Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01078, Date: 2023-11-17 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01078, Date: 2023-11-17 Tentative Ruling

Case Number: 23GDCV01078 Hearing Date: November 17, 2023 Dept: E

Hearing Date: 11/17/2023 – 8:30am
Case No: 23GDCV01078
Trial Date: UNSET
Case Name: JEMAEDEN RAMOS, an individual, v. HYUNDAI MOTOR AMERICA, a California Corporation and HYUNDAI OF GLENDALE, LLC, a California Limited Liability Company d/b/a HYUNDAI OF GLENDALE, and DOES 1-10 inclusive

TENTATIVE RULING MOTION TO COMPEL DEPO

RELIEF REQUESTED

Defendant, Hyundai Motor America (HMA) moves for an order to compel the deposition of Plaintiff Jemaeden Ramos upon the Court’s ruling on this motion.

This motion is based on Code of Civil Procedure sections 2025.280(a) and 2025.450, and Government Code section 68607 on the grounds that Plaintiff is attempting to frustrate HMA’s ability to conduct necessary discovery by refusing to present for depositions.

Good cause exists for granting this motion. Plaintiff filed the instant matter in May 2023, yet HMA’s efforts to take Plaintiff’s deposition have been frustrated since. HMA provided Plaintiff a deposition notice and additionally made two attempts to meet and confer, but to date has not been able to take Plaintiff’s deposition.

The Court’s tentative is to DENY the motion.

PROCEDURAL

Moving Party: Defendant, HMA

Responding Party: Plaintiff, Jemaeden Ramos

Moving Papers: Notice/Motion; Notice of Errata

Opposing Papers: Opposition; Decl. Mahnke;

Reply Papers: Reply

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): Ok

BACKGROUND

The instant Complaint was filed on 05/24/2023. Plaintiff alleges four causes of action – (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, (3) Violation of the Song-Beverly Act Section 1793.2., and (4) Negligent Repair.

LEGAL STANDARD – MOTION TO COMPEL DEPOSITION

Under CCP § 2025.450:

(a) If, after service of a deposition notice, 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, without having served a valid objection under Section 2025.410, 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, 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.

(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

Defendant’s motion to compel the deposition of Plaintiff, Jemaeden Ramos, is DENIED for failure of Defendant to follow the proper procedural requirements to compel a deposition.

On July 7, 2023, HMA served its Notice of Deposition of Plaintiff Jemaeden Ramos with Request for Production of Documents (Notice) to take place on August 14, 2023.

On August 3, 2023, Plaintiff objected to HMA’s notice.

On August 23, 2023, Defendant’s counsel emailed Plaintiff’s counsel in order to request alternative dates to be provided by the close of business on Friday, August 25, 2023, and as of the date of when Defendant’s counsel filed this motion, HMA never received a response to its request for alternative dates.

Here, Defendant’s deposition notice contained a Request for Production of Documents. Plaintiff objected to the notice. As stated in CCP §2025.450(b)(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.” Defendant’s motion does not even attempt to comply with this requirement. The deposition notice requested 36 documents, and this motion does not even attempt to explain good cause as to each request in the deposition notice.

Further, as noted by Plaintiff, Defendant did not file a separate statement under CRC 3.1345. Defendant argues it didn’t have to provide a separate statement, but to this Court, it appears that Defendant may have had to provide a separate statement under CRC 3.1345(a)(5)

“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:(5) To compel or to quash the production of documents or tangible things at a deposition.” (CRC 3.1345(a)(5).)

Although Defendant argues that under CRC 3.1345(b)(1) it didn’t have to provide a separate statement because no responses were provided, the Court does not find this argument availing because Plaintiff provided responses when objecting to all the requests for production in the deposition notice.

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040[.]” (CCP §2025.450(b)(2).) “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.)

Here, the Court notes that Defendant knew that Plaintiff objected to the deposition notice, but Defendant’s meet and confer didn’t address these objections. Defendant’s meet and confer simply seemed to ask for additional dates and did not address the issues brought up in the objections to the deposition notice.

The Court further notes that it does not find Plaintiff’s argument about the instant motion being moot to be persuasive because Plaintiff provides no legal authority for this assertion.

Finally, while the Court plans to deny this motion; the Court notes that Defendant requested additional dates for the deposition, but Plaintiff did not respond to Defendant’s August 23, 2023 email requesting additional dates.

Suffice to say, the course of conduct here—from both sides—appears to be less than a model of professionalism and good-faith negotiation and discussion.

SANCTIONS

(g) (1) “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).)

Opposition argues that sanctions should be denied, but Movant didn’t even request sanctions.

Overall, this situation appears to be a classic example of a breakdown in the discovery process.

As courts have noted, the Civil Discovery Act (§ 2016.010 et seq.) “requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.... This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293 [cleaned up].)

The law “requires that there be a serious effort at negotiation and informal resolution.... Argument is not the same as informal negotiation ... attempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways; and ... a reasonable and good faith attempt at informal resolution entails something more than bickering with opposing counsel .... Rather, ... counsel must attempt to talk the matter over, compare their views, consult, and deliberate.’ ” (Id. at p. 1294 [cleaned up].)

It is untenable to expect civil courts to handhold counsel through the process of scheduling every deposition in a case because counsel are unable to agree on dates or otherwise experience a breakdown in their ability to communicate professionally and extend each other professional courtesy.

Motions such as this one clog the dockets of the courts, increase expenditure of costs and resources by all involved—including the represented parties—and represent a breakdown in a process that is meant to be conducted informally but professionally by counsel on their own—ideally without the need to involve the Court because parties are unable to get on the phone and work out agreeable dates for a deposition.

The Court would respectfully suggest that, in certain circumstances, it makes more sense to pick up the phone and speak to opposing counsel instead of firing off a slew of emails probably designed to be attached as exhibits to a motion.

It’s possible that, at the hearing, the parties will enlighten the Court as to the insuperable obstacles that presented themselves to working this deposition-scheduling issue out on their own, which could’ve spared all involved a formal motion and unknown amounts of billable hours.