Judge Kevin C. Brazile, Case Number: 23STCV00366, Date: 2023-10-18 Tentative Ruling

TENTATIVE RULINGS

SUBMISSION INSTRUCTIONS

STANLEY MOSK COURTHOUSE, DEPARTMENT 20 - JUDGE KEVIN C. BRAZILE

Counsel may submit on the tentative ruling without appearing at the hearing by emailing Dept. 20 as soon as possible after reviewing a posted tentative. Though the Court makes every effort to post tentatives at least a day ahead of the hearing, this cannot be guaranteed due to the volume of motions. The email address is smcdept20@lacourt.org. In the subject line include:

1) The name and number of the case;
2) The word "SUBMITTING" or “NOT SUBMITTING” in all caps; and
3) The date of hearing.

In the body of the email include your name, contact information, and the party you represent (i.e. Defendant/moving party; Plaintiff/opposing party). Include all other parties on the email by "cc". Do not include any comments, questions or other information on your email.

PLEASE DO NOT call the court to submit on the tentative or to confirm receipt of your email. If you follow the instructions above, you will receive an automatic reply to your email confirming receipt of your email. If all parties submit, the tentative ruling will become the final ruling after the hearing date, the court will sign applicable orders/judgments, if any, and the final ruling will be posted online with the minute order. The moving party shall give notice of the final ruling.

If you submit on the tentative, you must immediately notify the other side by 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 motion.

Tentative rulings are not invitations nor opportunities, to file further documents relative to the hearing in question. No such document will be considered by the Court.

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RULES ON USING EMAIL THE COURT

No ex-parte communications via email. Always copy all parties in all emails to Court.

Do not use email to file documents in Court. All documents must be filed in the Clerk’s office. Emails are not part of the official Court record. Do not use the email for any other purpose other than submitting/not submitting on tentative rulings or as ordered by the Court. Do not "cc" the Court on emails among the attorneys, parties or others. Do not use the email to ask questions regarding a case. For frequently asked questions go to the Court Information for Department 20 at www.lacourt.org.
The Court will not respond to inappropriate emails.

WARNING: Inappropriate use or misuse of the Court’s email or violation of these or other rules may result in sanctions, including blocking receipt of emails by that sender, after the first misuse/violation.

Ruling: The Motion for Sanctions in GRANTED IN PART. Plaintiff is entitled to monetary sanctions in the reduced amount of $1,200.00.

This is a lemon law action. On August 18, 2023, Plaintiff Miguel Hernandez filed the Second Amended Complaint (“SAC”) against Defendant General Motors LLC for (1) fraudulent concealment, (2) breach of express warranty under Commercial Code § 2-313, (3) violation of the Magnuson-Moss Warranty Act, and (4) violation of Civil Code § 1750 et seq. A demurrer to the SAC was sustained on October 18, 2023.

On November 15, 2023, the Court granted in part Plaintiff’s motion to compel PMK deposition. The Court ordered the deposition to take place within 30 days.

Plaintiff seeks monetary, issue, and/or evidentiary sanctions against Defendant for its continuing and willful failure to comply with the November 15, 2024 Court Order to produce its PMK within 30 days after the hearing date.

The Court may, after notice to any affected party, person, or attorney and after opportunity for hearing, may impose monetary, issue, evidence, or terminating sanctions against anyone engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030, subds. (a)-(d).) Conduct subject to sanctions includes, but is not limited to, persisting over objection and without substantial justification in an attempt to obtain information or materials that are outside the scope of permissible discovery, using a discovery method in a manner that does not comply with its specified purpose, failing to respond or to submit to an authorized method of discovery, or making an evasive response to discovery. (Code Civ. Proc., § 2023.010, subds. (a), (b), (d), (f).) The purpose of discovery sanctions is not to punish. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid.)

“Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal¿(1989) 212 Cal.App.3d 96, 118-119 citing¿Deyo¿v.¿Kilbourne¿(1978) 84 Cal.App.3d 771, 793;¿Newland v. Superior Court¿(1995) 40 Cal.App.4th 608, 613.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct.¿(2008) 168 Cal.App.4th 1403, 1428.) “The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ (Citation.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co.¿(1977) 66 Cal.App.3d 250, 252- 253.)

It is undisputed that Defendant did not schedule a deposition within 30 days of the November 15, 2023 order. In fact, it appears that Defendant has not scheduled a deposition of its PMK to date. Defendant asserts that it offered nine different deposition dates to Plaintiff’s council which were not accepted. Defendant offered its first date on December 28, 2023, which was after the 30 day deadline. Defendant only offered one date of January 18, 2024. Subsequently, Defendant offered only one date each time it proposed a date. For example, on January 2, 2024, Defendant offered January 4, 2024; on January 4, 2024, Defendant offered January 25, 2024; etc. (Pappas Decl. ¶ 5.) Plaintiff also asserts that Defendant falsely claims it offered dates for the PMK deposition when it simultaneously offers several cases. For example, Plaintiff provides evidence that Defendant offered two dates of availability for 17 different cases. This is shown in an attached exhibit of an email sent by Defendant’s counsel. (Reply, Exhib. 2.)

The Court finds that Plaintiff is entitled to monetary sanctions because Defendant failed to offer dates for deposition of its PMK within 30 days of the November 15, 2023 order, and Defendant’s tactic of offering only one or two dates for multiple plaintiffs demonstrates a lack of good faith. This is sufficient to constitute discovery abuse and Defendant provides no evidence to show that it was substantially justified in its actions. However, the Court finds that issue and/or evidentiary sanctions are not warranted because Defendant has reached out to Plaintiff and attempted to schedule a deposition. Monetary sanctions are sufficient to curb the discovery abuse.

Plaintiff requests $2,067.85 in total monetary sanctions, consisting of 7 hours of anticipated work (4 hours motion, 3 hours to review opposition and reply and to attend hearing) at $285 per hour. Plaintiff also requests the motion e-filing fee of $72.85. The Court reduces the request to $1,200.00, which it finds to be reasonable.

The Motion for Sanctions is GRANTED IN PART. Plaintiff is entitled to monetary sanctions in the amount of $1,200.00.