Judge: David B. Gelfound, Case: 23CHCV00711, Date: 2024-04-25 Tentative Ruling

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Case Number: 23CHCV00711    Hearing Date: April 25, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-49

MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS BY DEFENDANT SANTA MONICA BMW’S PERSON MOST KNOWLEDGEABLE, AND REQUEST FOR SANCTIONS

Motion filed: 11/13/23

MOVING PARTY: Plaintiff Sorush Sharif (“Plaintiff”)

RESPONDING PARTY: Defendant Santa Monica BMW (“Defendant”)

NOTICE: OK¿¿ 

RELIEF REQUESTED: An order from this Court to compel the attendance of Defendant’s Person Most Knowledgeable and production of documents, and to impose monetary sanctions against Defendant and its attorney of record in the amount of $3,554.01.

TENTATIVE RULING: The motion is GRANTED IN PART. The Request for Monetary Sanctions is DENIED.

BACKGROUND

Plaintiff Sorush Sharif (“Plaintiff”) filed this Song-Beverly Consumer Warranty Act lawsuit over alleged defects in his 2021 BMW 430i Coupe (the “Vehicle”), which was manufactured by Defendant BMW of North America, LLC (“BMW NA”). Plaintiff leased the Vehicle in new condition on March 6, 2021, from Crevier BMW Santa Ana, with manufacturer’s express warranty.  Defendant Santa Monica BMW (“SM BMW”) is an authorized service and repair facility of BMW NA.

On June 12, 2023, Plaintiff initiated the action against Defendants BMW NA, SM BMW, (collectively, “Defendants”), and Does 1 through 50. The Complaint 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(b), and (4) Violation of Song-Beverly Act – Section 1796.5. Subsequently, Defendants filed their Answer to the Complaint on September 20, 2023.

On November 13, 2023, Plaintiff filed the instant Motion to Compel Deposition Attendance and Production of Documents by Defendant SM BMW’s person most knowledgeable (“PMK”).

On April 9, 2024, SM BMW filed its Objection. Subsequently, Plaintiff filed their Reply on April 18, 2024.

ANALYSIS

To compel the deposition of a party to an action or its officer, director, managing agent, or employee, the deposing party need only serve a notice in compliance with Code of Civil Procedure section 2025.240. (Code Civ. Proc., § 2025.280, subd. (a).) Nothing further is needed. If, after service of the deposition notice, the deponent fails to appear “without having served a valid objection under Section 2025.410 . . .” the deposing party may move for an order compelling the deponent’s attendance and testimony. (Id., § 2025.450, subd. (a).)

An objection under Code of Civil Procedure section 2025.410 is one that is written, made “at least three calendar days prior to the date for which the deposition is scheduled,” and pertains to an “error or irregularity” with the notice itself. (Code Civ. Proc., § 2025.410, subd. (a).) The procedure for a deponent who seeks to narrow the scope of a discovery request is to move for a protective order. (Id., § 2025.420, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

Code of Civil Procedure section 2025.450 subdivision (b)(2) provides, in part, that “[t]he motion shall be accompanied by a meet and confer declaration ... or, when the deponent fails to attend the deposition and produce the documents ... by declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

“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.” (Code Civ. Proc., § 2016.040.)

Here, Plaintiff served his first deposition notice for the deposition of SM BMW’s PMK on September 13, 2023, for a deposition date of October 23, 2023. (Saeedian Decl., ¶ 3, Ex. “1.”) Defendant SM BMW served its objection to the noticed deposition on October 18, 2023, making objections to each of the 26 categories of subject matter which the PMK was to be examined on. (Saeedian Decl., ¶ 5, Ex. “3.”) Additionally, Plaintiff’s counsel Michael Saeedian attests that Defendant SM BMW did not provide alternative dates. (Ibid.)

Following this, Plaintiff’s counsel requested an alternative deposition date by October 27, 2023. (Saeedian Decl., ¶ 6.) On November 8, 2023, Plaintiff’s counsel sent an email follow-up to Defendants’ counsel, seeking to obtain alternate dates for deposition. (Id., ¶ 7.) Despite this effort, Plaintiff’s counsel, Mr. Saeedian, states in his declaration that “[t]o date, the defendant has provided no good cause for its refusal to produce a witness for deposition as requested by the plaintiff.” (Id., ¶¶ 5, 7.)

Here, the meet and confer is required to address two issues: scheduling and SM BMW’s objections. Pursuant to Code of Civil Procedure section 2016.040, “[the] 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.” However, the declaration is only evident about the Plaintiff’s attempt to resolve the scheduling issue by requesting the Defendant to provide two alternative deposition dates. (Saeedian Decl., ¶¶ 4, 6, 7, Ex.”4,” “5.”)

