Judge Lee W. Tsao, Case Number: 22NWCV01281, Date: 2023-08-31 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01281, Date: 2023-08-31 Tentative Ruling

Case Number: 22NWCV01281 Hearing Date: February 6, 2024 Dept: C

Emigdio Andujo Nevarez vs Cerritos Ford, Inc., et. al

Case No.: 22NWCV01281

Hearing Date: February 06, 2024 @ 10:30 AM

Tentative Ruling

Defendant Cerritos Ford, Inc.’s Motion to Compel Deposition is GRANTED.

Prevailing party to give notice.

Background

Plaintiff Emigdio Andujo Nevarez filed suit against Ford Motor Company (“Ford”) for alleged violations of the Song-Beverly Act and against Cerritos Ford, Inc. for negligent repair. Since December 14, 2022, Ford set Plaintiff’s deposition six times. A year later, Plaintiff still has not appeared for his deposition. Despite Ford’s multiple attempts to obtain this essential discovery, Plaintiff has failed to appear for his properly noticed deposition.

On December 14, 2022, Ford sent Plaintiff a meet and confer requesting dates for Plaintiff’s deposition. (Exhibit “A”; Declaration of Ravi K. Lally {“Lally Decl.”} ¿ 2.) After hearing no response from Plaintiff, Ford set Plaintiff’s deposition for January 11, 2023. (Exhibit “B”; Lally Decl. ¿ 2.). On December 28, 2022, Plaintiff objected to Ford’s Notice of Taking Plaintiff’s Deposition claiming that the deposition was unilaterally set. (Lally Decl. ¿ 2.). After receiving the objection, Ford contacted Plaintiff on December 28, 2022, and requested alternative deposition dates. (Lally Decl. ¿ 2.). No response was received from Plaintiff. (Lally Decl. ¿ 2.). On January 11, 2023, Ford again followed up with Plaintiff requesting dates for his deposition. (Exhibit “C”; Lally Decl. ¿ 2.).

On January 18, 2023, Plaintiff advised he would be available to be deposed on February 23, 2023, March 2, 2023, or March 9, 2023. (Lally Decl. ¿ 3.). Ford agreed to take Plaintiff’s deposition on March 9, 2023. (Exhibit “D”; Lally Decl. ¿ 3.). On February 28, 2023, Plaintiff advised that he would no longer be available to be deposed on March 9, 2023, a date that he provided. (Exhibit “E”; Lally Decl. ¿ 3.). No alternative deposition dates were provided. (Lally Decl. ¿ 3.). On March 21, 2023, Ford served a Second Amended Notice of Taking Plaintiff’s Deposition and set the deposition for May 16, 2023. (Exhibit “F”; Lally Decl. ¿ 4.).

On May 15, 2023, Plaintiff served an untimely objection to Ford’s Second Amended Notice of Taking Plaintiff’s Deposition, claiming it was unilaterally set. (Lally Decl. ¿ 4.). Upon receipt of the Objection, on May 15, 2023, Ford sent a meet and confer correspondence requesting dates for Plaintiff’s deposition. (Exhibit “F”; Lally Decl. ¿ 4.). On May 15, 2023, Plaintiff responded that he was available to be deposed on June 27, 2023, July 6, 2023, and July 13, 2023. (Lally Decl. ¿ 5.). At Plaintiff’s request, Plaintiff’s deposition was scheduled for June 27, 2023. (Exhibit “H”; Lally Decl. ¿ 5.).

On June 20, 2023, Plaintiff advised that he would no longer proceed with his deposition on June 27, 2023. (Lally Decl. ¿ 5.). No explanation was provided regarding why Plaintiff was failing to appear for a second time on a date that he provided. (Lally Decl. ¿ 5.). No alternative deposition dates were provided. (Lally Decl. ¿ 5.). On June 26, 2023, Ford served a Fourth Amended Notice of Taking Plaintiff’s Deposition. (Exhibit “I”; Lally Decl. ¿ 6.). The deposition was set for July 27, 2023. (Exhibit “I”.). Plaintiff failed to appear for the fifth time. (Lally Decl. ¿ 6.).

On August 24, 2023, Ford reserved a hearing date to compel Plaintiff’s deposition. (Lally Decl. ¿ 7.). The first available hearing date was February 6, 2024. (Lally Decl. ¿ 7). Ford also continued with their efforts to take Plaintiff’s deposition. On August 24, 2023, Ford served a Fifth Amended Notice of Taking Plaintiff’s Deposition. (Exhibit “J”; Lally Decl. ¿ 7.). The deposition was scheduled for September 26, 2023. (Exhibit “J”). On September 19, 2023, Plaintiff served an Objection to the deposition notice.

On December 6, 2023, Ford again requested dates for Plaintiff’s deposition. (Exhibit “K” Lally Decl. ¿ 8.). No response was received. (Lally Decl. ¿ 8.).

On January 24, 2024, the date Plaintiff’s Opposition was due, Plaintiff contacted Ford and indicated he would be available to be deposed on March 14, 2024. Ford has noticed Plaintiff’s deposition for March 14, 2024. Ford now requests that this Court compel Plaintiff to attend his deposition on March 14, 2024.

On January 24, 2024, Plaintiff’s Counsel filed a declaration indicating no opposition to the Court compelling Plaintiff’s deposition.

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).)¿

CCP¿section¿2025.450(b) provides:¿“A motion under subdivision (a) shall comply with both of the following:¿¿

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.¿¿

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.”¿¿

(Id., § 2025.450(b).)¿

Discussion

On December 14, 2022, Ford sent Plaintiff a meet and confer requesting dates for Plaintiff’s deposition. (Exhibit “A”; Lally Decl. ¿ 2.) After hearing no response from Plaintiff, Ford set Plaintiff’s deposition for January 11, 2023. (Exhibit “B”; Lally Decl. ¿ 2.). The parties conferred and agreed to delay the initial deposition. On March 21, 2023, Ford served a Second Amended Notice of Taking Plaintiff’s Deposition and set the deposition for May 16, 2023. (Exhibit “F”; Lally Decl. ¿ 4.). This deposition was again delayed.

Overall, there have been five amended notices of taking Plaintiff’s deposition, with the most recent being on or around January 24, 2024. Plaintiff contacted Ford and indicated he would be available to be deposed on March 14, 2024. Ford has noticed Plaintiff’s deposition for March 14, 2024. Ford now requests that this Court compel Plaintiff to attend his deposition on March 14, 2024.

Given that Plaintiff has not attended any of the prior properly noticed depositions, the Court finds good cause to grant the motion to compel.

Accordingly, the Court compels deposition of Plaintiff within 45 days of this order.