Judge: David Sotelo, Case: 21STCV25766, Date: 2022-10-05 Tentative Ruling
Case Number: 21STCV25766 Hearing Date: October 5, 2022 Dept: 40
MOVING PARTY: Defendant
Kia Motors America, Inc.
This is a breach of warranty case arising out of Plaintiff
Isabel Solis’ purchase of a 2017 Kia Sportage. Plaintiff alleges that Defendant
Kia Motors America, Inc. breached express and implied warranties relating to
the condition and failure to repair the subject vehicle.
Motion to Compel Deposition
Legal Standard: A motion to compel attendance at a
deposition can be made by the party that served the deponent on the ground that
a party deponent or party-affiliated deponent did not attend a deposition or
appeared but refused to proceed.¿ (See Code Civ. Proc., § 2025.450, subd. (a).)¿ To establish
this ground moving party must show that (a) the deponent was properly served
with a deposition notice, (b) that the deponent failed to appear at the
deposition or refused to provide other dates, (c) that, in the instance of an
objection to the initial noticed date, moving party attempted to meet and
confer to reschedule the deposition; and (d) good cause exists to compel
attendance at the deposition. (See Code Civ. Proc., § 2025.450.)
On August 16,
2021, Defendant properly served a notice of taking Plaintiff’s deposition
originally set for October 5, 2021. On September 24, 2021 Plaintiff objected to
the notice based on unavailability and unilateral notice. That same day,
Defendant’s counsel emailed Plaintiff’s counsel asking for alternative dates,
Plaintiff did not respond. On December 30, 2021, Defendant again requested
additional dates for Plaintiff’s deposition, Plaintiff failed to respond. On
March 8, 2022 Defendant again requested additional dates for Plaintiff’s
deposition, Plaintiff failed to respond.
As a result,
Defendant was forced to bring this motion with an initial hearing date of June
8, 2022 but continued twice by moving party. These attempts satisfy the meet and confer requirement of pursuant to Code of
Civil Procedure Section 2025.450, subdivision (b)(2).
Despite this motion
being outstanding since May 12, 2022, Plaintiff has not filed an opposition
further lending credibility to the motion.¿
(See Cal. Rules of Court, rule 3.1342 [“The failure of the opposing party to
serve and file a written opposition may be construed by the court as an
admission that the motion is meritorious, and the court may grant the motion
without a hearing on the merits”]; Sexton v. Superior Court (1997) 58
Cal.App.4th 1403, 1410 [“The rule [inferring merit in unopposed motions] seems
to apply only when a party has not filed any written opposition”].)
Defendant’s Motion to Compel Deposition is GRANTED.
Sanctions
Defendant also seeks monetary sanctions against Plaintiff
and Plaintiff’s counsel in the amount of $1,110.00 for the reasonable costs in
bringing the instant motion: requesting fees for 2 hours in the preparation of the
motion, 1 hour responding to the opposition, and 4 hours preparing for and
attending the hearing on the motion at the hourly rate of $150.00 per hour, for
a total of 7 hours. (See Kashani Decl. at ¶ 10.) Defendant further represents
that it incurred $60.00 in filing fees. (Id.) The Court finds that the filing
fees, and the time spent preparing the motion are reasonable expenses.
However, as no opposition was filed and there are no
significant issues requiring four hours of preparation to attend the hearing,
the court will reduce the sanctions to a total of 4 hours of attorney time for
a total of $660.00 (when combined with the filing fee).
Defendant’s Request
for Sanctions is GRANTED as to Plaintiff and her Counsel in the amount of $660.00,
to be paid within (60) days.