Judge: Anne Richardson, Case: 22STCV11303, Date: 2023-08-30 Tentative Ruling

Case Number: 22STCV11303    Hearing Date: November 7, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:               Defendant Toyota Motor Sales, U.S.A., Inc.

OPPOSITION:                     Plaintiffs Fidel Hernandez Medina and Patricia Hernandez.

REPLY:                                 Defendant Toyota Motor Sales, U.S.A., Inc.

Background

Plaintiffs Fidel Hernandez Medina and Patricia Hernandez (Plaintiffs) sue Defendant Toyota Motor Sales, U.S.A., Inc. (Toyota USA) pursuant to an October 14, 2022 Third Amended Complaint (TAC) alleging claims of (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2(b).

The claims arise from allegations that Toyota USA has breached express and implied warranties in favor of Plaintiffs by failing to repair, replace, or repurchase a used Toyota vehicle purchased by the Hernandez Plaintiffs subject to express warranties through which Toyota USA “undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in such utility or performance.”

On August 25, 2023, Toyota USA noticed the depositions of Plaintiffs and production of documents from Plaintiffs for September 7, 2023.

That same day, Toyota USA’s counsel emailed Plaintiffs’ counsel to confirm availability on September 7, 2023 and to request alternative dates if there was a conflict.

Plaintiffs and counsel failed to respond in any way to the deposition notices.

On September 7, 2023, Toyota USA’s counsel emailed Plaintiff’s counsel asking whether Plaintiffs would appear at the depositions.

That same day, Plaintiffs’ counsel replied that the depositions had not been calendared by Plaintiffs’ counsel and that alternative dates would be provided as soon as possible.

On October 10, 2023, Toyota USA filed a motion to compel the deposition of Plaintiffs and requesting monetary sanctions against Plaintiffs and/or counsel.

Between that date and October 20, 2023, the parties scheduled the deposition of Plaintiffs for October 20, 2023, with the deposition of Plaintiff Patricia Hernandez partially completed on that date, and the deposition of Plaintiff Fidel Hernandez Medina being postponed based on the amount of time it took to depose Plaintiff Patricia Hernandez.

On October 25, 2023, Plaintiffs opposed Toyota USA’s motion on various grounds, including the argument that the motion had been mooted by the deposition of Plaintiff Patricia Hernandez—which is to be resumed on a later date—and the agreement to produce Plaintiff Fidel Hernandez Medina for deposition at some later date.

Toyota USA has not replied to Plaintiffs’ opposition.

The motion to compel Plaintiffs’ depositions is now before the Court.

Motion to Compel Depositions

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].)

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. (b).)

Order Compelling Deposition(s): MOOT.

Toyota USA has presented evidence showing that it noticed the depositions of Plaintiffs, who did not serve objections to the deposition notices and who failed to appear for examination and production, thus providing standing grounds for this motion. (Mot., Jo Decl., ¶¶ 1-6, A-C; see Code Civ. Proc., § 2025.450, subd. (a).)

Toyota also shows sufficient good cause for production: The need to “[n]arrow the scope of the defects actually at issue”; and to take a deposition “before the vehicle inspection so that the experts know what to look for and how to test the car.” (Mot., p. 3; see Code Civ. Proc., § 2025.450, subd. (b)(1).)

Toyota also need not have filed a separate statement because Plaintiffs did not make a response to the deposition notice prior to the deposition date. (Cf. Opp’n, p. 3; see Cal. Rules of Court, rule 3.1345, subd. (b).)

However, the Court does agree with Plaintiffs that there are questions as to whether Toyota USA’s counsel properly met and conferred prior to filing this motion. This is because the only communication between the parties between Toyota USA serving its deposition notices on August 25, 2023 and Toyota USA filing this motion to compel on October 10, 2023 appears to be the September 7, 2023 emails between counsel, with Toyota USA asking Plaintiffs’ counsel if Plaintiffs would appear at the depositions that day, and Plaintiff’s counsel advising a failure to calendar the depositions and agreeing to provide alternative deposition dates as soon as possible. (See Mot., Jo Decl., ¶¶ 5-6, Ex. C.)

However, the Court’s dispositive finding is that Toyota USA’s motion has been mooted insofar as it seeks to compel the depositions of Plaintiffs.

The deposition of Plaintiff Patricia Hernandez was already partially completed, and Plaintiffs’ counsel has agreed to produce her for a second session. The deposition of Plaintiff Fidel Hernandez Medina was supposed to take place on October 20, 2023 but had to be continued, and there is a standing agreement between the parties to produce Plaintiff Fidel Hernandez Medina for deposition. (Opp’n, Martinez Decl., ¶¶ 6-13, Exs. B-C.)

The Court thus determines that this motion is MOOT as to compelling the deposition of Plaintiffs.

Sanctions: DENIED.

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).)

The Court adopts its discussion above regarding meet-and-confer efforts to find that the imposition of sanctions on Plaintiffs would be unjust. Based on the record before the Court, there were insufficient communications between the parties before Toyota USA filed its motion. Moreover, Plaintiffs have produced Patricia Hernandez for her deposition, in part, and have agreed to the deposition of Fidel Hernandez Medina at a later time. Moreover, Toyota USA has not filed any reply brief.

The request for sanctions is thus DENIED. 

Conclusion

Defendant Toyota Motor Sales, U.S.A., Inc.’s Motion to Compel Plaintiffs’ Depositions is MOOT.

Defendant Toyota Motor Sales, U.S.A., Inc.’s Request for Sanctions is DENIED.