Judge: David B. Gelfound, Case: 23CHCV01999, Date: 2024-08-05 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies). 

Case Number: 23CHCV01999    Hearing Date: August 5, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL DEPOSITION ATTENDANCE OF DEFENDANT’S PERSON MOST KNOWLEDGEABLE, REQUEST FOR SANCTIONS

Motion filed: 5/10/24

MOVING PARTY: Plaintiff Jose Rosales Alvarez (“Alvarez” or “Plaintiff”)

RESPONDING PARTY: Defendant American Honda Motor Co., Inc. (“Defendant” or “AHM”)

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to compel the attendance of Defendant AHM’s Person Most Knowledgeable (“PMK”). Plaintiff also requests the Court to impose monetary sanctions against AHM and its attorney of record in the amount of $2,929.50.

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

BACKGROUND

Plaintiff filed this Song-Beverly Consumer Warranty Act (“Song-Beverly Act”) lawsuit over alleged defects in his 2020 Honda Civic with VIN: 19XFC1F38LE212889 (the “Subject Vehicle”), which was manufactured by Defendant AHM. Plaintiff purchased the Subject Vehicle on January 29, 2022, entering into a warranty agreement with AHM. (Compl. ¶ 15.)

On July 10, 2023, Plaintiff filed his Complaint against AHM and Does 1 through 10. The Complaint alleges one cause of action for Violation of Song-Beverly Act – Breach of Express Warranty. Subsequently, AHM filed its Answer to the Complaint on August 14, 2023.

On May 10, 2024, Plaintiff filed the instant Motion to Compel Deposition Attendance of Defendant’s PMK (the “Motion”). Subsequently, AHM filed its Opposition on July 26, 2024, and Plaintiff replied on July 29, 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. (Code Civ. Proc., § 2025.450, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

"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, on January 30, 2024, Plaintiff served AHM with a Notice of Deposition for the deposition of AHM’s PMK and custodian of records, for a deposition date of March 14, 2024. (Lupinek Decl., ¶ 3, Ex. “A.”) On February 23, 2024, AHM’s counsel notified Plaintiff that its PMK was unavailable on the noticed date. (Id. ¶ 4.) Subsequently, on March 7, 2024, AHM served its written objection to the deposition notice. (Id. ¶ 5, Ex. “C.”) In response, Plaintiff sent AHM a meet and confer letter discussing the issues raised in AHM’s objection and requested available dates for AHM’s PMK. (Id. ¶ 6.) No response was received by Plaintiff. (Ibid.)

On March 20, 2024, after AHM’s PMK failed to appear at the deposition, Plaintiff’s counsel sent AHM an email requesting available deposition dates previously requested. (Id. ¶ 9.) However, by the time of filing of the Motion, Plaintiff had not heard responses from AHM. (Id. ¶ 11.)

Based on these records, the Court concludes that Plaintiff has made good faith attempts to reschedule and resolve the issues.

2.      Separate Statement

The California Rules of Court rule 3.1345 (a)(5) explicitly states that “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[.]”

Here, Plaintiff has fulfilled the requirement by concurrently filing a separate statement with the Motion.

B.     Motion to Compel Deposition of AHM’s PMK

Code of Civil Procedure section 2025.280 subdivision (a) provides that service of a deposition notice “is effective to require any deponent who is a party to the action [] to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

An objection under Code of Civil Procedure section 2025.410 must be written and served “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. (Code Civ. Proc., § 2025.420, subd. (a).)

It is important to note that objections alone do not stay the taking of the deposition. To do so, the objecting party should move to quash the deposition notice and stay the taking of the deposition. (See Code Civ. Proc., § 2025.410 (c), [“In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.”])

Here, AHM’s objections are not rooted in any “error or irregularity” within the deposition notice itself. Furthermore, AHM has not filed a motion to stay the taking of the deposition or to quash the deposition notice. Although AHM claims that it is not refusing to provide a PMK for the deposition, its inability to promptly respond or schedule a date acceptable to Plaintiff’s counsel – attributed to AHM’s logistical challenges, while notable (Opp’n. at pp. 5-6, Hom Decl. ¶¶ 10-11) – does not suffice as a valid legal basis to override Plaintiff’s rights to conduct necessary discovery under the statute.

Accordingly, Plaintiff is entitled to the deposition of AHM’s PMK upon serving AHM with the valid Notice of Deposition on January 30, 2024.

Therefore, the Court GRANTS the Motion to Compel Deposition Attendance of AHM’s PMK.

C.    Request for Monetary Sanctions

If a motion to compel a party deponent to appear for a deposition is granted, the court must impose a monetary sanction "in favor of the party who noticed the deposition and against the deponent . . . 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).)

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 $900.00, calculated at a reasonable hourly rate of $450.00 for two hours reasonably spent. Plaintiff has attached a No Fee Reservation receipt to the Motion, indicating that no filing fees were incurred.

Therefore, the Court GRANTS IN PART Plaintiff’s request for monetary sanctions, awarding $900.00 in favor of Plaintiff.

CONCLUSION

The Court GRANTS Plaintiff’s Motion to Compel Deposition Attendance of Person Most Knowledgeable of Defendant American Honda Motor Co., Inc.

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

American Honda Motor Co., Inc. and its attorney(s) of record are ordered to jointly and severally pay $900.00 to Plaintiff.

Moving party to give notice.