Judge: Elaine Lu, Case: 22STCV09655, Date: 2023-04-03 Tentative Ruling

Case Number: 22STCV09655    Hearing Date: April 3, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background   

             On March 21, 2022, Plaintiffs Jessica Urquiza and Albino Urquiza Patlan (jointly “Plaintiffs”) filed the instant action against Defendant General Motors LLC (“Defendant”) arising out of Plaintiffs’ purchase of a 2017 Chevrolet Silverado.   The complaint asserts three causes of action for (1) Violation of the 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.

            On October 28, 2022, Plaintiffs filed a motion to compel the deposition of Defendant’s Person Most Knowledgeable (“PMK”), which the Court granted on January 4, 2023.  (Order 1/4/23.)  On March 17, 2023, Plaintiffs filed the instant motion to compel Defendant’s compliance with the Court’s January 4, 2023 order.  On March 24, 2023, the Court granted Plaintiffs’ ex parte application to advance the instant motion.  (Minute Order 3/24/23.)  On March 28, 2023, Defendant filed an opposition.  On March 29, 2023, Plaintiffs filed a reply.

Legal Standard

Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

Discussion

            Plaintiffs contend that Defendant has failed to comply with the Court’s January 4, 2023 order, and Plaintiffs seek monetary sanctions. 

            The Court’s January 4, 2023 order provides in relevant part that “Defendant’s person most knowledgeable is ordered to appear for deposition, remotely or with any other necessary precautions, within forty-five (45) days of notice of this order at a date and time noticed by Plaintiffs.”  (Order 1/4/23, [italics added].)  However, Plaintiffs failed to notice a date and time for the deposition of Defendant’s PMK within the 45-day period.

            As Plaintiffs’ Counsel concedes, Plaintiffs delayed giving notice of the January 4, 2023 order until February 9, 2023 – approximately 36 days after the January 4, 2023 hearing.  (Thomas Decl. ¶¶ 8-9, Exhs. A-B.)  On February 13, 2023 – approximately 40 days after the January 4, 2023 hearing and approximately 5 days before the 45-day period for compliance was to expire -- Plaintiff requested that Defendant “provide a PMK to go forward within 45 days to complete this PMK Deposition”.  (Thomas Decl. ¶ 9, Exh. B.)  Plaintiff’s Counsel then claims that Defendant failed to provide any date to depose Defendant’s PMK.  (Thomas Decl. ¶ 9.)  However, this assertion is demonstrably false.  As the opposition reflects, in emails that the parties exchanged emails, on February 15, 2023, Defense Counsel offered a PMK deposition for March 30, 2023.  (Major Decl. ¶ 5, Exh. A.)  Despite receiving this date to conduct the deposition for the instant case, Plaintiffs rejected this date to depose Defendant’s PMK for the instant case, instead utilized the March 30, 2023 date, and substituted the deposition for a different case.  (Major Decl. ¶ 6, Exh. A.)  In reply, Plaintiffs concede that this is true and that “Plaintiffs’ counsel initially agreed to this date, but later substituted a different plaintiff’s PMQ deposition for that date.”  (Reply at p.1:5-6.)

            In sum, Plaintiffs failed to notice any deposition date within the 45-day period as set forth in the January 4, 2023 order.  Instead,  40 days after the January 4, 2023 order, Plaintiffs requested for the first time that Defendant provide a date for a PMK deposition for this case.  Defendant complied within two days and offered a suitable date for the deposition to proceed in the instant action.  Plaintiff’s Counsel then substituted the deposition date that Defendant offered for the PMK in the instant case, and Plaintiffs proceeded with the PMK deposition on the date offered for another case.  The record before the Court indicates that Defendant has fully complied with the January 4, 2023 order.  Defendant has not violated the Court’s January 4, 2023 order.  Accordingly, there is no basis for the instant motion.

CONCLUSIONS AND ORDER

Based on the forgoing, Plaintiffs Jessica Urquiza and Albino Urquiza Patlan’s motion to compel compliance with the Court’s January 4, 2023 order is DENIED.

Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: April 3, 2023                                                           ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court