Judge: Ashfaq G. Chowdhury, Case: 23GDCV00327, Date: 2024-09-19 Tentative Ruling
Case Number: 23GDCV00327 Hearing Date: September 19, 2024 Dept: E
Hearing Date: 09/19/2024 – 8:30am
Case No: 23GDCV00327
Trial Date: 01/27/2025
Case Name: ASHLEIGH SOTO, an individual; v. KIA AMERICA, INC., a California
corporation, and DOES 1-10 inclusive
TENTATIVE
RULING MOTION TO COMPEL DEPO
BACKGROUND
Plaintiff,
Ashleigh Soto, filed the instant action against Kia America Inc. on 02/15/2023
alleging three causes of action: (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.
RELIEF REQUESTED
Defendant,
Kia America, Inc., moves the Court for an order compelling Plaintiff Ashleigh
Soto to attend and testify at a deposition and produce documents, pursuant to
California Code of Civil Procedure sections 128 and 2025.450.
This motion is made
pursuant to California Code of Civil Procedure sections 2025.010, and 2025.450.
This motion is made on
the grounds that Plaintiff has failed to appear for his properly noticed
deposition. In addition, Plaintiff has failed to meet and confer on this issue
in good faith.
This motion is based on
this notice, Memorandum of Points and Authorities, the supporting declaration
of Sara Rabiee, and the pleadings and records on file in this action, as well
as such oral or documentary evidence as may be represented at the hearing on
this motion.
PROCEDURAL
Moving Party: Defendant, Kia America, Inc.
Responding Party: Plaintiff, Ashleigh Soto
Moving Papers: Notice/Motion;
Proposed Order
Opposing Papers: Opposition; Gopstein Declaration
Reply Papers: No Reply Submitted
Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b), CRC 3.1300(a)): Ok
Correct Address: (CCP § 1013, § 1013a, § 1013b): Uncertain/Yes – On eCourt,
Kevin Jacobson at Quill & Arrow LLP is listed as Plaintiff’s “former”
counsel. It is unclear why eCourt lists Jacobson/Quill & Arrow LLP as
Plaintiff’s “former” counsel when nothing in the Court’s file indicates that Jacobson/Quill
& Arrow LLP withdrew as counsel or is no longer counsel. Although a Notice
of Change of Address was filed for Plaintiff’s attorney on 4/19/2024, this
notice still indicates that Jacobson/Quill & Arrow LLP are Plaintiff’s
counsel. Further, this motion’s proof of service indicates service via
electronic mail to kjacobson@quillarrowlaw.com and e-service@quillarrowlaw.com.
Not only was Defendant’s motion served to the email address indicated in the
notice of change of address that was filed on 4/19/2024, but this motion was
also served on the email address listed on eCourt of
kjacobson@quillarrowlaw.com for Plaintiff’s former (according to eCourt)
counsel. Ultimately, an opposition was submitted by Plaintiff, so Plaintiff
appears to have received this motion.
Moving Arguments by Defendant
On
March 9, 2023, Defendant served a Notice of Taking Deposition of Plaintiff and
Request for Production of Documents at Time of Deposition. This deposition was
set for May 15, 2023. On May 9, 2023, Defendant emailed Plaintiff’s counsel
asking to confirm Plaintiff’s appearance at the deposition. Plaintiff’s counsel
did not respond to the email, and the May 15, 2023 deposition did not go
forward.
On June 9, 2023, Defendant’s counsel emailed
Plaintiff’s counsel requesting a date to schedule the deposition. On February
21, 2024, Defendant’s counsel emailed Plaintiff’s counsel requesting a date be
provided by 2/26/2024, or else Defendant would have to seek court intervention.
Both of these emails went unanswered by Plaintiff’s counsel.
Defendant argues that since Plaintiff failed to appear
for the deposition, and since Plaintiff disregarded efforts to schedule a
deposition, Defendant’s motion to compel Plaintiff’s deposition should be
granted.
Opposition Arguments by Plaintiff
Plaintiff
argues that this motion should be denied on multiple grounds.
First, Plaintiff argues this motion should be denied
as moot because Plaintiff has already in good faith provided a reasonable
alternative date for the deposition to occur on November 18, 2024.
Second, Plaintiff argues the motion is procedurally
defective because Defendant failed to file an accompanying separate statement
as required under CRC, Rule 3.1345(a).
Plaintiff also indicates that her counsel requested
that Defendant’s counsel confirm the proposed deposition date of November 18,
2024, but as of the date of filing the opposition, Defendant’s counsel has not
confirmed the proposed deposition date.
LEGAL STANDARD – MOTION TO COMPEL
DEPOSITION
Under CCP § 2025.450:
(b) A
motion under subdivision (a) shall comply with both of the following:
(1) 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.
(2) The
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.
(CCP § 2025.450(a)-(b).)
TENTATIVE RULING
The Court will hear argument; however, it
is inclined to DENY Defendant’s motion.
Although Plaintiff’s Opposition argues
that this motion is moot because Plaintiff has now provided Defendant with a proposed
date for the deposition, Plaintiff provides no legal authority to support the
proposition that sending Defendant a proposed deposition date moots the current
motion.
Further, the Court is not entirely
convinced that Defendant’s motion should be denied because Defendant failed to file
a separate statement under CRC, rule 3.1345(a). Although under Rule 3.1345(a) a
motion to compel or to quash the production of documents or tangible things at
a deposition must be accompanied by a separate statement, Plaintiff fails to
acknowledge Rule 3.1345(b)(1), which states that a separate statement is not
required when no response has been provided to the request for discovery. (See
CRC, rules 3.1345(a) and 3.1345(b).)
The Court is inclined to deny Defendant’s
motion because Defendant did not appear to meet the burden that is required of
the moving party in this type of motion.
The instant deposition notice was not
simply a notice for the taking of a deposition of Plaintiff; the deposition
notice also included 26 demands for production of documents.
“A motion under subdivision (a) shall
comply with both of the following: (1) 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…” (CCP § 2025.450(b)(1).)
Here, Defendant’s motion makes no attempt
to set forth any facts showing good cause justifying the 26 demands for
production. All Defendant’s motion discusses is how Plaintiff did not show up
for the deposition and how Plaintiff would not meet and confer or respond to
emails trying to reschedule the deposition.
Defendant’s motion does not attempt to set
forth facts showing good cause for the demands for production in the deposition
notice.
The Court is inclined to deny Defendant’s
motion; however, it will hear argument.
Sanctions
“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.” (CCP §
2025.450(g)(1).)
Here, neither party requested sanctions.