition date (Compel Flores Mot., Ekblad Decl. ¶¶ 3-6).

The motion shows that Plaintiff Flores did not attend the October 5, 2022 deposition. (Compel Flores Mot., Ekblad Decl., ¶¶ 3-4.)

The motion also shows that Plaintiff Flores’s objections to the deposition notice were not meritorious because the deposition notices sought information within the scope of discovery through a deposition notice with no procedural defects. (Compel Flores Mot., pp. 4-6 [Mazda’s arguments for why the objections were not meritorious]; see good cause discussion below; see also Compel Flores Mot., Ekblad Decl., Ex. C [Plaintiff Flores’s objections based on unilateral noticing of deposition, alleged lack of location provided for Plaintiffs and counsel to attend the deposition, and alleged harassment, vagueness, ambiguity and other boilerplate grounds against the deposition notice]; contra. Compel Flores Mot., Ekblad Decl., Ex. B [deposition remote via Array Court Reporting]; see, e.g., Code Civ. Proc., §§ 2025.410, subds. (a), (c) [deposition notice objection can be based on irregularities or errors therein]; McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d at p. 391 [motion to quash deposition subpoenas because they were unreasonable and oppressive]; Monarch Healthcare v. Superior Court, supra, 78 Cal.App.4th at p. 1290 [objections to subpoena for business records based on trade-secret privilege].)

The motion shows Plaintiff Flores did not provide responses to the production requests in the deposition notice. (See Compel Flores Mot., Ekblad Decl., ¶ 3 [only objections served in response to deposition notice].)

The motion shows good cause for the production requests by attaching a copy of the production requests themselves, which show requests within the scope of discovery insofar as they relate to lemon law issues, such as documents showing Plaintiff Flores is entitled to revocation, rescission of the sales contract, attorney’s fees, damages, and injunctive relief or documents showing the promotional documents Plaintiff Flores received prior to purchasing the Subject Vehicle. (Compel Flores Mot., Ekblad Decl., Ex. B, Sub. Ex. A.)

The motion shows that Mazda attempted to follow up with Plaintiff Flores’s counsel regarding rescheduling the deposition date but that such efforts were fruitless. (Compel Flores Mot., Ekblad Decl., ¶¶ 4-6, Ex. D [communications between counsel wherein Mazda sought rescheduled deposition date to no avail].)

The Court notes that Plaintiffs did not provide dates for deposition, according to the exhibit attached to the Barry Declaration, until April 11, 2023 (the same day they filed their opposition), which was nearly six months after the motion to compel was filed. The dates proffered were after the hearing on this motion.

The motion attaches a declaration from Erik J. Ekblad, Esq. providing the grounds for compelling deposition, follow-up attempts with Plaintiff Flores’s counsel, and grounds for sanctions. (Compel Flores Mot., Ekblad Decl., ¶¶ 3-6.)

The motion attaches a copy of the deposition notice with proof of service therefor. (Compel Flores Mot., Ekblad Decl., Ex. B, Proof of Service.)

The motion attaches a copy of the proof of service for this motion. (Compel Flores Mot., Proof of Service.)

The motion need not provide a deposition transcript because no deposition took place. (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 135.)

Neither did the motion need to attach a separate statement because no production requests were produced, and Plaintiff Flores did not attend the deposition. (Cal. Rules of Court, rule 3.1345, subd. (b).)

Based on these grounds, the Court GRANTS Mazda’s motion to compel deposition of and production of documents from Plaintiff Ivy Flores.

Sanctions

The court must impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a deponent (party or nonparty) to produce any document, electronically stored information, or tangible things under the deponent’s control required by the deposition notice or subpoena. (Code Civ. Proc., § 2025.480, subds. (a), (j).) The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

The Court must also impose sanctions where a party or nonparty fails to attend or proceed with a deposition unless there is substantial justification therefor or the imposition of sanctions is unjust. (Code Civ. Proc., § 2025.430.) No explanation has been offered by Plaintiff’s counsel as to why they failed to provide any deposition dates until 7 months after the first deposition date, some 6 months after the motion to compel was filed.

Last, the Court must impose a $250 monetary sanction against a deponent (party or nonparty) of attorney if the deponent did not respond in good faith to a request for the production for documents at a deposition or to an inspection demand. (Code Civ. Proc., § 2023.050, subd. (a)(1).)

Mazda seeks $2,085 in monetary sanctions against Plaintiff Flores, comprised of a filing fee of $60 and nine hours of reasonable legal work and travel already expended or to be expended by Mazda’s counsel in relation to this motion, billed at a reasonable rate of $225 per hour. (Compel Flores Mot., p. 6, Ekblad Decl., ¶ 7.)

Plaintiff Flores’s opposition fails to rebut arguments related to sanctions. (See Joint Opp’n generally.)

Mazda’s reply does not explicitly reargue sanctions. (See Compel Flores Reply generally.)

The Court GRANTS sanctions in the amount of $2,085 as requested by Mazda as reasonable compensation for counsel’s work related to this motion. (Code Civ. Proc., § 2025.480, subds. (a), (j) [unsuccessful opposition]; Code Civ. Proc., § 2025.430 [failure to attend].)

The Court also AWARDS $250 to Mazda in relation to its ignored production requests. (Code Civ. Proc., § 2023.050, subd. (a)(1) [lack of good faith in response to production requests from deponent].)

Mazda’s total monetary sanction recovery from Plaintiff Flores thus adds up to $2,335.

Motion to Compel Portobanco Deposition: GRANTED.

Legal Standard

See above.

Analysis

The analysis of this motion largely tracks the analysis of the Flores motion, as the facts and law are identical other than the name of the plaintiff.

The Court finds that Mazda’s motion is meritorious.

The motion shows that Plaintiff Portobanco was served with a valid deposition notice on September 22, 2022 (Compel Portobanco Mot., Ekblad Decl., Ex. B), was required to attend the deposition by virtue of proper service (see Code Civ. Proc., § 2025.280, subd. (a) [must attend deposition where properly served]), and the deposition date was not rescheduled due to Plaintiff Portobanco’s failure to agree to a new deposition date (Compel Portobanco Mot., Ekblad Decl. ¶¶ 3-6).

The motion shows that Plaintiff Portobanco did not attend the October 5, 2022 deposition. (Compel Portobanco Mot., Ekblad Decl., ¶¶ 3-4.) Nor was any date provided for her until April 11, 2023, the date Plaintiffs filed their opposition to this motion to compel.

The motion also shows that Plaintiff Portobanco’s objections to the deposition notice were not meritorious because the deposition notices sought information within the scope of discovery through a deposition notice with no procedural defects. (Compel Portobanco Mot., pp. 4-6 [Mazda’s arguments for why the objections were not meritorious]; see good cause discussion below; see also Compel Portobanco Mot., Ekblad Decl., Ex. C [Plaintiff Portobanco’s objections based on unilateral noticing of deposition, alleged lack of location provided for Plaintiffs and counsel to attend the deposition, and alleged harassment, vagueness, ambiguity and other boilerplate grounds against the deposition notice]; contra. Compel Portobanco Mot., Ekblad Decl., Ex. B [deposition remote via Array Court Reporting]; see, e.g., Code Civ. Proc., §§ 2025.410, subds. (a), (c) [deposition notice objection can be based on irregularities or errors therein]; McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d at p. 391 [motion to quash deposition subpoenas because they were unreasonable and oppressive]; Monarch Healthcare v. Superior Court, supra, 78 Cal.App.4th at p. 1290 [objections to subpoena for business records based on trade-secret privilege].)

The motion shows Plaintiff Portobanco did not provide responses to the production requests in the deposition notice. (See Compel Portobanco Mot., Ekblad Decl., ¶ 3 [only objections served in response to deposition notice].)

