Judge Kerry Bensinger, Case Number: 24STCV07437, Date: 2025-04-03 Tentative Ruling

DEFENDANT FORD MOTOR COMPANY’S MOTION TO COMPEL PLAINTIFF PAUL PRIAULX’S DEPOSITION

DEFENDANT FORD MOTOR COMPANY’S MOTION TO COMPEL PLAINTIFF YVONNE PRIAULX’S DEPOSITION

Plaintiffs Paul and Yvonne Priaulx (“Plaintiffs”) brings this Song-Beverly action against defendants Ford Motor Company (“Ford”) and Michael Steads Hilltop Ford.

On January 3, 2025, Ford filed these motions to compel Plaintiffs to appear for deposition. Ford requests sanctions against Plaintiffs and their counsel of record.

Because the arguments raised in support and in opposition to Ford’s motions are the same, the court addresses the motions together.

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.)¿¿

Ford seeks to compel Plaintiffs to appear for deposition. It is undisputed that Ford properly noticed Plaintiffs’ depositions on three occasions: August 22, October 3, and November 18, 2024. Plaintiffs objected to all three deposition notices. Ford made numerous requests for Plaintiffs’ availability, but Plaintiffs never responded. (See Moawad Decls.)

In their oppositions, Plaintiffs represent they are and have been willing to appear for deposition. Plaintiffs do not dispute, however, that they have yet to be deposed. Plaintiffs similarly admit that they failed to provide dates of availability after objecting to the deposition notices. Nevertheless, Plaintiffs argue the motions should be denied because (1) Plaintiffs served valid objections to the notices, (2) Ford did not meet and confer in good faith, and (3) Ford has not offered a date to depose its person(s) most knowledgeable (PMK).

The court is not persuaded by Plaintiffs’ arguments. First, even if Plaintiffs validly objected to the deposition notices, Ford has a right to take Plaintiffs’ depositions. Ford has made three attempts to schedule their depositions and requested Plaintiffs’ availability on numerous occasions. Plaintiffs admit in their oppositions that they have not provided their availability to counsel. Second, Ford has made numerous attempts to meet and confer. Plaintiffs’ contention appears to be that Ford did not meet and confer in good faith because Ford did not provide dates for its PMK deposition. Plaintiffs appear to make their availability of deposition contingent upon whether Ford makes their PMK available. Ford’s PMK deposition is not relevant to the scheduling of Plaintiffs’ depositions. Contrary to their position, Plaintiffs have not met and conferred in good faith. Ford is entitled to an order compelling Plaintiffs to appear for deposition.

Ford requests sanctions against Plaintiffs and their counsel of record. Given the court’s ruling, sanctions are warranted. Indeed, in the context of a motion to compel a party’s deposition, sanctions are mandatory. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Here, Plaintiffs’ counsel states diligent efforts have been made to obtain dates to depose both Plaintiffs. (See Smith Decls.) Plaintiffs’ counsel meet their burden to show they did not counsel discovery abuse.¿ Accordingly, sanctions are imposed against Plaintiffs in the amount of $1,120 ($560 per plaintiff).¿¿

Ford’s motions to compel are GRANTED. Plaintiffs Paul and Yvonne Priaulx are ordered to appear for deposition within 30 days of this order.

The request for sanctions is GRANTED. Sanctions are imposed against Plaintiffs Paul and Yvonne Priaulx in the sum of $1,120, to be paid to Defendant, by and through its counsel, within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court