Judge: Frank M. Tavelman, Case: 23GDCV01942, Date: 2024-10-04 Tentative Ruling

Case Number: 23GDCV01942    Hearing Date: October 4, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Matthew A. Solomon (Plaintiff) brings this action against Kia America, Inc. (Kia). Plaintiff alleges that Kia sold him a defective 2019 Kia Niro in violation of the Song Beverly Act.

Kia now moves to compel Plaintiff’s deposition pursuant to C.C.P. § 2025.240. Plaintiff opposes the motion and Kia replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

“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.” (C.C.P. § 2025.450(a).)

II.                 MERITS

Separate Statement

The Court first addresses Plaintiff’s argument that Kia’s motion is procedurally defective for failure to include a Separate Statement pursuant to C.R.C. Rule 3.1345. Rule 3.1345 requires a separate statement for motions seeking to compel answers at a deposition (under C.C.P. § 2025.480) or to compel/quash the production of documents at a deposition. This motion is neither, thus no separate statement is required.  

Timeline

On October 6, 2023, Kia unilaterally noticed the deposition of Plaintiff. (Naqvi Decl. ¶ 2, Exh. A.) The deposition was set for January 4, 2024. (Id.) On December 29, 2023, Plaintiff objected on grounds of unavailability and unilateral notice. (Naqvi Decl. ¶ 3, Exh. B.) On March 25, 2024, Kia served an amended notice of deposition. (Naqvi Decl. ¶ 4, Exh. C.) This deposition was set for May 16, 2024. (Id.)

On May 9, 2024, Plaintiff formally responded and agreed to appear for the noticed deposition (Naqvi Decl. ¶ 5, Exh. D.) On May 15, 2024, Plaintiff’s counsel contacted counsel for Kia and requested a 1:00 p.m. deposition time rather than the noticed 10:00 a.m. time. (Naqvi Decl. ¶ 6.) Kia agreed to this request. (Id.) Later that same day, counsel for Plaintiff emailed Kia’s counsel to inform that Plaintiff could no longer attend the deposition because Plaintiff had a doctor’s appointment. (Id, Exh. E.) Plaintiff’s counsel also represented that “we will provide new dates soon”.  (Id.)

On June 26, 2024, Kia’s counsel requested Plaintiff provide alternative dates for the deposition. (Naqvi Decl. ¶ 7, Exh. F.) Kia reached out again on July 17, 2024. (Id.) Neither request received a response. On August 12, 2024, Kia filed the instant motion.

On September 19, 2024, Plaintiff’s counsel contacted counsel for Kia and offered October 16 and 17 as available deposition dates. (Gopstein Decl. ¶ 7.) Kia’s reply makes no reference to this communication.

Discussion

The Court finds Plaintiff’s argument that the instant motion is moot to be unpersuasive. Although Plaintiff has now offered alternative dates for the deposition, Kia is without a guarantee that the deposition will occur on either of those dates. This concern is especially cogent given Plaintiff failed to appear for the May 16, 2024 deposition despite serving a response stating he was available on that date. While Plaintiff’s counsel asserts that Plaintiff had a doctor’s appointment, presumably the existence of that appointment would have been known the day prior when the time was changed, or when the deposition date was agreed upon.  It is clear to the Court that Kia’s motion for an order compelling Plaintiff’ attendance at a deposition is not without purpose.

The facts here are clear. Kia appropriately noticed Plaintiff’s deposition for May 16, 2024 and Plaintiff agreed to attend. Plaintiff then did not attend the deposition asserting the existence of a doctor’s appointment which presumably should have been known when the date was agreed upon, and certainly the day prior when the time was changed. The Court finds that Kia appropriately attempted to meet and confer with Plaintiff as to alternative deposition dates, but that attempt fell upon deaf ears. Plaintiff did not offer alternative dates until well after Kia filed this motion to compel.

Accordingly, Kia’s motion is GRANTED. Since Plaintiff has already indicated availability on October 16, 2024, the Court orders the deposition to proceed on or before that day. This is consistent with Plaintiff’s request that the Court order the deposition to occur within the next 15 days.

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.” (C.C.P. § 2025.450.)

Here, the Court finds Plaintiff was without substantial justification in opposing the motion. Plaintiff’s refusal to appear and thereafter participate in meet and confer efforts clearly necessitated the bringing of this motion. Kia overlooked filing a declaration concerning reasonable sanctions. The declaration of Kia’s counsel is inadvertently silent as to the hours expended on this motion or counsel’s rates. Accordingly, Kia shall file a supplemental declaration concerning sanctions within ten days. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Kia America, Inc.’s Motion to Compel Deposition came on regularly for hearing on October 4, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL PLAINTIFF’S ATTENDANCE AT DEPOSITION IS GRANTED.  PLAINTIFF’S DEPOSITION SHALL OCCUR NO LATER THAN OCTOBER 16, 2024.

DEFENDANT KIA TO FILE A SUPPLEMENTAL DECLARATION CONCERNING A REQUESTED AMOUNT OF SANCTIONS WITHIN TEN DAYS. PLAINTIFF MAY FILE AN OPPOSITION WITHIN 2 COURT DAYS THEREAFTER. A NON-APPEARANCE CASE REVIEW RE: DISCOVERY SANCTIONS IS SET FOR OCTOBER 17, 2024.  FAILURE TO FILE THE MEMORANDUM WILL RESULT IN NO SANCTIONS BEING ISSUED AND THE MATTER TAKEN OFF CALENDAR.

DEFENDANT KIA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 4, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles