Judge: Anne Richardson, Case: 21STCV13188, Date: 2023-10-26 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV13188    Hearing Date: October 26, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On April 7, 2021, Plaintiff Maricruz Santiago brought this action against Defendants Subaru of America, Inc., Universal Auto Group, Inc. (dba Subaru of Glendale), and Does 1 through 10 pursuant to (1)-(5) five Song-Beverly Consumer Warranty Act claims and (6) one Fraud claim.

The claims arise from allegations that in December 2014, Plaintiff purchased a 2015 Subaru Forester from Subaru of Glendale, which was purchased pursuant to express and implied warranties from Subaru of America, only for the vehicle to develop defects related to, among many other things, the continuously variable transmission (CVT), the transmission, a performance recall defect, and the illumination of the ABS light, VDC light, and/or hill assist light, all of which Subaru of America and its representatives were unable to conform to warranty after a reasonable number of opportunities.

On May 1, 2023 and June 22, 2023 Plaintiff designated Randall Bounds, William F. Rucker, and Dan Calef as her expert witnesses in this matter.

On May 2, 2023, Defendants served a notice of deposition for Randall Bounds, William F. Rucker, and Dan Calef to occur on May 19, 23, and 25, 2023. At the same time, a meet and confer letter was served regarding Plaintiff’s purportedly duplicate expert testimony and setting a date for Plaintiff’s experts’ depositions.

On May 15, 2023, Plaintiff served objections stating that the expert witnesses would not be produced and that Plaintiff’s counsel would meet and confer with Defendants’ counsel regarding deposition dates.

On July 1, 2023 Defendants followed up on the May 2, 2023 meet and confer letter.

On July 24, 25, and 28 2023, Defendants followed up on their meet and confer correspondences via email. Also on July 24, 2023, Defendants served their amended notices of depositions for Randall Bounds, William F. Rucker, and Dan Calef to occur on August 7, 2023. A second meet and confer letter regarding Plaintiff’s designations of duplicate experts and setting a date for Plaintiff’s experts’ depositions was served in conjunction with the notices.

On August 4, 2023, Plaintiff served objections to the amended notices of depositions stating that the expert witnesses would not be produced and Plaintiff’s counsel would meet and confer with Defendants’ counsel regarding deposition dates.

On August 7, 2023, September 26 and 29, 2023, Defendants followed up on their meet and confer correspondences.

On October 6, 2023, Defendants moved to compel a deposition of one of Plaintiff’s experts or, in the alternative, the exclusion of Plaintiff’s experts’ testimony at trial. Defendants also sought monetary sanctions. The motion was set for hearing on December 13, 2023.

On October 19, 2023, Defendants filed an ex parte application to advance the hearing on the motion to compel.

On October 20, 2023, the Court heard and granted the ex parte, advancing the hearing to October 26, 2023 and extending the expert discovery cutoff as to the expert witnesses to November 3, 2023. The Court permitted the electronic filing of an opposition by October 24, 2023 and the filing of a reply by October 25, 2023.

On October 24, 2023, Plaintiff opposed the motion to compel.

On October 25, 2023, Defendants replied to the opposition.

Defendants’ motion to compel is now before the Court.

Motion to Compel Deposition

Legal Standard

If, [1] after service of a deposition notice, [2] a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, [3] without having served a valid objection under Section 2025.410, [4] fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, [5] the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a) [Arabic numerals added for clarity].)

Although Code of Civil Procedure section 2025.450 does not apply to nonparties and section 2025.480 does not address attendance, courts regularly consider and grant motions to compel nonparties to attend depositions. (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. (2005) 131 Cal.App.4th 1342, 1351 [court held that subpoenaing party can move to compel when nonparty deponent does not appear or produce documents at deposition]; Brun v. Bailey (1994) 27 Cal.App.4th 641, 645-646 [court considered motion to compel nonparty to attend deposition].)

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

The motion shall also 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. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the proposed deponent made some response to the deposition notice, then a separate statement must accompany any motion to compel deposition attendance or production. (See Cal. Rules of Court, rule 3.1345, subd. (a)(1)-(7), (b).)

Order Compelling Deposition(s): MOOT.

In their motion, Defendants seek an order compelling the deposition of one of Plaintiff’s designated experts—Randall Bounds, William F. Rucker, or Dan Calef—on a date specified by the Court. In support, Defendants argue that they “have made numerous attempts to coordinate Plaintiff’s Experts’ depositions for over five months,” that “Plaintiff has failed to respond to any of Defendants’ requests to provide mutually convenient dates to conduct Plaintiff’s Experts’ depositions,” and that “Plaintiff’s attorneys have not, and cannot, articulate any meritorious objection as to why one of the depositions of her own designated Experts should not go forward.” (Mot., Notice, p. 2; Motion, p. 3 [quoted language]; Mot., Haroutunian Decl., ¶¶ 2-10, Exs. A-H; but see Opp’n, p. 4 [pointing out alleged deficiencies in Haroutunian declaration].)

