Judge Holly J. Fujie, Case 21STCV00971 2022-12-29 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendants Ford Motor Company and McCoy and Mills Ford (collectively, “Moving Defendants”)

This action arises out of the lease of an allegedly defective vehicle. The currently operative second amended complaint (the “SAC”) alleges various violations of the Song-Beverly Act, fraud by omission, and negligent repair.

On November 7, 2022, Moving Defendants filed a motion to compel Plaintiff’s deposition (the “Motion”) and for monetary sanctions.

Under California Code of Civil Procedure (“CCP”) section 2025.450, where a deponent fails to attend a deposition and produce documents, an opposing party can ask the court to order the deponent’s attendance and testimony at a deposition, as well the production of the documents specified in the deposition notice. The motion must include: (1) facts showing good cause justifying the production of documents; and (2) where a deponent fails to attend the deposition and produce the documents, a declaration must accompany the motion indicating that the party seeking the order to compel contacted the deponent to inquire about the deponent’s nonappearance. (CCP § 2025.450, subd. (b)(1)-(2).)

Plaintiff’s deposition was originally noticed to occur on October 19, 2022. (Declaration of Teresa C. Alcarón (“Alcarón Decl.”), Exhibit A.) On October 14, 2022, Plaintiff served an objection on the basis that he was unable to appear for a deposition on the noticed date. (Alcarón Decl. ¶ 4, Exhibit B.) Although Moving Defendants requested another deposition date, Plaintiff did not provide alternative dates. (See Alcarón Decl. ¶¶ 5-7.) Plaintiff further objected to a second deposition date noticed to occur on October 31, 2022, to which Plaintiff also objected. (Alcarón Decl. § 6, Exhibits D-E.) The Motion argues that Plaintiff’s failure to communicate suitable dates for his deposition prejudiced Moving Defendants’ ability to meet statutory deadlines for filing a motion for summary judgment.

When the Motion was filed, the deadline for Moving Defendants to file a motion for summary judgment was December 23, 2022. On December 14, 2022, however, by stipulation of Plaintiff and Moving Defendants, the trial was continued until September 18, 2023. Plaintiff provides evidence that he has been attempting to coordinate a suitable date in early January 2023 for his deposition to occur. (See Declaration of Daniel Law (“Law Decl.”) ¶ 5.)

Due to the ongoing efforts to coordinate Plaintiff’s deposition, the Court DENIES the Motion without prejudice. Moving Defendants are not precluded from filing another motion to compel should Plaintiff fail to appear for a deposition in January 2023. In light of this ruling, Moving Defendants’ request for monetary sanctions is also denied.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court