The absence of a code-compliant declaration detailing Plaintiff meet and confer with Defendant to resolve the dispute over Defendant’s written objections to the notice of deposition is evident that the meet and confer requirements are not fully satisfied.

2.      Separate Statement

“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[.]” (Cal. Rules of Court rule 3.1345 (a)(5).) (Underlines added.)

Here, the motion seeks to compel the attendance of Defendant’s Person Most Knowledgeable and production of documents at the deposition, mandating a separate statement. However, the case files reflect no separate statement filed with regard to the instant Motion. Consequently, the moving papers are incomplete.

Accordingly, the Court notes that the moving party has not complied with required procedural requirements, as discussed above.

B.     Motion to Compel Deposition Attendance

SM BMW states, in its Opposition, that “[it] has agreed to offer a proposed a date to set the PMK deposition” and that “Santa Monica BMW will agree to produce its Person Most Knowledgeable for deposition.” (Opp’n., at 2, Don Decl., ¶ 5.)

Based on this record, the Motion on this issue is GRANTED.

C.    Production of Documents

Code of Civil Procedure section 2025.450 subdivision (b)(1) provides that “[t]he motion [submitted under subdivision (a)] 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.”

Plaintiff submits the Motion under the authority of Code of Civil Procedure section 2025.450 subdivision (a), which premised that the responding did not serve valid responses. (Ibid.) Here, SM BMW served an objection to the notice deposition on October 18, 2023. (Saeedian Decl., ¶ 5.) Consequently, Plaintiff must meet the threshold burden to demonstrate that SM BMW’s objections are invalid.

As previously discussed, Plaintiff’s moving papers are incomplete due to the absence of a separate statement for the Court’s consideration in resolving the discovery disputes. A statement must be “full and complete so that no person is required to review any other document in order to determine the full request and full response”, and a statement of “the factual and legal reasons” for compelling the production. (See Cal. Rules of Court, rule 3.1345 (c).)

Therefore, Plaintiff has not fulfilled his burden to present statements of factual and legal arguments as to each of SM BMW’s objections served on October 18, 2023.

Accordingly, the Court DENIES the Motion to compel the production of documents at the deposition.

Therefore, the Court GRANTS IN PART the Motion.

D.    Monetary Sanctions

Plaintiff requests the Court to impose monetary sanctions under the authority of Code of Civil Procedure section 2025.480, subdivision (j), and section 2025.450, subdivision (g)(1).

“[T]he 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, subd. (g)(1).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it 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., § 2025.480, subd. (j).)

Here, the authority under Code of City Procedure, section 2025.480, subdivision (j) is inapplicable as the Court has previously concluded that the Motion is GRANTED IN PART, and DENIED IN PART.

Furthermore, the Court has analyzed the procedural deficiencies, including insufficient meet and confer and absence of a separate statement. Consequently, in view of the totality of the circumstances, the Court refrains from imposing monetary sanctions.

Therefore, the Request for Monetary Sanctions is DENIED.

CONCLUSION

Plaintiff’s Motion to Compel Attendance of Defendant Santa Monica BMW’s Person Most Knowledgeable is GRANTED.

Santa Monica BMW is ordered to produce its Person Most Knowledgeable at a deposition to be scheduled by Plaintiff. Plaintiff must provide at least ten days’ notice of the deposition, with extended notice as applicable under Code of Civil Procedure.

Plaintiff’s Motion to Compel Production of Documents at deposition is DENIED.

Plaintiff’s Request for Monetary Sanctions is DENIED.

Moving party to give notice.

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-49

MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS BY DEFENDANT BMW OF NORTH AMERICA, LLC’S PERSON MOST KNOWLEDGEABLE, AND REQUEST FOR SANCTIONS

Motion filed: 11/30/23

MOVING PARTY: Plaintiff Sorush Sharif (“Plaintiff”)

RESPONDING PARTY: None

NOTICE: OK¿¿ 

RELIEF REQUESTED: An order from this Court to compel the attendance of Defendant BMW of North America LLC’s (“BMW NA”) Person Most Knowledgeable and the production of documents. Moving party also request the Court to impose monetary sanctions against BMW NA and its attorney of record in the amount of $2,066.75.

TENTATIVE RULING: The motion is GRANTED. The Request for Monetary Sanctions is GRANTED IN PART.

BACKGROUND

Plaintiff Sorush Sharif (“Plaintiff”) filed this Song-Beverly Consumer Warranty Act lawsuit over alleged defects in his 2021 BMW 430i Coupe (the “Vehicle”), which was manufactured by Defendant BMW of North America, LLC (“BMW NA”). Plaintiff leased the Vehicle in new condition on March 6, 2021, from Crevier BMW Santa Ana, with manufacturer’s express warranty.  Defendant Santa Monica BMW (“SM BMW”) is an authorized service and repair facility of BMW NA.

On June 12, 2023, Plaintiff initiated the action against Defendants BMW NA, SM BMW, (collectively, “Defendants”), and Does 1 through 50. The Complaint 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(b), and (4) Violation of Song-Beverly Act – Section 1796.5. Subsequently, Defendants filed their Answer to the Complaint on September 20, 2023.

On November 30, 2023, Plaintiff filed the instant Motion to Compel Deposition Attendance and Production of Documents by Defendant BMW NA’s person most knowledgeable (“PMK”).

No opposing papers have been received by the Court.

ANALYSIS

To compel the deposition of a party to an action or its officer, director, managing agent, or employee, the deposing party need only serve a notice in compliance with Code of Civil Procedure section 2025.240. (Code Civ. Proc., § 2025.280, subd. (a).) Nothing further is needed. If, after service of the deposition notice, the deponent fails to appear “without having served a valid objection under Section 2025.410 . . .” the deposing party may move for an order compelling the deponent’s attendance and testimony. (Id., § 2025.450, subd. (a).)

An objection under Code of Civil Procedure section 2025.410 is one that is written, made “at least three calendar days prior to the date for which the deposition is scheduled,” and pertains to an “error or irregularity” with the notice itself. (Code Civ. Proc., § 2025.410, subd. (a).) The procedure for a deponent who seeks to narrow the scope of a discovery request is to move for a protective order. (Id., § 2025.420, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

No meet and confer is required to compel initial deposition attendance. Instead, there must be a declaration showing that moving party inquired about the nonappearance.¿ (Code Civ. Proc., §2025.450, subd., (b)(2).)¿¿"Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.¿(Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

Here, Plaintiff served his first deposition notice for the deposition of BMW NA’s PMK on September 13, 2023, for a deposition date of October 20, 2023. (Saeedian Decl., ¶ 3, Ex. “1.”) Defendant BMW NA did not serve any objections nor did it produce its PMK. (Saeedian Decl., ¶ 5, Ex. “4.”) Following this, Plaintiff’s counsel requested an alternative deposition date on November 8, 2023. (Saeedian Decl., ¶ 5.) On November 28, 2023, Plaintiff’s counsel sent an email follow-up to BMW NA’s counsel, seeking to obtain alternate dates for deposition. (Id., ¶ 6.) Despite this effort, Plaintiff’s counsel, Mr. Saeedian, states in his declaration that “[t]o this date, the defendant [BMW NA] still refuse to produce a witness[.]” (Id., ¶ 9.)

Based on the above records, the Court concludes that Plaintiff has made good faith attempts to rescheduling. However, Plaint does not present a declaration showing his inquiry about the nonappearance at the deposition on October 20, 2023, which is a deficiency, under Code of Civil Procedure section 2025.450 subdivision (2).

2.      Separate Statement

The California Rules of Court rule 3.1345 (b)(5) explicitly states that “A separate statement is not required under the following circumstances: (1) When no response has been provided to the request for discovery[.]”

It is uncontested that BMW NA did not serve any objections or produce the PMK’s attendance, hence no sperate statement is required.

B.     Motion to Compel Deposition Attendance

Plaintiff’s first deposition notice was served on BMW NA for the deposition of BMW NA’s PMK on September 13, 2023, for a deposition date of October 20, 2023. (Saeedian Decl., ¶ 3, Ex. “1,” Proof of Service.)

Here, there is no evidence that BMW NA objected to the deposition. Since BMW NA does not oppose or bring forth evidence explaining the nonappearance, Defendant’s motion to compel is GRANTED. (Code Civ. Proc., § 2025.450, subd. (a).)¿  

C.    Monetary Sanctions

Additionally, Plaintiff seeks monetary sanctions against BMW NA and its attorney of record. Code of Civil Procedure, section 2025.450 subdivision (g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust.  

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work in preparing the Motion is $816.75, calculated at a reasonable hourly rate of $500 for 1.5 hours reasonably spent plus $66.75 for filing fees.

CONCLUSION

Plaintiff’s Motion to Compel Attendance of Defendant BMW NA’s Person Most Knowledgeable and Production of Documents is GRANTED.

BMW of North America, LLC is ordered to produce its Peron Most Knowledge and the requested documents at a deposition to be scheduled by Plaintiff. Plaintiff must give at least ten days’ notice of the deposition, with extended notice as applicable under Code of Civil Procedure.

Plaintiff’s Request for Monetary Sanctions is GRANTED IN PART.

BMW of North America, LLC and its attorney(s) of record are ordered to jointly and severely pay $816.75 to Plaintiff.

Moving party to give notice.