In opposition, Plaintiff argues that this motion has been mooted by the parties’ October 20, 2023 agreement to have Plaintiff’s expert Randall Bounds deposed on October 27, 2023. Plaintiff also argues that this motion is uncertain and overbroad because it seeks to achieve inconsistent and unrelated objectives, i.e., to elicit expert discovery while also attempting to exclude the same or similar information at trial. Plaintiff last argues that Defendants did not confer in good faith and that the Haroutunian declaration should be disregarded because it is missing some of the paragraphs and exhibits referenced in Defendants’ briefing. (Opp’n, pp. 2-4; Opp’n, Campbell Decl., ¶¶ 5-6, Ex. A.) (The Court notes that the challenged paragraphs and exhibits of the Haroutunian declaration were properly filed with the Court.)

In reply, Defendants argue that this motion has not been mooted because issues remain as to monetary sanctions and a finding of discovery abuse against Plaintiff. Defendants also argue that the relief sought in their motion is not inconsistent, that Defendants met and conferred in good faith, and that defense counsel’s declaration is complete in its paragraphs and exhibits. (Reply, pp. 2-5.)

After review, the Court determines that the portion of this motion seeking an order compelling the deposition of at least one Plaintiff’s experts has been MOOTED by the parties’ October 20, 2023 agreement to have Randall Bounds’s deposition take place one day after this hearing, thus satisfying Defendants’ request for a deposition of one of Plaintiff’s designated experts on a specified date.

Sanctions: GRANTED.

If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).)

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).)

In their motion, Defendants argue that they are entitled to $2,100 in monetary sanctions from Plaintiff and Plaintiff’s attorneys because “Plaintiff has engaged in repeated discovery misconduct by repeatedly failing to respond to Defendants numerous meet and confer efforts and by failing to provide dates for one of Plaintiff’s Expert’s Depositions.” (Mot., p. 4.)

In opposition, Plaintiff asks that sanctions be denied with no separate explanation for why sanctions should be denied. (Opp’n, p. 5.)

In reply, Defendants argue that this motion is not moot as to a determination of monetary sanctions and a finding of discovery abuse by Plaintiff and that Plaintiff has not provided an adequate explanation for Plaintiff’s conduct in refusing to permit deposition of her experts. (Reply, p. 2.)

After review, the Court finds that sanctions are appropriate here.

Plaintiff has failed to make at least one of her experts available for deposition since May 2023. (Mot., Haroutunian Decl., ¶¶ 2-10.) While Plaintiff was within her rights to object to dates that were selected by the other side (who nevertheless simultaneously expressed willingness to meet and confer to select new dates), Plaintiff never did follow up with any proposed new dates. Defendants had to follow up with Plaintiff by means of letter, email, or notice of deposition no less than seven times between the date Plaintiff objected to the initial notices and the date they filed their Motion to Compel. This is a misuse of the discovery process in accordance with the Code. (Code Civ. Proc., § 2023.010, subds. (d) [failing to respond or submit to an authorized form of discovery] and (f) [making an evasive response to discovery].) Plaintiff’s opposition provides no valid explanation for failing to proffer some alternative dates for the depositions of her expert or experts to go forward prior to the filing of this motion. (See Opp’n, pp. 2-4.)

Accordingly, the Court GRANTS sanctions in the amount of $2,100 against Plaintiff Santiago and her counsel of record, Strategic Legal Practices. This sanction amount is reasonably comprised of six hours preparing this motion at a rate of $240 per hour, 1.5 hours expended replying to the opposition at a rate of $240 per hour, one hour appearing at the hearing at a rate of $240 per hour, and a $60 filing fee. (Mot., Haroutunian Decl., ¶ 11.) 

Conclusion

Defendants Subaru of America, Inc. and Universal Auto Group, Inc.’s Motion to Compel the Deposition of Plaintiff’s Experts, or in the Alternative, for an Order to Exclude Plaintiff’s Expert’s Testimony at Trial is MOOT.

Defendants Subaru of America, Inc. and Universal Auto Group, Inc.’s Request for Monetary Sanctions is GRANTED in the amount of $2,100 against Plaintiff Maricruz Santiago and her counsel of record, Strategic Legal Practices.

Plaintiff Maricruz Santiago and her counsel of record, Strategic Legal Practices, are ORDERED, jointly and severally, to pay $2,100 in monetary sanctions to Defendants Subaru of America, Inc. and Universal Auto Group, Inc. within 30 days of this ruling.

Moving party to give notice.