Judge Kerry Bensinger, Case Number: 23STCV00240, Date: 2025-03-05 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO COMPEL DEPOSITION ATTENDANCE OF PERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS OF DEFENDANT AMERICAN HONDA MOTOR CO., INC. AND REQUEST FOR SANCTIONS

On January 5, 2023, Plaintiff, Esau Santeliz, filed this lemon law action against Defendant, American Honda Motors Co., Inc., alleging causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty, and (2) Fraudulent Inducement - Concealment.

On November 20, 2024, Plaintiff filed this motion to compel Defendant to produce a Person(s) Most Qualified (PMQ) and Custodian of Records for deposition. Plaintiff also requests sanctions against Defendants and its counsel of record.

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).)¿¿¿¿

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.)¿

There is no dispute that Plaintiff is entitled to take the deposition of Defendant’s PMQ. Plaintiff has attempted to do so since April 26, 2024, when it served on Defendant the first notice of deposition. However, to date, Defendant’s PMQ has not appeared for deposition and the parties have not agreed upon a deposition date. For this reason, Plaintiff seeks an order compelling Defendant to produce its PMQ by a date certain.

Defendant argues the motion should be denied because it hasn’t refused to produce its PMQ. Rather, Defendant contends scheduling issues have frustrated the completion of this discovery which Defendant attributes to the numerous lemon law cases Plaintiff’s counsel has brought against Defendant. If the court is inclined to order the PMQ deposition take place by a date certain, Defendant alternatively requests that the court order the deposition to take place within 60 days of the issuance of the order.

Given there is no dispute Plaintiff is entitled to take the deposition of Defendant’s PMQ and the PMQ has yet to appear for deposition, the court finds Plaintiff is likewise entitled to an order compelling the PMQ deposition. The deposition is to take place within 60 days of this order. The court now turns to the issue of sanctions.

Plaintiff requests sanctions against Defendant and its counsel. The court is sensitive to the scheduling challenges presented by the number of lemon law cases pending between opposing counsel. In email correspondence, Defense counsel noted that Plaintiff’s counsel’s law firm had 56 scheduled depositions between the date of correspondence (11/07/24) and the previous trial date (3/10/25). (Tran Decl., ¶ 10, Ex. A.) For this reason, the court finds it would be unjust to impose sanctions against Defendant or its counsel. Accordingly, the request for sanctions is DENIED.

Defendant is ordered to provide its person(s) most knowledgeable for deposition within 60 days of this order.

Kerry Bensinger

Judge of the Superior Court