Judge: Melvin D. Sandvig, Case: 22CHCV00999, Date: 2023-05-15 Tentative Ruling
Case Number: 22CHCV00999 Hearing Date: May 15, 2023 Dept: F47
Dept. F47
Date: 5/15/23
Case #22CHCV00999
MOTION TO
COMPEL DEPOSITION & PRODUCTION OF DOCUMENTS
Motion filed on 3/2/23.
MOVING PARTY: Plaintiffs Julio Basulto and Leslie Reyes
RESPONDING PARTY: Defendant General Motors, LLC
NOTICE: ok
RULING: The motion is granted, in part, and
denied, in part, as set forth below.
SUMMARY OF FACTS & PROCEDURAL HISTORY
The is action arises out of Plaintiffs Julio Basulto and
Leslie Reyes’ (Plaintiffs) purchase of a 2021 Chevrolet Tahoe (the Vehicle)
which was covered by Defendant General Motors, LLC’s (Defendant) express and
implied warranties. Plaintiffs contend
that the Vehicle developed substantial defects related to the engine,
electrical and other vehicle components which have not been adequately
repaired, despite multiple attempts.
Defendant has refused Plaintiffs’ request to repurchase or replace the
Vehicle.
As a result, on 10/27/22, Plaintiffs filed this action
against Defendant for violation of the Song-Beverly Consumer Warranty Act. On 11/21/22, Plaintiffs served Defendant with
Notice of Deposition for Defendant’s Person Most Qualified. (Kaufman Decl. ¶8, Ex.1). On 12/14/22, Defendant served objections to
the notice. (Id. ¶9, Ex.2). On 12/16/22, Plaintiffs’ counsel called Defendant’s
counsel to meet and confer and also sent an email. (Id. ¶10, Ex.3). Defendant failed to respond; therefore, on
12/19/23, Plaintiffs served their 1st Amended Notice
of Deposition of Defendant’s Person Most Qualified (1st Amended
Notice) setting the deposition for 1/13/23.
(Id. ¶11, Ex.4). Defendant
did not serve any objections nor did Defendant appear for deposition on
1/13/23. (Id. ¶12).
On 3/2/23, Defendant filed and served the instant motion
seeking an order compelling the deposition of Defendant’s Person or Persons
Most Qualified, with production of documents, within 30 days. Additionally, Plaintiffs request an order
imposing sanctions against Defendant in the amount of $2,952.22. Defendant has opposed the motion and
Plaintiff has filed a reply to the opposition.
ANALYSIS
CCP 2025.450 provides, in relevant part:
“(a) 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.
(b) 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, by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.
. .
.
(g)(1)
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.”
Objections to a deposition
notice must be served at least three calendar days before the date for which
the deposition is scheduled. See
CCP 2025.410(a). Defendant admits that
it failed to serve any objections before the 1/13/23 deposition date set forth
in the 1st Amended Notice claiming that the failure was the result
of inadvertence and mistake. (See
Brar Decl. ¶6). However, Defendant’s
counsel does not state the dates on which it purportedly miscalendared the
deposition date and its objections deadline.
Id. Additionally,
Defendant’s counsel fails to explain why Defendant did not try to resolve the
issue upon discovering the miscalendaring error, why it did not serve
objections based on the miscalendared deadline, or, minimally, upon receipt of
the instant motion which was served on 3/2/23 rather than waiting until 2
months later to include objections to the 1st Amended Notice with
the opposition to the motion which was filed and served on 5/2/23. Id.
Further, Defendant cites no authority which allows it to interpose
objections to a deposition notice approximately 4 months after its failure to
appear at the deposition or produce responsive documents.
Even if Defendant had timely
served its objections to the 1st Amended Notice, the Court finds
them to be without merit, especially considering Plaintiffs’ willingness to execute a Protective Order. Therefore, Defendant is ordered to produce
its Person(s) Most Qualified with regard to the categories set forth in the 1st
Amended Notice and to produce documents in response to the requests
therein. Counsel for the parties are
ordered to meet and confer regarding the scheduling of the deposition so that
it will take place within the next 30 days.
Because Plaintiffs failed to
meet and confer after Defendant failed to appear for deposition in response to
the 1st Amended Notice, the Court finds that imposing sanctions
under the circumstances would be unjust.
See CCP 2025.450(b)(2), (g)(1).
The Court notes that in
violation of General Orders and court rules, Plaintiffs have failed to bookmark
the declaration attached to the motion and Defendant has failed to bookmark the
exhibits attached to the opposition and declaration submitted in support of the
opposition. See CRC 3.1110(f)(4);
(5/3/19 First Amended General Order Re Mandatory Electronic Filing for
Civil). The parties are warned that
failure to comply with court rules and orders in the future may result in
matters being continued so that papers can be properly submitted, papers not
being considered and/or the imposition of sanctions.