Judge Kerry Bensinger, Case Number: 22STCV18698, Date: 2024-12-03 Tentative Ruling

This is a lemon law case. On September 10, 2024, defendant Ford Motor Company (FMC) filed this motion to compel plaintiff Darrell C. Davis (Plaintiff) to appear for deposition. FMC seeks sanctions against Plaintiff.

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…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.” (Code Civ. Proc., § 2025.450, subd. (a).)

In any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship, the length of the deposition examination is not limited to seven hours of total testimony. (Code Civ. Proc., § 2025.290, subd. (b)(4).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] 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.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

FMC seeks an order compelling Plaintiff to appear for deposition. In support, FMC states having served Plaintiff with four deposition notices. The first notice was served on October 26, 2023. Plaintiff objected due to unavailability. No alternative dates were provided. The second (amended) notice was served on May 9, 2024. Plaintiff’s deposition was noticed for August 23, 2024. However, given that trial was scheduled for December 2, 2024, FMC attempted to meet and confer with Plaintiff’s counsel regarding an agreeable date to complete the deposition sooner. Plaintiff’s counsel indicated a date would be provided soon but did not provide a date.

FMC withdrew the amended notice and served a second amended notice on June 25, 2024. Plaintiff’s deposition was noticed for July 8, 2024. FMC again requested that Plaintiff provide alternative dates. Plaintiff’s counsel provided July 23, 2024 as an agreeable date. Accordingly, FMC withdrew the second amended notice and served the third amended notice reflecting the July 23, 2024 date. However, despite providing the July 23, 2024 date, Plaintiff objected to the third amended notice due to a scheduling conflict. (See Amin Decl., ¶¶ 2-7, Exs. A-I.) Plaintiff has not appeared for deposition. This motion followed.

Plaintiff opposes the motion on the grounds because (1) FMC did not meet and confer prior to filing this motion, and (2) to date, FMC has not produced its personal most qualified (PMQ) for deposition or provided a date for the same. Plaintiff further represents the motion is unnecessary because he has always been willing to be deposed.

Plaintiff’s arguments are not well-taken. As detailed in defense counsel’s declaration, FMC has attempted to schedule Plaintiff’s deposition since October of 2023. In that time period, FMC met and conferred with Plaintiff’s counsel about mutually agreeable dates. Plaintiff eventually provided a date only to object to the deposition based on a scheduling conflict. Given this background, a motion to compel is necessary. As to FMC’s alleged unwillingness to produce its PMQ for deposition, that is not grounds to oppose a motion to compel Plaintiff to appear for deposition.

Given FMC’s undisputed efforts to take Plaintiff’s deposition, the court finds good cause to compel Plaintiff to appear for his deposition.

FMC request sanctions against Plaintiff. In the context of a motion to compel a party’s deposition, sanctions are mandatory, 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.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿

Here, the court finds imposition of sanctions is warranted. FMC noticed Plaintiff’s deposition on four occasions, dating back to October of 2023. To date, Plaintiff has not appeared for deposition. Accordingly, the court imposes sanctions against Plaintiff in the requested sum of $560.

The motion is GRANTED. Plaintiff Darrell C. Davis is ordered to appear for deposition prior to March 3, 2025.

The request for sanctions is GRANTED. Sanctions are imposed against Plaintiff in the sum of $560, to be paid to Defendant prior to March 3, 2025.

Kerry Bensinger

Judge of the Superior Court