Judge Kristin S. Escalante , Case Number: 22STCV26173, Date: 2023-05-11 Tentative Ruling

Judge: Kristin S. Escalante , Case: 22STCV26173, Date: 2023-05-11 Tentative Ruling

Case Number: 22STCV26173 Hearing Date: May 11, 2023 Dept: 24

The Motion for Sanctions In The Amount Of 1,800.00, Issue and or Evidentiary Sanctions Against Defendant General Motors LLC for its continuing misuse and abuse of the Discovery process and for failing to comply with this court's March 8, 2023, Order; ID: 874449029003 filed by Plaintiff Benjamin Manninen on 04/12/2023 is DENIED.

The parties are ordered to meet and confer regarding setting a date for the deposition of Defendant’s person most knowledgeable. The parties are ordered to file a joint statement with the court regarding the status of the deposition at least three days prior to the hearing.

Plaintiff Benjamin Manninen (“Plaintiff”) moves for an order imposing monetary, evidentiary, and/or issue sanctions against Defendant General Motors LLC (“Defendant) for abuse of the discovery process and failure to comply with the court’s March 8, 2023 minute order. (Notice of Mtn., at pp. 1-2.)

By way of background, on August 12, 2022, Plaintiff filed suit against Defendant for breach of warranty under the Song Beverly Consumer Warranty Act (“Song Beverly”) in connection with his purchase of a 2022 GMC Sierra (“subject vehicle’). Plaintiff then moved to compel the deposition of Defendant’s person most knowledgeable. The court granted the motion in part and ordered Defendant “to produce the PMKs for deposition at a mutually agreeable date within 30 days’ notice of this order.” (Minute Order, Mar. 8, 2023.)

Plaintiff’s motion is procedurally improper. Plaintiff motion is premised on failure to comply with the court’s discovery order. However, Plaintiff does not move under Code of Civil Procedure section 2025.450 subdivision (h) (“Section 2025.450”) to compel compliance and obtain sanctions. Section 2025.450 states [i]f that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . .against that party deponent or against the party with whom the deponent is affiliated.” Recent case law holds that “monetary discovery sanctions may be imposed under section 2023.030 only to the extent authorized by another provision of the Discovery Act. Section 2023.010 describes conduct that is a misuse of the discovery process but does not authorize the imposition of sanctions. Section 2023.010 describes conduct that is a misuse of the discovery process, but does not authorize the imposition of sanctions” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 475, review granted, Jan. 25, 2023) Instead, Plaintiff moves pursuant to other inapplicable code sections. (See Notice of Mtn. at p. 2; see also Code Civ. Proc., §§ 2023.010 [definitions], 128 [court’s general authority to compel obedience], 128.6 [repealed], and 177.6. [court’s authority to impose monetary sanctions for a person’s violation for a court order].) Plaintiff has not argued for sanctions under an applicable code section and explained why they are justified. Accordingly, the motion is denied. To the extent Plaintiff wishes to move for monetary, evidentiary, or issue sanctions under the applicable code section, Plaintiff may do so.

Assuming arguendo Plaintiff had moved under the appropriate code section the court addresses Plaintiff’s argument briefly. The conduct at issue here does not appear to merit issue or evidentiary sanctions. “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort . . .” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192, disapproved of on other grounds in Presbyterian Camp &Conference Centers, Inc v. Superior Court (2021) 12 Cal.5th 493, 516, fn. 17.) Where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules justify a court order imposing ultimate discovery sanctions. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Plaintiff’s evidence demonstrates that Defendant failed to comply with a single discovery order timely and has since offered up some—albeit insufficient—availability for the PMK deposition to take place. Nevertheless, monetary sanctions appear justified for Defendant’s failure to schedule and appear for the PMK deposition.

As to Defendant’s argument regarding timeliness, Defendant argues the motion is premature. Defendant cites to Plaintiff’s notice of ruling for the premise that the court ordered the deposition take place by April 13, 2023. The court’s March 8, 2023, minute order gave Defendant thirty days to produce its PMK. Thirty days’ notice of March 8, 2023, is April 7, 2023. Plaintiff’s notice of ruling was served on March 14, 2023. Implicitly, Defendant argues that the notice of ruling was the notice which the court referenced rather than the court’s posting of the minute order. Relying on the notice of ruling service date of March 14, 2023, Defendant would have had until April 13, 202. Under Defendant’s logic, Plaintiff’s motion was prematurely because it was filed on April 12, 2023. The court disagrees. By April 12, 2023, Plaintiff has sufficient facts—e.g. whether the deposition would take place within the court ordered time frame—to file the motion. The motion is not premature.

Moving party is directed to give notice.