Judge: Frank M. Tavelman, Case: 24BBCV00090, Date: 2024-06-28 Tentative Ruling

Case Number: 24BBCV00090    Hearing Date: June 28, 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: 

Nidal Kobaissa (Plaintiff) brings this action against American Honda Motor Company, Inc. (Honda). Plaintiff alleges that Honda sold him a defective Certified Pre-Owned 2018 Honda Odyssey in violation of the Song Beverly Act.

On March 21, 2024, Honda served on Plaintiff its notice of deposition for the date of May 6, 2024. (Mot. Exh. A.) Honda also served its Request for the Production of Documents (RFPD) in conjunction with its deposition notice. (Id.) Honda now moves to compel Plaintiff’s attendance at a deposition and to compel Plaintiff’s further responses to RFPD. Plaintiff opposes the motion and Honda 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

Meet and Confer

The Court begins by addressing Plaintiff’s argument that Honda did not meet and confer in good faith before filing this motion. Plaintiff argues, “Defendant’s unwillingness to engage Plaintiff’s counsel in a meaningful discussion on how to facilitate the deposition of both the Plaintiff and Defendant’s Person Most Knowledgeable witness(es) renders Honda’s attempt to ‘meet and confer’ with Plaintiff meaningless.” (Opp. p. 3.)

The Court finds Honda’s failure to provide dates for the deposition of its Person Most Knowledgeable (PMK) is entirely irrelevant to whether they met and conferred prior to this motion. “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.” (C.C.P. § 2016.040.) Whether Honda cooperated with Plaintiff’s discovery requests is not an issue presented by this motion. Each side’s discovery obligations are independent of one another. If Honda refused to provide dates for the deposition of its PMK, Plaintiff’s remedy is to file a motion, not refuse to provide his own responses.

Plaintiff’s Deposition

Honda’s motion asks the Court for an order compelling two things. First, Honda asks that the Court compel Plaintiff’s attendance for deposition pursuant to C.C.P. § 2025.240(a). Second, Honda asks the Court to compel Plaintiff’s responses to their RFPD. Honda’s RFPD were served in conjunction with the Notice of Deposition. (See Mot. Exh. A.)

The Court first addresses the request to compel Plaintiff’s response to RFPD. It appears that Plaintiff served objections to these responses on May 2, 2024. (See Opp. Exh. 2.) As such, the Court construes Honda’s motion as one to compel further responses under C.C.P. § 2031.310(c), as opposed to initial responses under C.C.P. § 2031.300(b).

The above being established, the Court finds the motion is procedurally defective as to the RFPD. “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.” (C.R.C. Rule 3.1345(a).) That includes a motion “[t]o compel or to quash the production of documents or tangible things at a deposition.” (C.R.C. Rule 3.1345(a)(5).) The separate statement must include the text of each demand and response or objection. (Id.)

The notice of plaintiff’s deposition includes 31 requests for production. (Mot. Exh. A.) It appears Plaintiff served timely objections to all 31 requests. (Opp. Exh. 2.) Honda’s motion includes no separate statement and no briefing as to the impropriety of Plaintiff’s objections. As such, Honda’s motion is procedurally defective. Accordingly, the motion is DENIED without prejudice as to the RFPD.

As concerns Plaintiff’s deposition, the Court finds Honda’s motion is proper. Plaintiff did not serve a valid objection as to his testimony at deposition. Plaintiff objected only on the basis that “[t]his deposition was unilaterally noticed by Defendant for a date and time on which Plaintiff and/or Plaintiff’s counsel is unavailable.” (Opp. Exh. 2, p. 1.)

Unavailability may be a reason not to attend a deposition as a practical matter, but it is not a valid objection under C.C.P. § 2025.410. That section refers to objections to “a deposition notice that does not comply with Article 2 (commencing with section 2025.210),” not for other reasons a party cannot attend a deposition. Though it may be a professional courtesy to mutually schedule a deposition, the Civil Discovery Act does not require that. “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (C.C.P. § 2025.270(a).) “The service of a deposition notice under Section 2025.240 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.” (C.C.P. § 2025.280(a).) The party serving the notice of deposition can choose the date so long as it complies with these requirements and Honda did so here.  The deponent still has an affirmative obligation to file a a motion for protective order (to adjust the timing and/or location). CCP §2025.420(b).

Further, Honda states that they responded to Plaintiff’s May 2 objections by emailing to request alternative dates for the deposition. (Mot. Exh. C.) Honda states this email elicited no response. (Sadanaga Decl. ¶ 5.) Plaintiff’s only statement in regard to providing alternative dates is that his counsel proposed dates in a June 14, 2024 email. (See Opp. Exh. 3.) The Court notes that this email was sent on the same day as Plaintiff filed his opposition to the instant motion and over a month after the noticed deposition date.

In short, the Court finds that Honda appropriately noticed Plaintiff’s deposition and no valid objections under C.C.P. § 2025.410 were served. The Court finds that Honda appropriately attempted to meet and confer with Plaintiff as to alternative deposition dates, but that attempt fell upon deaf ears. Accordingly, Honda’s motion is GRANTED as to compelling Plaintiff’s deposition.

The Court orders the parties to further meet and confer to determine a mutually acceptable date for the deposition. Given that Plaintiff has suggested the dates of September 16, September 25, and October 4, the Court strongly suggest that Honda agree to one of these dates if possible. Should the parties be unable to reach a mutual date they are to contact the Court and a date will be chosen for them.

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 objection was clearly not within the bounds of C.C.P. § 2025.410 such that he could have reasonably expected to avoid the granting of this motion. As such, the Court grants $560 in sanctions as against Plaintiff and his counsel, jointly and severally. This amount reflects two and a half hours of attorney work at a rate of $200 per hour and the $60 filing fee. (Sadanaga Decl. ¶ 6.) The Court finds this amount reasonable to compensate Honda in bringing the motion.

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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 

American Honda Motor Company, Inc.’s Motion to Compel Deposition came on regularly for hearing on June 28, 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: 

HONDA’S MOTION TO COMPEL IS GRANTED IN PART AND DENIED IN PART.

THE MOTION TO COMPEL AS TO PLAINTIFF’S FURTHER RESPONSES TO REQUEST FOR THE PRODUCTION OF DOCUMENTS IS DENIED.

THE MOTION TO COMPEL AS TO PLAINTIFF’S ATTENDANCE AT DEPOSITION IS GRANTED.

SANCTIONS ARE AWARDED IN THE AMOUNT OF $560 AS AGAINST PLAINTIFF AND HIS COUNSEL, JOINTLY AND SEVERALLY.   PAYMENT SHALL BE DUE IN 30 DAYS.

UNLESS ALL PARTIES WAIVE NOTICE, HONDA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  June 28, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles