Judge: Joel L. Lofton, Case: 23AHCV02404, Date: 2024-07-16 Tentative Ruling

Case Number: 23AHCV02404    Hearing Date: July 16, 2024    Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      July 16, 2024                                      TRIAL DATE: February 25, 2025

CASE:                         TEJ KISHOR NAIK v. AMERICAN HONDA MOTOR CO., INC., and DOES 1 through 10, inclusive.

CASE NO.:                 23AHCV02404

MOTION TO COMPEL DEPOSITION

MOVING PARTY:               Plaintiff Tej Kishor Naik

RESPONDING PARTY:      Defendant American Honda Motor Co., Inc.

SERVICE:                              Filed April 9, 2024

OPPOSITION:                       Filed April 18, 2024

REPLY:                                   Filed July 9, 2024

RELIEF REQUESTED

            Plaintiff moves for an order compelling Defendant to produce its person most qualified for deposition and to produce the documents requested, within 30 days.  Plaintiff also requests monetary sanctions in the amount of $3,150.00.

BACKGROUND

            This case arises out of Plaintiff’s lemon law claim for a 2020 Honda Odyssey Van with Vehicle Identification Number 5FNRL6H92LB068018 (“Subject Vehicle”).  Plaintiff filed this complaint on October 17, 2023.

TENTATIVE RULING

            Plaintiff Tej Kishor Naik’s Motion to Compel Deposition of Defendant American Honda Motor Co., Inc. is DENIED.  Plaintiff’s request for sanctions is also DENIED.

LEGAL STANDARD

Code of Civil Procedure section 2025.450, subdivision (a) provides:

“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.”

            The motion shall “(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) be accompanied by a meet and confer declaration under 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.”  (Code Civ. Proc. § 2025.450(b)(2).)

DISCUSSION

            Plaintiff moves for an order compelling the deposition testimony of Defendant’s person most qualified.  According to Plaintiff’s counsel, Isaac Agyeman, Plaintiff served a Notice of Deposition for AHM’s PMQ on November 21, 2023.  (Agyeman ¶ 6, Ex. A.)  On December 7, 2023, AHM served objections to the Notice.  (Ibid. at ¶ 7, Ex. B.)  In December 2023, Plaintiff initiated its meet and confer efforts and asked Defendant to provide available dates for the deposition; Defendant did not provide any dates.  (Ibid. at ¶ 8, Ex. C.)  On December 12, Plaintiff served a 1^st Amended Notice of Deposition on Defendant to produce its PMQ for a deposition.  (Ibid. at ¶ 9, Ex. D.)  The following day, Defendant informed Plaintiff that there would be a delay in producing the witness.  (Ibid. at ¶ 10, Ex. E.)  On January 3 and February 16, 2024, Plaintiff once again reached out to Defendant and asked for available dates, Defendant responded to the first communication promising to provide a date but did not respond to the second communication.  (Ibid. at ¶ 11, Ex. F.)  On March 6, 2024, Plaintiff served its 2^nd Amended Notice of Deposition, to which AHM responded with additional objections.  (Ibid. at ¶¶ 13, Exs. H-I.)  Plaintiff followed up with a voicemail and written correspondence attempting to meet and confer.  (Ibid. at ¶ 15, Ex. J.)  To date, AHM has refused to discuss its objections or provide any available dates for the deposition.  (Ibid.)

            Plaintiff requests monetary sanctions in the amount of $3,150.00 as follows: three hours for drafting the instant Motion, two hours in reviewing the opposition and drafting a reply, and an hour to attend the hearing, at a billing rate of $525 per hour.  (Ibid. at ¶ 18.)

            Plaintiff argues that the deposition is crucial to Plaintiff’s ability to prove his case.  Plaintiff has attempted to meet and confirm and cooperate with Defendant on several occasions, however, AHM has continued to refuse to produce a witness.  The matters Plaintiff seeks to uncover through the deposition and production of documents are “basic” and “benign” and “universally discoverable in lemon law cases.”  (Mot. pp. 9-10.)  Plaintiff is not seeking objectionable, overbroad, or privileged information.  Moreover, Plaintiff argues that good cause exists to compel the deposition and production of documents because the testimony topics and document requests “go to the essential elements of Plaintiff’s express and implied warranty and damages claims.”  (Mot. p. 14.)  Plaintiff has submitted a Separate Statement explaining why AHM should be deposed regarding all of the matters indicated and produce all of the documents requested in the Notice.  (See 4-12-24 Separate Statement.)

            AHM opposes the Motion, stating that it never refused to produce the witness requested, but rather informed Plaintiff that it is diligently attempting to obtain deposition dates.  Due to the volume of cases requesting depositions of its person most qualified, AHM has been unable to produce the witness in the timeframe noticed by Plaintiff.  Trial is currently set for February 25, 2025, and Plaintiff has served three notices within a very short timeframe without making a good faith effort to meet and confer, which has not provided AHM with enough time to produce a PMQ.  AHM continues to make a good faith effort to schedule the deposition and requests that the Court deny the Motion.  AHM also argues that the Motion should be denied because Plaintiff did not give proper notice, as the Motion was served electronically 16 court days before the May 1, 2024, hearing instead of 16 courts and two calendar days as required for electronic service.

            AHM states that the Motion should be denied pursuant to Code of Civil Procedure section 2025.450(a) because ADM has not failed to appear at a deposition without filing timely valid objections.  Sanctions should also be denied as AHM has acted with substantial justification in attempting to come up with a mutually convenient date for the deposition.  AHM has submitted the declaration of the attorney newly assigned to the case, Candie Chang, who states that she is actively working on securing an available date for the corporate witness.  (See Change Decl.)  Furthermore, AHM has filed a Separate Statement responding to Plaintiff’s arguments regarding each category of questions and documents requested.

            In its Reply, Plaintiff argues that notice was served timely as the hearing on the Motion was rescheduled to July 16, 2024.  Plaintiff reasserts that AHM has served baseless, boilerplate objections, failed to meet and confer in good faith, and to comply with its discovery obligations.  Prior to the hearing on this Motion, AHM informed Plaintiff that the earliest available deposition date is on November 8, 2024, which Plaintiff argues is too close to the trial date.  Thus, Plaintiff requests that the deposition be ordered to take place within thirty days.

            As a preliminary matter, the Court notes that due to the rescheduled hearing date of July 16, 2024, proper notice was given regarding the Motion.

The basis of Plaintiff’s Motion is that AHM has refused to provide its witness for deposition or to produce the requested documents.  Based on the Motion and the Opposition, the Court finds that AHM has served timely objections and is continuing to attempt to secure a convenient date for the deposition of its PMQ.  The Court does not find that AHM has refused to attend the deposition and failed to produce the documents requested.

If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc. section 2025.480, subd. (a).)  “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.”  (Code Civ. Proc. section 2025.480, subd. (i).)

            Because no deposition has occurred yet and Defendant has filed a sworn declaration of its counsel indicating that diligent efforts are being made to secure a mutually convenient deposition date, an order on the specific categories is premature.

            Moreover, as the Motion is denied, Plaintiff’s request for sanctions is also denied.

CONCLUSION

            Plaintiff Tej Kishor Naik’s Motion to Compel Deposition of Defendant American Honda Motor Co., Inc. is DENIED.  Plaintiff’s request for sanctions is also DENIED.

            Moving Party to give notice.

Dated:   July 16, 2024                                     ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org