Judge: Lee W. Tsao, Case: 22NWCV00801, Date: 2023-10-17 Tentative Ruling

Case Number: 22NWCV00801    Hearing Date: October 17, 2023    Dept: C

LUGO, ET AL. v. AMERICAN HONDA MOTOR CO., INC.

CASE NO.:  22NWCV00801

HEARING:  10/17/23

#7

TENTATIVE RULING

I.             Plaintiff MARIA LUGO and FRED VELAZQUEZ’s motion to compel deposition attendance and production of documents by Defendant AMERICAN HONDA MOTOR CO., INC.’s (Defendant) person most knowledgeable (PMK) is DENIED without prejudice.

II.            Defendant AMERICAN HONDA MOTOR CO., INC.’s request for monetary sanctions is DENIED. 

Moving party to give notice.

This breach of warranty action was filed by Plaintiff MARIA LUGO and FRED VELAZQUEZ (Plaintiffs) on September 8, 2022. Plaintiffs’ complaint assert the following causes of action: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act Section 1793.2(b). 

Plaintiffs’ move to compel deposition attendance and production of documents by Defendant AMERICAN HONDA MOTOR CO., INC.’s (Defendant) person most knowledgeable (PMK).

Plaintiffs’ motion to compel deposition attendance and production of documents:

The Code of Civil Procedure (CCP) provides, in pertinent part, “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, 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.” (CCP § 2025.450(a).)  

“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.” (CCP § 2025.450(b)(1).)  The motion shall be accompanied by a meet and confer declaration stating facts that show a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (CCP § 2025.450(b)(2).)

Meet and Confer

Here, Plaintiffs’ provided a declaration from their counsel of record, Sepehr Daghighian (Daghighian) concerning their meet and confer efforts. Daghighian avers that attached to Plaintiffs’ deposition notice served on Defendant was a letter, which requested that if the Defendant was unable to attend the February 18, 2023 deposition date, for Defendant to provide three alternative dates for deposition. (Daghighian Decl., ¶ 13, Exh. C.) Daghighian avers that ignored the attached letter and sent improper boilerplate objections to the deposition notice. (Id. at ¶ 14, Exh. D.) Daghighian states that on April 7, 2023, Plaintiffs’ sent a meet and confer letter urging Defendant to respond by April 14, 2023 with certain dates for the deposition but Defendant did not respond. (Id. at ¶ 15, Exh. E.) Daghighian further avers that on April 28, 2023, Plaintiffs’ sent another meet and confer letter to obtain new deposition dates. (Id. at ¶ 16, Exh. F.) Daghighian states that as of the filing of this instant motion, Defendant has refused to produce its PMK for deposition at the noticed time and place or provide alternative deposition dates within a reasonable timeframe. (Id. at ¶ 17.) Therefore, the Court finds that Plaintiffs’ meet and confer efforts are sufficient per CCP § 2025.450(b)(2) and shall consider the motion on the merits.

Merits

Here, Plaintiffs’ move to compel Defendant to produce its person(s) most knowledgeable (PMK) and custodian of records to be deposed.

Plaintiffs’ argue that they properly and timely served a Notice of Deposition of Defendant’s PMK and Custodian of records (Daghighian Decl., ¶¶ 8; 10, Exh. B.) Furthermore, Plaintiffs’ argue that Defendant refuses to produce a PMK as to any of the matters specified in the deposition notice. (Id. at ¶ 12.) As discussed above, Plaintiffs’ attempted to meet and confer with Defendant to schedule a new deposition date. Moreover, Plaintiffs’ argue that good cause exists to compel the deposition of Defendant’s PMK and production of documents because the information sought are reasonably calculated to lead to evidence that will likely indicate Defendant stalled and frustrated Plaintiffs’ attempts to obtain relief under the Song-Beverly Act. Plaintiffs’ also argue that Defendant has not asserted any specific injustice created by the scope of Plaintiffs’ categories for examination just blanket objections that do not stay a deposition.

By contrast, Defendant argues that it offered Plaintiffs’ a deposition of November 10, 2023 but Plaintiffs’ refused stating that the date was too far out. (Anim-Appiah Decl., ¶¶ 10-12, Exh. E-F.) Defendant further argues that it offered August 16, 2023 as the new deposition date and Plaintiffs’ chose to use that date for another case. (Id. at ¶ 14, Exh. G.) Defendant also argues that the November 10, 2023 is now three weeks out from the hearing date on this present motion and asked Plaintiffs’ to withdraw the motion but it was not done. (Id. at ¶ 18, Exh. J.) Moreover, Defendant asserts that it had several conversations with Plaintiffs’ counsel concerning Defendant’s PMK deposition calendar and current backlog that is causing scheduling issues. (Id. at ¶ 5.) Defendant contends that Plaintiffs’ want an earlier date than can be provided at this time and there will be no prejudice to Plaintiffs to wait to take the deposition. (Id. at ¶ 13, Exh. G.)

On the other hand, Plaintiffs’ argue that a nine-month delay for a PMK deposition is unreasonable. Plaintiffs’ also assert that the November 10, 2023 date was offered nearly seven months out and just weeks before trial that is set for January 18, 2024. Further, Plaintiffs’ contend that they accepted the August 16, 2023 date in the Miller v. AHM case as offered to prevent the Millers from being bumped down the deposition schedule. Additionally, Plaintiffs’ argue that this motion was filed more than four months after serving their PMK deposition notice and more than nine months after filing suit because only two deposition dates were being offered, November 10, 2023 or November 17, 2023. Lastly, Plaintiffs’ argue that Defendant’s volume of lemon law cases and resulting scheduling issues are not valid reasons for delaying a PMK deposition for nine months.

Therefore, the Court finds that Plaintiffs’ motion to compel deposition attendance and production of documents by Defendant’s PMK is not warranted under law. Although Plaintiffs’ provided sufficient evidence that Defendant was properly served with the deposition notice, Defendant timely served on Plaintiffs’ a valid objection to the deposition notice more than three calendar days before the deposition was scheduled to take place and indicated Defendant would not appear.

Accordingly, Plaintiff MARIA LUGO and FRED VELAZQUEZ’s motion to compel deposition attendance and production of documents by Defendant AMERICAN HONDA MOTOR CO., INC.’s (Defendant) person most knowledgeable (PMK) is denied.

          Defendant’s request for sanctions

CCP § 2023.010 provides, in pertinent part, “Misuses of the discovery process include, but are not limited to…making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.”

CCP § 2025.450 provides, in pertinent part, “If a motion under 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.” (CCP § 2025.450(g)(1).)

Here, Plaintiffs’ motion was denied and only Defendant’s requested monetary sanctions in the amount of $2,601.00. Defendant’s counsel avers that he spent (1) 8.2 hours reviewing Plaintiffs’ motion and preparing opposing papers; and (2) anticipates 2.0 hours reviewing a reply brief and attending the hearing on the motion at an hourly rate of $255.00 for a total of 10.2 hours. However, Plaintiffs’ acted with substantial justification in bringing forth this motion because no new deposition date has been scheduled and the trial is only a few months away. Therefore, imposing sanctions against Plaintiffs’ would be unjust at this time.

Accordingly, Defendant AMERICAN HONDA MOTOR CO., INC.’s request for monetary sanctions is denied.