Judge: Daniel S. Murphy, Case: 21STCV13210, Date: 2024-01-22 Tentative Ruling

Case Number: 21STCV13210    Hearing Date: January 22, 2024    Dept: 32

BACKGROUND

            On April 7, 2021, Plaintiffs 3D Clean, LLC and MediClean Linen & Laundry, Inc. filed this action against Defendant Emerald Los Angeles, LLC, asserting causes of action for (1) breach of the covenant of good faith and fair dealing, (2) breach of contract, and (3) money due and owing.

            On December 22, 2023, Plaintiffs filed the instant motion to compel the deposition of Defendant Emerald’s PMQ. Defendant filed its opposition on January 8, 2024.

LEGAL STANDARD

“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 … 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

DISCUSSION

Plaintiffs move to compel Defendant to produce a PMQ to testify as to Topics 15, 16, 21, 25-31, and 36, and to produce documents responsive to Requests 1, 47, and 48. (Mtn. 2:1-9.) There is no dispute that Plaintiffs are entitled to depose Defendant’s PMQ and obtain associated documents, but the parties have conflicting accounts of the meet and confer process and disagree about how knowledgeable the PMQ must be. Plaintiffs argue that Defendant failed to timely respond to the deposition notice, interposed belated objections, and has offered inconsistent positions on whether it would produce a PMQ. Defendant argues that it has agreed to designate a PMQ and has produced the requested documents, and therefore the motion is needless and designed to harass.

            Plaintiffs served the deposition notice on May 2, 2023 and set the deposition for June 22, 2023. (Schaus Decl. ¶ 3, Ex. B.) On June 9, 2023, Plaintiffs wrote a letter to Defendant regarding Defendant’s purported failure to respond to written discovery and to confirm deponent appearances. (Id., Ex. C.) The letter did not mention the deposition notice for the PMQ or claim that Defendant’s response to that notice was late. Based on the initial deposition date of June 22, 2023, Defendant had until June 19, 2023 to object to the deposition. (See Code Civ. Proc., § 2025.410(a).) The deposition was subsequently rescheduled to July 18 and 19, 2023, and Defendant timely served its objections on July 14, 2023. (Knudsen Decl. ¶ 7.)

In its July 14 response, Defendant objected to the Topics at issue and stated, “To be determined and supplemented.” (Schaus Decl., Ex. D.) As for Topic No. 36, Defendant objected but then identified two individuals who would “provide testimony on the topic identified to the extent possible.” (Ibid.) Defendant served a supplemental response on September 27, 2023. (Id., Ex. E.) In the September 27 response, Defendant indicated that it would produce a witness for Topics 15, 16, and 36, and then asserted that the remaining Topics at issue are overbroad because multiple employees possessed responsive information, making it impossible to designate a PMQ. (Ibid.) Defendant also stated that it would produce all non-privileged responsive documents to the extent they exist. (Ibid.) During subsequent meet and confer, Defendant expressed the position that because the individuals most knowledgeable on certain Topics no longer worked for Defendant, Defendant is not obligated to make any current employee sufficiently knowledgeable in order to testify. (Schaus Decl., Ex. H.) Defendant stated it will produce a PMQ who “will only be able to read records.” (See Schaus Decl., Ex. K, L.)

Defendant’s obligation is to “produc[e] the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398.) The designated witness should make “some effort to familiarize themselves with the areas of their supposed ‘knowledge.’” (Id. at p. 1397.) Defendant is not excused from producing a PMQ just because multiple employees may have knowledge, or because certain knowledgeable individuals no longer work for Defendant. However, Defendant is not required to designate the PMQ beforehand, and neither Plaintiff nor the Court may designate the PMQ for Defendant. It cannot be determined at this stage whether the PMQ will be adequate or not.

Lastly, Defendant has produced all responsive documents in its possession and conducted a further check for missed documents. (Knudsen Decl. ¶¶ 11-12.) Defendant cannot be expected to produce anything more.

CONCLUSION

            Plaintiffs’ motion to compel deposition is GRANTED. Defendant shall produce the Person(s) Most Knowledgeable on the Topics at issue. Sanctions are denied as the parties acted with substantial justification.