Judge: Michael P. Linfield, Case: 21STCV46001, Date: 2023-01-20 Tentative Ruling

Case Number: 21STCV46001    Hearing Date: January 20, 2023    Dept: 34

SUBJECT:         Motion for Order: (1) Compelling Plaintiffs Kevin Padilla Alexander and Joyce Soyeun Alexander to Appear for Deposition; (2) Setting Dates for the Depositions; (3) Imposing Monetary Sanctions on Plaintiffs and Plaintiffs’ Attorneys; and (4) Setting Mandatory Settlement Conference or, in the Alternative, for an Order Shortening Time for Hearing on Motion

Moving Party:  Defendant BMW of North America, LLC

Resp. Party:    Plaintiffs Kevin Padilla Alexander and Joyce Soyeun Alexander

Defendant’s Motion is DENIED as moot. Defendant’s Request for Sanctions and Request for Mandatory Settlement Conference are DENIED.

BACKGROUND:

On December 16, 2021, Plaintiffs Kevin Padilla Alexander and Joyce Soyeun Alexander filed their Complaint against Defendant BMW of North America, LLC on causes of action regarding alleged violations of the Song-Beverly Consumer Warranty Act and negligence.

On January 27, 2022, Defendant filed its Answer.

On December 20, 2022, Defendant filed its Motion for Order: (1) Compelling Plaintiffs Kevin Padilla Alexander and Joyce Soyeun Alexander to Appear for Deposition; (2) Setting Dates for the Depositions; (3) Imposing Monetary Sanctions on Plaintiffs and Plaintiffs’ Attorneys; and (4) Setting Mandatory Settlement Conference or, in the Alternative, for an Order Shortening Time for Hearing on Motion. Defendant concurrently filed its Proposed Order.

On January 9, 2023, Plaintiffs filed their Opposition, which included Declaration of Nadia Yashar.

On January 12, 2023, Defendant filed its Reply.

ANALYSIS:

I.           Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)  

“If, after service of a deposition notice, a party . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration. (Code Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)

II.        Discussion

Defendant moves the Court to: (1) compel Plaintiffs to appear for a deposition; (2) set a date for the depositions; (3) impose monetary sanctions against Plaintiffs and Plaintiffs’ Counsel; and (4) set a mandatory settlement conference within the next 30 days or as soon as the Court’s calendar will permit. (Motion, pp. 9:21–28, 10:1–7.)

Plaintiff’s Opposition notes that the depositions were since scheduled for January 10, 2023, and Defendant’s Reply confirms that the depositions have since occurred. (Opposition, Decl. Yashar, ¶ 7; Reply, p. 3:24–26.)

Thus, the first two requests for relief are now moot. Given the circumstances discussed in the filings, the Court also denies Defendant’s Request for Sanctions. The Court will not order a mandatory settlement conference at this time, although the Court encourages the Parties — who both appear amenable to settlement — to meet and confer regarding settlement in advance of the upcoming Final Status Conference scheduled for February 9, 2023.

III.     Conclusion

Defendant’s Motion is DENIED as moot. Defendant’s Request for Sanctions and Request for Mandatory Settlement Conference are DENIED.