Judge Michael P. Linfield, Case 22STCV12127 2023-03-01 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV12127, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV12127 Hearing Date: March 1, 2023 Dept: 34

SUBJECT: Motion to Compel Deposition Attendance of Defendant American Honda Motor Co., Inc.’s Person Most Qualified and Custodian of Records

Moving Party: Plaintiffs Salomon Nava Salvador and Carmen Nava

Resp. Party: Defendant American Honda Motor Co., Inc.

Plaintiffs’ Motion is GRANTED in part. Defendant shall make its person most qualified available for deposition within seven (7) days. Both Plaintiffs’ and Defendant’s respective requests for sanctions are DENIED.

BACKGROUND:

On April 11, 2022, Plaintiffs Salomon Nava Salvador and Carmen Nava filed their Complaint against Defendant American Honda Motor Co., Inc. on causes of action regarding alleged violations of the Song-Beverly Act and fraudulent inducement by concealment.

On August 2, 2022, Defendant filed its Answer.

On November 2, 2022, Plaintiffs filed their Motion to Compel Deposition Attendance of Defendant American Honda Motor Co., Inc.’s Person Most Qualified and Custodian of Records. Plaintiffs concurrently filed: (1) Declaration of Thach Tran; (2) Separate Statement; and (3) Proposed Order.

On November 14, 2022, Defendant filed its Opposition.

On November 18, 2022, Plaintiffs filed their Reply.

This Motion was originally scheduled to be heard on November 29, 2023. It was continued – for reasons unknown to the Court – until this hearing on March 1, 2023.

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 the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)

“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

The relevant facts here are undisputed. In Plaintiffs’ own recitation of the facts:

(1) “[O]n September 13, 2022, Plaintiffs served Defendant with a Notice of Deposition of Defendant’s Person(s) Most Qualified and Custodian(s) of Records”;

(2) “[T]he deposition was noticed for October 7, 2022”;

(3) “On September 30, 2022, Defendant served Objections to the Notices of Deposition and stated that the deponent and counsel would not appear at the noticed date”;

(4) “On October 6, 2022, Plaintiffs acknowledged receipt of objections to the notice of deposition and requested alternative dates for the deposition”;

(5) “On October 6, 2022, Defendant responded they will confer with their client and will work on providing dates”;

(6) Defendant similarly responded on October 12 and 24, 2022;

(7) “Defendant followed up on October 25, 2022, stating that March 8, 2023, and March 9, 2023, work for them”;

(8) “Plaintiffs responded that trial in this matter is set for April 24, 2023 and request an earlier date for the deposition”;

(9) “Plaintiffs thereby followed up on October 28, 2022, with Defendant to ensure the depositions move forward”; and

(10) “Defendant still has not responded with alternative dates.”

(Motion, pp. 6:16–17, 6:28, 7:1–19.)

Plaintiffs move the Court to (1) order Defendant to produce its person most qualified and custodian of records to testify, and (2) award sanctions against Defendant and its counsel of record in the amount of $2,510.00. (Motion, p. 16:9–12.)

Defendant opposes the Motion. Among other arguments, Defendant argues that no good cause exists to compel the deposition because Defendant has already provided Plaintiffs with deposition dates on which Defendant’s person most qualified is actually available. (Opposition, p. 4:2–12.) Defendant also requests sanctions for Plaintiffs’ bringing the Motion. (Id. at p. 6:22–24.)

While Defendant has made its person most qualified available, the Court agrees with Plaintiffs that it is unreasonable to only offer dates that are more than five months after the original deposition date of October 7, 2022 and less than one week from the discovery cutoff deadline of March 10, 2023.

III. Conclusion