Judge: Frank M. Tavelman, Case: 24BBCV00238, Date: 2024-12-13 Tentative Ruling

Case Number: 24BBCV00238    Hearing Date: December 13, 2024    Dept: 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: 

Lee & Tiffany Nguyen (Plaintiffs) bring this action against General Motors, LLC (Defendant). Plaintiff alleges that Defendant sold them a defective 2022 Chevrolet Silverado 1500 (Subject Vehicle) and thereafter refused to repurchase the vehicle in violation of the Song-Beverly Act.

Before the Court is a motion by Plaintiffs to compel the deposition of Defendant’s Person Most Knowledgeable (PMK) as to a variety of categories. Plaintiffs argue that despite noticing the deposition and attempting to meet and confer, Defendant has not produced its PMK. Defendant opposes, arguing that they objected to a number of Plaintiffs’ deposition categories and that Plaintiffs failed to meet and confer in good faith. Plaintiffs did not file a reply by the required deadline established by C.C.P. § 1005(b).  

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

Timeline

On March 7, 2024, Plaintiffs served a Notice of Deposition of Defendant’s PMK. (Mandel Decl. ¶ 3, Exh. 1.) The deposition was noticed for April 19, 2024. (Id.) Plaintiffs state they received no response to this deposition notice and that Defendant did not serve any formal objection. (Mandel Decl. ¶ 4.) Nor did the deposition of Defendant’s PMK go forward. (Id.)

On May 15, 2024, Plaintiffs’ counsel sent a meet and confer letter to Defendant’s counsel. (Mandel Decl. ¶ 5, Exh. 2.) The body of this letter is reproduced below:

On March 7, 2024, our office served Defendant with a Notice of Deposition for Defendant’s Person Most Qualified with Production of Documents. This deposition was noticed for April 19, 2024. Defendant failed to serve objections to this deposition notice and it failed to appear at the noticed deposition.

I am reaching out to meet and confer regarding alternative dates for this deposition. Please provide dates by 5/29/24. To be clear, the deposition does not need to take place by that date, but two weeks should be a sufficient amount of time to provide an agreeable date and time for such deposition to occur. It is reasonable that we get a date for June or early July. We are agreeable to conducting the deposition in-person or via remote videoconference.

(Mandel Decl. Exh. 2.)

Defendant thereafter served its untimely response to Plaintiffs’ Notice of Deposition. The declaration of Plaintiffs’ counsel states that these responses were served on May 31, 2024. (Mandel Decl. ¶ 3.) Defendant’s declaration states they were served April 29, 2024. (Keshishian Decl. ¶ 3.) The court is unable to verify the correct date the responses were served because they are attached to neither Plaintiffs’ motion nor Defendant’s opposition. In any event, this response occurred well beyond the noticed deposition date.

On May 31, 2024, Defendant sent a meet and confer letter to Plaintiffs’ counsel, informing that they had served objections. (Mandel Decl. Exh. 3.) This letter also stated Defendant’s refusal to stipulate to the deposition and refusal to provide alternative dates until such time as Plaintiffs responded to Defendant’s objection. (Id.) The letter concluded that Plaintiffs’ threats to file a motion to compel deposition were detrimental to the meet and confer process, despite the fact that Plaintiffs’ made no such threat in their meet and confer correspondence. (Id.)

On June 3, 2024, Plaintiffs’ counsel responded to the meet and confer letter via email. (Mandel Decl. Exh. 4.) Plaintiffs’ counsel expressed confusion at Defendant’s claim that their objections were not reviewed. (Id.) The email states:

…we did, in fact, review Defendant's objections and we set forth our position on their insufficiency in our original meet and confer letter. Further, we agreed to withdraw category of examination number 4 in our meet and confer letter. As Defendant agreed to produce its witness to the other remaining categories, what scope still needs to be agreed upon?

From June 7, 2024 to October 18, 2024, Plaintiffs’ counsel reached out several times via email to confirm alternative dates but received no response. (Mandel Decl. ¶¶ 8-11, Exh. 4.)

Discussion

The Court finds Plaintiffs’ motion should be denied without prejudice for failure to meet and confer in good faith for the reasons set forth below.

A motion under C.C.P. § 2025.450 must be accompanied by a meet and confer declaration demonstrating that the moving party has made a reasonable and good faith attempt at an informal resolution of each issue presented in the motion, or, if the motion is based on the deponent's failure to attend the deposition and to produce documents, it must be accompanied by a declaration stating that the moving party has contacted the deponent to inquire about the nonappearance. (C.C.P. §§ 2025.450(b)(2), 2016.040.) The Court may deny a motion to compel discovery for lack of a reasonable and good faith attempt to meet and confer. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436-1439; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434-435.)

Here, Plaintiffs unilaterally noticed the deposition of Defendant’s PMK on March 7, 2024 and received no response until well after the noticed deposition date. Despite this, Plaintiff does not state whether arrangements for the deposition were made, or a nonappearance taken. Further, Plaintiffs’ counsel did not begin the meet and confer process until May 15, 2024. Plaintiffs provide no explanation for why they waited nearly a month after the missed deposition date to begin informally resolving this matter.

Further, Plaintiffs’ initial meet and confer letter contains no discussion of the substance of Defendant’s objections. This may be because Defendant had yet to serve any objections, but this cannot be known for sure because neither party attached the objections to their moving papers. The Court also notes that the content of these objections is not present in Plaintiffs’ separate statement, a violation of CRC Rule 3.1345(c)(2).

Plaintiffs’ failure to discuss the objections in the May 15 meet and confer letter does not comport with statements made by their counsel in the June 3 email. The June 3 email first states that Plaintiffs reviewed the objections and addressed them in their initial meet and confer letter. A review of the May 15 letter shows this is not the case. The email also states Plaintiffs withdrew category number four and Defendant’s thereafter agreed to produce their PMK. Again, none of this information appears in the May 15 letter. Either there is additional meet and confer correspondence the Court is not privy to, or the June 3 email is entirely mistaken. In any event, the result is that Plaintiffs have not demonstrated a good faith effort to resolve the issues before the Court prior to bringing this motion.  

Accordingly, the motion to compel the deposition of Defendant’s PMK is DENIED without prejudice. The parties are ordered to further meet and confer regarding the deposition in this case. If, after these efforts, Plaintiffs are still unable to take the deposition of Defendant’s PMK, the Court invites Plaintiffs to refile their 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 

Lee & Tiffany Nguyen’s Motion to Compel Deposition came on regularly for hearing on December 13, 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 THE DEPOSITION OF DEFENDANT’S PMK IS DENIED WITHOUT PREJUDICE.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 13, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles