Judge: Christopher K. Lui, Case: 21STCV31746, Date: 2023-05-09 Tentative Ruling

Case Number: 21STCV31746    Hearing Date: May 9, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiffs allege that there were various defects with the 2021 KIA Seltos they purchased.

            Plaintiffs Jade Baer and Mikaela Baer aka Mikaela Silvar-Satterfield move to compel the deposition of Defendant’s person most knowledgeable and custodian of records. Plaintiffs also request monetary sanctions.

TENTATIVE RULING

Plaintiffs Jade Baer and Mikaela Baer aka Mikaela Silvar-Satterfield’s motion to compel the deposition of Defendant’s person most knowledgeable is GRANTED as to Deposition Topics (Matters For Examination) Nos. 1 – 24. 

Plaintiffs’ motion to compel production of documents at deposition is GRANTED as to Requests For Production Nos. 1 – 20, and DENIED as to Requests Nos. 21 – 23.

            Plaintiffs’ request for sanctions is DENIED, as the notice of motion does not specify every person, party and attorney against whom the sanction is sought, as required by Civ. Proc. Code, § 2023.040.

DISCUSSION:

Motion To Compel Deposition

            Plaintiffs move to compel the deposition of Defendant’s person most knowledgeable and custodian of records. Plaintiffs also request monetary sanctions.

            Civ. Proc. Code, § 2025.450 provides in pertinent part:

(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[1], 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.

. . .

(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.
. . .

     (Code Civ. Proc., § 2025.450(a), (b), (g)[bold emphasis added].)

            Defendant failed to produce a PMK and its custodian of records at the September 27, 2022 noticed deposition and Plaintiffs took a statement of nonappearance. (Declaration of Maxwell Kreymer, ¶ 7; Exh. D.) Plaintiffs’ counsel contacted Defendant to inquire about the non-appearance and to request alternative dates of availability for the deposition to go forward before seeking court intervention. (Kreymer Decl., ¶ 8; Exh. C.) However, Defendant has not provided alternative dates. (Id.)

u        Deposition Topics (Matters For Examination) Nos. 1 – 24: GRANT.

Plaintiffs are entitled to an order compelling Defendant’s PMK to appear for his deposition. Service of a notice of deposition is sufficient compel the deposition of an employee of a party. (Civ. Proc. Code, § 2025.450(a).)

Absent a protective order, for which Defendant has not moved, Defendant cannot even instruct the PMK not to answer a question at deposition on the ground of irrelevance. A deponent may not refuse to answer questions on the ground of relevance or based on the form of the question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15.)

[E]ven were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. Code of Civil Procedure section 2025, subdivision (m), governing deposition objections, divides objectionable questions into three categories. Subdivision (m)(1) applies to questions delving into privileged areas and provides that to protect privileged information, "a specific objection to its disclosure" must be "timely made during the deposition Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure.

Code of Civil Procedure section 2025, subdivision (m)(2) applies to questions containing errors or irregularities that might be cured if promptly brought to counsel's attention, such as errors in the form of the question. Objection to these types of missteps is "waived unless a specific objection to them is timely made during the deposition." Subdivision (m)(2) makes clear that counsel should not instruct the deponent not to answer such objectionable questions, expressly stating that "unless the objecting party demand the taking of the deposition be suspended to permit a motion for a protective order under subdivision (n), the deposition shall proceed subject to the objection."

Code of Civil Procedure section 2025, subdivision (m)(3) governs inquiry into irrelevant and immaterial matters and provides: "Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition (Italics added.) In other words, the deponent's counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial.

Code of Civil Procedure section 2025, subdivision (n) goes on to state that the deposition may be suspended if "any party attending the deposition or the deponent demands the taking of testimony be suspended to enable that party or deponent to move for a protective order on the ground that the  [*1015]  examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party." Deposing counsel's insistence on inquiring into irrelevant areas could justify suspension under this standard, but only if it reaches the point where it could legitimately be said that counsel's intent was to harass, annoy, embarrass, or oppress. Taken as a whole, these provisions clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel's conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.

(Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15 (bold emphasis and underlining added).)

            Defendant may object on the ground of attorney-client privilege or attorney work product if a question calls for disclosure of such privileged information, and instruct the PMK not to answer such question.

u         Requests For Production, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20: GRANT.

            In the separate statement, Plaintiffs have made a fact-specific showing of good cause for production of these categories of documents requested.

There is no basis for Defendant to refuse to produce a PMK deponent on these topics. Defendant indicates that on April 17, 2023—long after this motion was filed—Defendant proposed May 24, 2023 or May 25, 2023 for the deposition of its PMK.

            CCP § 2025.280(a) provides:

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

(Code Civ. Proc., § 2025.280(a)[bold emphasis added].)

        CCP § 2025.230 provides:

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

     (Bold emphasis added.)

            Defendant is required to designate and produce a PMK on the noticed deposition topics, absent having obtained a protective order pursuant to CCP § 2025.420[2] that a PMK need not be produced on certain topics.

            Defendant’s objection on the ground that the category is overly broad and therefore is unjustly burdensome and oppressive is OVERRULED as without merit.

            Where asserted, Defendant’s objection on the ground that the request seeks proprietary, commercially sensitive and confidential information is OVERRULED. Defendant has not met its burden of demonstrating the existence of such information in responsive documents. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 542.)

            Where asserted, Defendant’s objection on the ground that the request seeks disclosure of information which is not related to the issues presented by the subject matter of this litigation is irrelevant, immaterial, and not reasonably calculated to lead to the discovery of admissible evidence, is OVERRULED. As noted above, Plaintiffs have demonstrated good cause for production of the requested documents.

            Defendant’s objection on the grounds of the attorney-client privilege and work product doctrine is SUSTAINED to the extent that such privileged documents are responsive to this request. However, Defendant must produce a privilege log identifying the documents being withheld and the applicable privilege(s). 

            Where asserted, Defendant’s objection on the ground that the request seeks documents in the possession, custody and control of third parties is OVERRULED. Defendant did not provide the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (See Civ. Proc. Code § 2031.230.)

            Where asserted, the objection that the request seeks premature discovery of expert witness information, this objection is OVERRULED, as the request does not seek such information, but instead relates to documents which existed before litigation was commenced.  

            Where asserted, the objection on the ground of privacy rights of third parties is OVERRULED. Defendant has not identified such third parties whose rights are implicated in documents responsive to this request.

Requests For Production Nos. 21, 22, 23: DENY.

            Plaintiffs have not made a fact-specific showing of relevance for this category of documents requested.

Sanctions

            Plaintiffs’ request for sanctions is DENIED, as the notice of motion does not specify every person, party and attorney against whom the sanction is sought, as required by Civ. Proc. Code, § 2023.040.