Judge: Holly J. Fujie, Case: 21STCV22886, Date: 2023-09-20 Tentative Ruling

Case Number: 21STCV22886    Hearing Date: September 20, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Subaru of America, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has reviewed the moving and opposition papers.  The Court exercises its discretion and has considered the opposition papers despite Plaintiff’s failure to comply with the requirements of California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

This action arises out of the purchase of an allegedly defective vehicle (the “Vehicle”) that was manufactured by Moving Defendant.  Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of the Song-Beverly Act – breach of express warranty; (2) violation of Song Beverly Act – breach of implied warranty; and (3) violation of Civil Code section 1793.2.

On July 12, 2023, Moving Defendant filed: (1) a motion to compel Plaintiff’s deposition (the “Chavez Motion”); and (2) a motion to compel non-party Hector Arias’s deposition (the “Arias Motion”).  On August 1, 2023, Moving Defendant filed a motion to compel vehicle inspection (the “Inspection Motion”).[1]

DISCUSSION

Under CCP section 2025.450, 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, without having served a valid objection, 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.  (CCP § 2025.450, subd. (a).)  The motion must both: (1) set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice; and (2) include a meet and confer declaration pursuant to CCP section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  (CCP § 2025.450, subd. (b)(1)-(2); see Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124 (the statute also applies when the deponent simply fails to appear).)

Where there has been no timely response to a demand for inspection, copying, testing or sampling, the demanding party may seek an order compelling a response.  (CCP § 2031.300, subd. (b).)  Failure to timely respond waives all objections, including privilege and work product.  (CCP § 2031.300, subd. (a).)  

Plaintiff’s oppositions (collectively, the “Oppositions”) do not dispute the information presented in the Motions regarding Moving Defendant’s attempts to depose Plaintiff and Chavez and inspect the Vehicle.  Plaintiff presents evidence that the failure to timely file the Oppositions was due to a calendaring error.  (See Chavez Opposition Declaration of Joshua Kohanoff (“Kohanoff Decl.”) ¶¶ 14-16.)  Plaintiffs also present evidence that they have offered dates for the depositions and for the Vehicle inspection to proceed.  (See Chavez Kohanoff Decl. ¶ 19, Inspection Kohanoff Decl. ¶ 13.)

            While the Court acknowledges that Plaintiff’s counsel is now participating in the discovery process, the Oppositions do not refute the Moving Defendant’s evidence regarding the circumstances that necessitated the Motions.  The Court therefore GRANTS the Motions.  The depositions of Plaintiff and Chavez and the inspection of the Vehicle are to occur within 30 days of the date of this order.  

Monetary Sanctions

            The Motions also request monetary sanctions against Plaintiff and counsel.  Moving Defendant seeks $2,796.50 in connection with the Arias Motion, $3,571.50 in connection with the Chavez Motion, and $1,810 in connection with the Inspection Motion. 

The Arias Motion sanctions represent: (1) seven hours drafting the moving papers at a rate of $250 an hour; (2) an anticipated one hour drafting reply papers and one hour appearing at the hearing; and (3) $60 in filing fees.  (Declaration of Alexander S. Rynerson (“Rynerson Decl.”) ¶ 17.)

The Chavez Motion sanctions represent: (1) seven hours drafting the moving papers at a rate of $250 an hour; (2) an anticipated one hour drafting reply papers and one hour appearing at the hearing;(3) $1,261.50 in fees related to Plaintiff’s failure to timely serve objections and appear at his deposition; and (4) $60 in filing fees.  (Chavez Motion Rynerson Decl. ¶ 26.)

The Inspection Motion sanctions represent: (1) five hours drafting the moving papers at a rate of $250 per hour; (2) an anticipated one hour drafting reply papers and one hour appearing at the hearing; and (3) $60 in filing fees.  (Inspection Motion Rynerson Decl. ¶ 19.)

The Court exercises its discretion and awards Moving Defendant sanctions in the total reasonable amount of $3,941.50, which represents 10 hours drafting the Motions collectively at a rate of $250 per hour, $180 in filing fees, and $1,261.50 in deposition costs.  (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)  Plaintiff and counsel are ordered to pay this amount within 20 days of this order.

             Moving party is ordered to give notice of this ruling.

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.

       Dated this 20th day of September 2023