Judge: Armen Tamzarian, Case: 21STCV34739, Date: 2023-11-28 Tentative Ruling
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Case Number: 21STCV34739 Hearing Date: November 28, 2023 Dept: 52
Defendant American Honda Motor Co.,
Inc.’s Motions to Compel (1) Plaintiff’s Deposition and (2) Vehicle Inspection
Meet
and Confer
Plaintiff Abbas Torabian argues defendant
American Honda Motor Co., Inc. did not meet and confer in good faith before
filing these motions. He argues, “Defendant’s
unwillingness to engage Plaintiff’s counsel in a meaningful discussion on how
to facilitate the deposition of both the Plaintiff and Defendant’s Person Most
Knowledgeable witness(es) renders Honda’s attempt to ‘meet and confer’ with
Plaintiff meaningless.” (Opps., p.
3.) That is not a failure to meet and
confer. “A meet and confer declaration
in support of a motion shall state facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) Whether defendant cooperated with plaintiff’s
discovery requests is not an issue presented by these motions. Each side’s discovery obligations are
independent of one another. If defendant
refused to comply with discovery requests, plaintiff’s remedy is to file a
motion, not refuse to provide his own responses.
Plaintiff’s
Deposition
Defendant American Honda Motor Co., Inc. moves
to compel the deposition and accompanying document production of plaintiff Abbas
Torabian. One may move to compel the deposition of a party who fails to appear at
deposition “without having served a valid objection under Section
2025.410.” (CCP § 2025.450(a).)
The motion is
procedurally defective as to the document requests. “Any motion involving the content of a
discovery request or the responses to such a request must be accompanied by a
separate statement.” (Cal. Rules of
Court, rule 3.1345(a).) That includes a
motion “[t]o compel or to quash the production of documents or tangible things
at a deposition.” (Rule
3.1345(a)(5).) The separate statement
must include the text of each demand and response or objection. (Rule 3.1345(c).)
The notice of
plaintiff’s deposition includes 40 requests for production. (Zipser Decl., Ex. E.) Plaintiff served timely objections to all 40
requests. (Theophil Decl., ¶ 4, Ex.
2.) Defendant did not file any separate
statement. Defendant’s motion does not address
the content of the document requests or objections to them whatsoever.
The motion is proper as to plaintiff’s deposition
itself. Plaintiff did not serve a valid
objection as to his testimony at deposition.
He objected only on the basis that “[t]his deposition was unilaterally
noticed by Defendant for a date and time on which Plaintiff and/or Plaintiff’s
counsel is unavailable.” (Theophil
Decl., Ex. 2, p. 1.)
Not being
available may be a reason to not attend as a practical matter, but it is not a
valid objection under Code of Civil Procedure section 2025.410. That section refers to objections to “a
deposition notice that does not comply with Article 2 (commencing with section
2025.210),” not for other reasons a party cannot attend a deposition. Though it may be a professional courtesy to
mutually schedule a deposition, the Civil Discovery Act does not require
that. “An oral deposition shall be
scheduled for a date at least 10 days after service of the deposition
notice.” (CCP § 2025.270(a).) “The service of a deposition notice under
Section 2025.240 is effective to require any deponent who is a party to the
action… to attend and to testify, as well as to produce any document,
electronically stored information, or tangible thing for inspection and
copying.” (CCP § 2025.280(a).) The party serving the notice of deposition
can choose the date so long as it complies with these requirements. Defendant did that.
Moreover, even
if this objection could ever be proper, it is not true in this case. Plaintiff agreed to the date of June 14. (Zipser Decl., ¶¶ 7-8, Ex. F.) Plaintiff does not dispute that.
Vehicle
Inspection
Defendant American Honda Motor Co.,
Inc. moves to compel the production of plaintiff’s vehicle for inspection. Apart from his argument about meeting and
conferring, which the court discussed above, plaintiff opposes this motion by
arguing he never refused to produce the vehicle and offered to have the
inspection on December 4, 2023. But
defendant sent plaintiff emails on September 20 (Zipser Decl., ¶ 9, Ex. F),
October 17 (id., ¶ 10, Ex. G), and October 25 (id., ¶ 11, Ex. H) asking
him to provide a date for the vehicle inspection. Plaintiff did not provide any date for the
inspection (id., ¶ 12) until November 13 (Theophil Decl., ¶ 4, Ex. 2),
two weeks after defendant filed this motion.
Defendant is entitled to inspect plaintiff’s vehicle in this
Song-Beverly action. Offering to allow the
inspection after defendant filed a motion to compel does not suffice.
Sanctions
At the end of each motion, defendant
seeks $1,000 in monetary sanctions.
These requests for sanctions are procedurally defective. “A request for a sanction shall, in the
notice of motion, identify every person, party, and attorney against whom the
sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a
memorandum of points and authorities, and accompanied by a declaration setting
forth facts supporting the amount of any monetary sanction sought.” (CCP § 2023.040.) The notices of these motions do not mention
sanctions. Defendant did not give
adequate notice that it sought monetary sanctions.
Disposition
Defendant American Honda Motor Co.’s
motion to compel plaintiff’s deposition is granted as to plaintiff’s
deposition testimony and denied as to all document requests. Plaintiff Abbas Torabian is ordered to
appear and testify at deposition no later than December 4.
Defendant American Honda Motor Co.’s
motion to compel production of plaintiff’s vehicle for inspection is granted. Plaintiff Abbas Torabian is ordered to
produce the subject vehicle for inspection no later than December 8.