I. BACKGROUND 

Plaintiff James Kay (“Plaintiff”) filed this action against defendants Avis Budget Car Rental, LLC (“Avis”) and Does 1 to 50 for injuries arising from a motor vehicle collision. Plaintiff filed an amendment to complaint naming Pedro Ivan Jimenez Aguilera as Doe 1. On October 26, 2023, the Court granted Avis Rent A Car System, LLC leave to intervene in this action. 

At this time, Plaintiff moves to compel the deposition of Avis Budget Car Rental, LLC’s employee Jeanne Motosko (“Motosko”) and its employee(s) and/or person(s) most qualified (“PMQ”). Plaintiff requests monetary sanctions. 

Defendants Avis and intervenor Avis Rent A Car System, LLC oppose the motion, and Plaintiff filed a reply.  

Plaintiff argues he served Avis with the notice of taking of its PMQ and request for production of documents on July 31, 2023. The notice set the deposition for August 16, 2023, and included 19 matters for identification and 110 requests for production of documents. After defense counsel stated a conflict for the date, the parties met and conferred on a mutually agreeable date, and the PMQ deposition was re-noticed twice for August 17, 2023 and then for September 28, 2023. The parties met and conferred on narrowing the 19 requested categories, and Plaintiff noticed the PMQ deposition for October 3, 2023 reflecting the amended language. Plaintiff also noticed the deposition of Avis’ employee Motosko. Plaintiff has taken multiple certificates of non-appearances related to the PMQ and Motosko depositions. 

Plaintiff contends the parties met and conferred, but could not agree on Avis’ reimbursement to Plaintiff for costs related to the deposition, and the dates for Avis’ PMQ or employees responsive to the requested categories. 

Avis contends that on August 30, 2023, the parties initially agreed to conduct Motosko’s deposition first, and then see what categories were still needed to be addressed. Avis argues the deposition of Motosko is moot because she was deposed on January 10, 2024. While on Zoom after Motosko’s deposition, counsels discussed the future deposition of Avis’ PMQ. Defense counsel avers they have been working with Sedwick’s new adjuster on this matter to confirm the proper PMQs and to have dates for their deposition, but despite apprising Plaintiff’s counsel of this, Plaintiff would not agree to continue the hearing on the motion. Avis argues that its MSJ is set for September 30, 2024, and requests the Court continue the hearing on the motion by 90 days to ensure “Plaintiff gets what he thinks he needs.” (Mot. 6:15-16.) 

Lastly, Avis argues that if monetary sanctions are awarded, that Avis only be required to significantly reduce the amount sought from $7,759.85 to $1,794.10, and that it should not have to reimburse for late cancellation of the PMQ deposition. 

Plaintiff contends Avis intentionally delayed the deposition for months, because Motosko stated at her deposition that she did not know she was designated as the PMQ for any of the noticed categories, nor did anyone notify her that she would be required to testify on any of the categories. Plaintiff argues there has been a pattern of delay that requires Court action to compel the depositions Plaintiff has spent nearly a year to complete.  

II. COMPEL DEPOSITION 

CCP § 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, 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 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. 

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, citations omitted.)   

Here, the Court continued Avis’ motion for summary judgment (MSJ) twice to provide Plaintiff the opportunity to depose Avis’ employees, agents, and/or person(s) most knowledgeable, which was delayed due to Plaintiff’s counsel’s long-term health concerns that prevented him from being able to notice and take the depositions earlier. (Min. Orders, May 17, 2023 and Aug. 15, 2023.) It has now been seven months since the Court last continued the MSJ, yet only Motosko’s deposition has been completed since then. Avis appears to concede that there are other identified or to be identified employees who are required to be deposed in order to fulfill the deposition categories the parties agreed upon. The Court has reservations in terms of Avis’ request to continue the motion for three months when the depositions have already been delayed by a length of time. 

Accordingly, the Plaintiff’s motion to compel the deposition of Avis’ PMQ is GRANTED.  (CCP § 2025.450(a).)  Avis’ PMQ is ordered to appear for deposition at a date, time, and location to be noticed by Plaintiff. The parties are ordered to meet and confer on a mutually agreeable date in order for the deposition of Avis’ PMQ(s), who are responsive to the remaining categories noticed by Plaintiff, to proceed within 35 days. If Avis does not meaningfully participate in the meet and confer discussion, Plaintiff may unilaterally notice Avis PMQ’s deposition, and Avis’ PMQ is ordered to appear for the deposition on a date, time, and location and Plaintiffs’ election. However, Plaintiff must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service), and the language on the amended deposition notice must be in accordance with any changes the parties had previously agreed upon.   

III. SANCTIONS 

CCP § 2025.450(g)(1) requires the court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. Both parties request monetary sanctions. Avis’ request for monetary sanctions is denied. Plaintiff’s request for monetary sanctions is granted, but not to the full extent. Plaintiff is awarded costs related to Motosko’s deposition and the PMQ’s depositions that were noticed prior to the agreement that Motosko’s deposition proceed first, in the total amount of $3,683.20 for deposition costs, and one motion filing fee of $61.65. Further, Plaintiff is granted four hours for the motion, at the requested rate of $400 per hour, in the total amount of $1,600 for attorney’s fees. 

Sanctions are sought and imposed against Avis and its counsel, jointly and severally. Avis and/or its counsel are ordered to pay sanctions to Plaintiff, by and through his counsel of record, in the total amount of $5,344.85, within twenty (20) days.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 19th day of March 2024