Judge: David A. Rosen, Case: 22GDCV00473, Date: 2023-09-01 Tentative Ruling
Case Number: 22GDCV00473 Hearing Date: September 1, 2023 Dept: E
Hearing Date: 09/01/2023 – 8:30am
Case No: 22GDCV00473
Trial Date: 11/13/2023
Case Name: JORGE ALVAREZ, an individual; v. FORD MOTOR COMPANY, a Delaware
Corporation, and DOES 1-10
RELIEF REQUESTED
Defendant,
Ford Motor Company, moves for an order compelling Plaintiff to attend and
testify at a deposition and produce documents within 7 days, pursuant to
California Code of Civil Procedure sections 128, 2023.010, 2025.010, and
2025.450.
Defendant
also moves for an order requiring Plaintiff and/or Plaintiff’s attorney to pay
sanctions, including reasonable attorney’s fees, in the amount of $1,410.00.
This
motion is made on the grounds that Plaintiff has failed to provide dates on
which he is available for deposition despite numerous requests by Defendant,
and has failed to meet and confer on this issue in good faith.
BACKGROUND
The instant Complaint was
filed on 08/02/2022. Plaintiff alleges 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.
Defendant provides the
following procedural background with respect to the instant discovery motion:
Defendant served
Plaintiff’s counsel a notice of Plaintiff’s deposition on December 14, 2022,
scheduled for January 17, 2023. (Decl. Proudfoot ¶2, Ex. A.)
Plaintiff served an
objection to the deposition notice on January 16, 2023, stating, among other
things, that they would not appear. (Decl. Proudfoot ¶3, Ex. B.)
On February 7, 2023,
February 15, 2023, March 15, 2023, and April 19, 2023 Defendant’s counsel
requested deposition dates; however, Plaintiff’s counsel never responded. (See
Decl. Proudfoot ¶¶5-8.)
Defendant’s counsel also
alleges other communications in paragraphs 9-11 of the Proudfoot declaration;
however, Defendant did not attach the alleged exhibits that the declaration cites
to to support those assertions. [The Court notes that these allegations in ¶¶9-11
of the Proudfoot Declaration do not appear to present a dispositive basis for
grounds to deny or grant the motion, thus the failure to attach those exhibits
is of no significance.]
Defendant’s counsel
further states that Plaintiff’s counsel has failed to provide a new date for
the deposition as of the date of filing this motion. (Decl. Proudfoot ¶12.)
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).)
ANALYSIS/TENTATIVE RULING
Defendant’s motion does
not explain in any clear manner how it met the requirements of § 2025.450.
Since there is no
Opposition, and since the Defendant did not address § 2025.450(a), the Court
notes that it appears that Defendant has no problem with meeting the
requirements of § 2025.450(a). Defendant is moving to compel the deposition of
Plaintiff and production of documents based on Plaintiff failing to attend the
deposition. Of particular significance under § 2025.450(a) is whether the
objections asserted by Plaintiff are valid under 2025.410.
Plaintiff’s objections do
not appear valid under 2025.410. In relevant part of 2025.410(a), “Any party
served with a deposition notice that does not comply with Article 2 (commencing
with Section 2025.210) waives any error or irregularity unless that party
promptly serves a written objection specifying that error or irregularity at
least three calendar days prior to the date for which the deposition is
scheduled, on the party seeking to take the deposition and any other attorney
or party on whom the deposition notice was served.” (CCP §2025.410(a).)
Here, Plaintiff served
objections on January 16, 2023, and the deposition was scheduled for January
17, 2023. Therefore, Plaintiff’s objections were not timely asserted.
As to 2025.450(b)(1),
Defendant makes no attempt to comply with this requirement. “ 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 Demand for Production of Document in the deposition notice listed
26 categories and nowhere in the motion or declaration does Defendant attempt
to demonstrate specific facts showing good cause justifying each request.
As to 2025.450(b)(2),
Proudfoot’s declaration sufficiently demonstrated satisfaction of the meet and
confer requirement based on ¶¶5-8 of his declaration wherein he emailed
Plaintiff’s counsel several times requesting deposition dates.
If, at the hearing, Defendant
can demonstrate satisfaction of § 2025.450(b)(1) to the Court, the Court is
inclined to GRANT the instant motion.
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).)
Defendant requests
sanctions in the amount of $1,400.00 against Plaintiff and/or their counsel.
Proudfoot bases his request for sanctions on the following: (1) An hourly rate
of $150.00; (2) Three hours preparing this motion; (3) An anticipated two hours
to review and analyze opposition; (4) An anticipated two hours to prepare a
reply; (5) An anticipated two hours to attend the hearing on this motion; and
(6) The Court’s filing fee of $60.00. (Decl. Proudfoot ¶14.)
Defendant further
requests “the Court to order paid by Plaintiff and delivered to my office
within 30 days of the order granting this motion.” (Decl. Proudfoot ¶14.)
The
Court will address the issue of sanctions at the hearing.