The motion shows good cause for the production requests by attaching a copy of the production requests themselves, which show requests within the scope of discovery insofar as they relate to lemon law issues, such as documents showing Plaintiff Portobanco is entitled to revocation, rescission of the sales contract, attorney’s fees, damages, and injunctive relief or documents showing the promotional documents Plaintiff Portobanco received prior to purchasing the Subject Vehicle. (Compel Portobanco Mot., Ekblad Decl., Ex. B, Sub. Ex. A.)

The motion shows that Mazda attempted to follow up with Plaintiff Portobanco’s counsel regarding rescheduling the deposition date but that such efforts were fruitless. (Compel Portobanco Mot., Ekblad Decl., ¶¶ 4-6, Ex. D [communications between counsel wherein Mazda sought rescheduled deposition date to no avail].)

The motion attaches a declaration from Erik J. Ekblad, Esq. providing the grounds for compelling deposition, follow-up attempts with Plaintiff Portobanco’s counsel, and grounds for sanctions. (Compel Portobanco Mot., Ekblad Decl., ¶¶ 3-6.)

The motion attaches a copy of the deposition notice with proof of service therefor. (Compel Portobanco Mot., Ekblad Decl., Ex. B, Proof of Service.)

The motion attaches a copy of the proof of service for this motion. (Compel Portobanco Mot., Proof of Service.)

The motion need not provide a deposition transcript because no deposition took place. (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 135.)

Neither did the motion need to attach a separate statement because no production requests were produced, and Plaintiff Portobanco did not attend the deposition. (Cal. Rules of Court, rule 3.1345, subd. (b).)

Based on these grounds, the Court GRANTS Mazda’s motion to compel deposition of and production of documents from Plaintiff Amanda Portobanco.

Sanctions

Mazda seeks $1,860 in monetary sanctions against Plaintiff Portobanco, comprised of a filing fee of $60 and eight hours of reasonable legal work and travel already expended or to be expended by Mazda’s counsel in relation to this motion, billed at a reasonable rate of $225 per hour. (Compel Portobanco Mot., p. 6, Ekblad Decl., ¶ 7.)

Plaintiff Portobanco’s opposition fails to rebut arguments related to sanctions. (See Joint Opp’n generally.)

Mazda’s reply does not explicitly reargue sanctions. (See Compel Portobanco Reply generally.)

The Court GRANTS sanctions in the amount of $1,860 as requested by Mazda as reasonable compensation for counsel’s work related to this motion. (Code Civ. Proc., § 2025.480, subds. (a), (j) [unsuccessful opposition]; Code Civ. Proc., § 2025.430 [failure to attend].)

The Court also AWARDS $250 to Mazda in relation to its ignored production requests. (Code Civ. Proc., § 2023.050, subd. (a)(1) [lack of good faith in response to production requests from deponent].)

Mazda’s total monetary sanction recovery from Plaintiff Portobanco thus adds up to $2,110.

Conclusion

Defendant Mazda Motor of America, Inc.’s Motion to Compel Deposition of Plaintiff, Ivy Flores, with Production of Documents is GRANTED.

The corresponding Request for Sanctions is also GRANTED in the amount of $2,335.

Defendant Mazda Motor of America, Inc.’s Motion to Compel Deposition of Plaintiff, Amanda Portobanco, with Production of Documents is GRANTED.

The corresponding Request for Sanctions is also GRANTED in the amount of $2,110.

Plaintiffs Ivy Flores and Amanda Portobanco are ORDERED TO SUBMIT TO DEPOSITION AND PRODUCE DOCUMENTS identified in the September 22, 2022 subpoenas WITHIN 30 DAYS on a date to be agreed upon by the parties within five calendar days of notice of this order. The Court will unilaterally schedule a joint deposition and production date if the parties fail to come to an agreement.

Plaintiffs Ivy Flores and Amanda Portobanco are ORDERED TO REMIT SANCTIONS to Defendant Mazda Motor of America, Inc. WITHIN 60 DAYS.