Judge: Lee W. Tsao, Case: 22NWCV00700, Date: 2023-08-24 Tentative Ruling
Case Number: 22NWCV00700 Hearing Date: December 19, 2023 Dept: C
Adrian Barajas, et al. vs. American Honda Motor Co., Inc.
Case No.: 22NWCV00700
Hearing Date: 12/19/23 @ 10:30 a.m.
#8
Tentative Ruling
Defendant American Honda Motor Co., Inc.’s Motions to Compel Deposition of Plaintiffs JOAQUIN BARAJAS and ADRIAN BARAJAS are GRANTED.
Plaintiff Adrian Barajas is ordered to appear for deposition on February 6, 2024 and Plaintiff Joaquin Barajas is ordered to appear for deposition on February 15, 2024.
The Court awards combined sanctions in the reduced amount of $1,735.00.
Moving party to give notice.
Background
This is a lemon law action.
Defendant American Honda Motor Co., Inc. (“AHM”) first noticed the deposition of Plaintiffs JOAQUIN BARAJAS and ADRIAN BARAJAS (“Plaintiffs”) on October 4, 2022. (Redfern Decl. at ¶ 3, Ex. A.) Plaintiffs served objections to both depositions on November 23, 2022. (Redfern Decl. at ¶ 4, Ex. B.) Plaintiffs’ objections indicated they would meet and confer with AHM to select mutually convenient dates for Plaintiffs depositions. (Id.) On November 23, 2022, AHM sent a meet and confer correspondence to Plaintiffs’ counsel requesting alternate available dates for Plaintiffs depositions. (Id. at ¶ 5, Ex. C.) Plaintiffs did not respond. (Id. at ¶ 6, Ex. C.) On December 13, 2022, AHM sent a follow up email again requesting dates for Plaintiffs’ depositions. (Id. at ¶ 7, Ex. C.) Plaintiffs provided a range of dates and the parties agreed upon March 29, 2023 for Plaintiffs’ depositions. (Id. at ¶ 8, Ex. C.)
On December 13, 2022, AHM sent an amended notice of deposition for the agreed upon date of March 29, 2023. (Id. at ¶ 9, Ex. D.) Plaintiffs never served objections. (Id. at ¶ 9.) On March 28, 2023, Plaintiffs emailed AHM indicating that the depositions were off calendar and would need to be rescheduled. (Id. at ¶ 10, Ex. C.) Plaintiffs did not provide a reason why they would not appear for deposition—they merely stated “Our office will attempt to obtain further dates of availability in order to reschedule their respective depositions once more.” (Id. at ¶ 10, Ex. C.) Plaintiffs never sent AHM available dates for deposition. (Id. at ¶ 11.) As AHM had already secured a court reporter for the agreed upon depositions on March 29, 2023, AHM took a notice of non-appearance for both Plaintiffs ADRIAN BARAJAS and JOAQUIN BARAJAS in order to preserve their rights. (6. at ¶¶ 12-13, Ex. E, F, G.) On August 15, 2023, AHM sent an email correspondence to Plaintiffs’ counsel again requesting available dates for Plaintiffs depositions and advising that AHM would file a Motion to Compel and seek sanctions should Plaintiffs fail to respond. (Id. at ¶ 15, Ex. C.)
AHM brings the instant motion to request an order to compel Plaintiffs to appear for deposition, respond to the corresponding request for production of documents, and impose sanctions on each Plaintiff in the amount of $1,925.
Legal Standard
CCP¿section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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 . . . 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 . . . described in the deposition notice.”¿ (Code Civ. Proc., § 2025.450(a).)¿
CCP section 2025.410(a) provides: “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”¿¿(Code Civ. Proc., § 2025.410(a).)¿
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CCP¿section¿2025.450(b) provides:¿“A motion under subdivision (a) shall comply with both of the following:¿¿
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1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿¿
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2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, y a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿¿
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(Id., § 2025.450(b).)¿
Discussion
Here, Defendant shows that on March 28, 2023, Plaintiffs emailed AHM indicating that the depositions were off calendar and would need to be rescheduled. (Id. at ¶ 10, Ex. C.) Plaintiffs did not provide a reason why they would not appear for deposition—they merely stated “Our office will attempt to obtain further dates of availability in order to reschedule their respective depositions once more.” (Id. at ¶ 10, Ex. C.)
In opposition, Plaintiffs do not disagree that they failed to appear for the previously scheduled deposition. However, Plaintiffs state that on December 6, 2023, the parties confirmed both depositions of Plaintiffs Adrian Barajas and Joaquin Barajas for February 6, 2024, and February 15, 2024, respectively. (Tran Decl.” ¶ 4, Ex. 1) Plaintiffs contend Defendant’s Motion is now moot.
Because the depositions have not yet occurred, Defendant’s Motions to Compel Deposition are GRANTED. Plaintiff Adrian Barajas is ordered to appear for deposition on February 6, 2024 and Plaintiff Joaquin Barajas is ordered to appear for deposition on February 15, 2024.
Sanctions
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CCP¿section¿2025.450(c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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.”¿ (Id., § 2025.450(c).)¿
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CCP section 2023.030(a) provides that¿“[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . .¿If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the¿sanction unjust.”¿¿Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Id.,¿§ 2023.010(d).)¿
In determining sanctions, the Court notes that Plaintiffs offer no explanation for their failure to appear at the agreed upon March 29, 2023 depositions. Sanctions are warranted and appropriate here. Defendant requests sanctions in the amount of $1,925.00 for each Plaintiff based upon 1.5 hours preparing each motion and 3 hours analyzing each opposition, preparing a reply brief, and attending the hearing, at a rate of $250 per hour, plus a $60 filing fee. Additionally, AHM incurred $740 to secure a court reporter for the agreed upon deposition date and take a notice of non-appearance due to Plaintiffs’ failure to appear.
Given the fact that Plaintiffs were to initially appear on the same day, the similarity of the motions to each other, and the brevity of the opposition and reply, the Court finds the request excessive. The Court instead awards sanctions in the amount of $875.00 (2 hours preparing both motions, a half hour analyzing the opposition, a half hour preparing reply briefs, and a half hour attending the hearing at a rate of $250.00 per hour.) Additionally, the Court awards one fee of $740.00 spent in securing a court report for the initial deposition and to take notice of the non-appearance. The Court also awards the filing fees of $60.00 for each motion.
Accordingly, the Court awards combined sanctions in the reduced amount of $1,735.00 payable by Plaintiffs and Plaintiffs’ counsel, jointly and severally, within 30 days.
Plaintiffs' Ex Parte Application to Advance Plaintiffs' Motion for
Sanctions is GRANTED. Plaintiffs' Motion for Sanctions is ADVANCED from
Wednesday, July 3, 2024 to this date and CONTINUED to Wednesday,
March 20, 2024 at 10:30 a.m. in Dept. SE-C. The request to specially set
the Motion for Sanctions is rendered MOOT. Moving Party to give
notice.