Judge Ralph C. Hofer, Case Number: 23GDCV00917, Date: 2024-10-11 Tentative Ruling

Plaintiff Greater LA Auto Center alleges that in September of 2021, defendant Rodolfo Mejia patronized plaintiff Greater LA Auto Center with an interest in trading in defendant’s old car and purchasing a new car from plaintiff’s inventory.

Plaintiff alleges that Aramais Manukyan, plaintiff’s principal and owner, entered into several oral agreements regarding the trade in purchase of defendant Mejia’s vehicle and the financing of the vehicle which defendant sought, and Manukyan on behalf of plaintiff offered to accept $4,500 for defendant’s 2016 Honda Civic EX, given the Honda’s poor and damaged condition. Defendant Mejia had expressed interest in purchasing a 2010 Volkswagen GTI from plaintiff’s inventory, and made four car note payments representing September 2021, October 2021, November 2021, and December 2021. A transaction was consummated wherein plaintiff helped defendant finance the Volkswagen GTI with a financing company and drive it off the dealership lot.

The complaint alleges that at a later point in time, plaintiff received notice that defendant Mejia reported his newly acquired Volkswagen GTI as having problems with its “check engine” light being illuminated. Plaintiff alleges that plaintiff offered to inspect the vehicle to determine the cause of the light’s illumination and gave special attention to follow the manufacturer’s troubleshooting procedure, and made many repairs in a good faith attempt to permanently fix the vehicle’s problem. Plaintiff also alleges that plaintiff lent defendant a free loaner car, a Hyundai Hybrid, which plaintiff vandalized, and ran until it was out of fuel, which caused irreversible damage to the electrical motor and battery. Plaintiff alleges that as a result plaintiff was forced to pay three times for trucking services and lost the use of the Hyundai Hybrid courtesy car for an extended period of time.

Eventually, after numerous attempts to fix the problem with the Volkswagen GTI, plaintiff offered to reimburse defendant Mejia’s four car note payments to the bank that financed the Volkswagen GTI, totaling approximately $12,166.00, and also offered to pay the amount owed on the Volkswagen GTI totaling approximately $6,787.00. Plaintiff alleges that the parties agreed to this agreement.

The complaint alleges that defendant Mejia then began a campaign of harassing calls and threats due to defendant’s dissatisfaction as a result of defendant’s belief plaintiff had deliberately sold defendant a defective car, and a small claims action, in which defendant declared under oath an inflated and falsified amount for which plaintiff had purportedly offered to purchase defendant Mejia’s trade in 2016 Honda Civic.

Plaintiff argues that plaintiff has noticed the deposition several times, but that defendant has failed to appear for the deposition. The showing is not ideal, as plaintiff has failed to submit a copy of the deposition notice which plaintiff argues was not complied with, noticing a deposition for July 5, 2024. The declaration of counsel attaches a transcript of a Statement on the Record, in which counsel for plaintiff states:

“On June 24, 2024, Plaintiff, Greater LA Auto Center, served Defendant with its fourth amended notice of deposition following a hearing that same day in Department D of the superior court of LA. At that time, Judge Hofer admonished Defendant on the consequences of not attending today's deposition including, but not limited to, a waiver of evidentiary rights at trial and being subject to sanctions in the discretion of the Court.

Today, July 5, 2024, I attempted to establish contact with Mr. Mejia on his home phone prior to this morning's deposition leaving a voicemail reminding of his need to attend. I also emailed him a link to join today's deposition but received no response or acknowledgment.”

Defendant in opposition does not dispute that deposition notices were served on defendant and attaches emails from counsel for plaintiff which includes reference to the Fourth Amended Deposition Notice which defendant evidently received. [Mejia Decl., Ex. 1]. Evidently, defendant has not served written objections to the deposition notice.

“(a) If, after service of a deposition notice, a party to the action…, 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.”

It appears from both sets of papers that defendant, a party to the action, did not serve an objection to the notice to appear at deposition on July 5, 2024, and failed to appear for his examination. Defendant in opposition argues that the motion should be denied because counsel for plaintiff sent multiple deposition notices which included different times and dates for the deposition, and prior notices had not provided proper information regarding the details of the deposition, or, evidently, links. [Mejia Decl.]. Defendant indicates that on July 5, 2024, the attorney finally gave defendant a link for the deposition, but that “this caused significant confusion in my schedule as I tried to figure out when I was actually supposed to appear at the deposition.” [Id.].

Based on the collective showing, and the Mejia Declaration stating, “I have communicated my willingness to cooperate and participate in the deposition and believe we can find a mutually convenient time,” the court finds that at the concession of defendant in the opposition, the court now properly may order that the deposition be conducted on a date certain within the next thirty days.

Since a copy of the deposition notice is not included in the moving papers, the court has insufficient information to determine if the order should include an order that defendant be required to bring documents to the deposition.

(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.”

The motion here provides a sufficient meet and confer declaration describing the contact with the deponent to inquire about the nonappearance, as well as additional efforts to obtain a deposition date. [Vogel Decl., paras. 4, 5]. However, there is no attempt by plaintiff in the moving papers to show good cause for the production of documents, and without the notice showing what documents or categories of documents are at issue, the court cannot make such an order.

The motion with respect to documents is denied without prejudice to plaintiff serving on defendant a notice of deposition of the deposition to be conducted on the date certain to be determined at the hearing, which notice must be served promptly and may include appropriate requests for production of documents. The order also is without prejudice to defendant serving timely objection or timely seeking a protective order concerning the document requests, if appropriate, after good faith meet and confer. Such a protective order may be sought by ex parte application reasonably in advance of the deposition date, if necessary.

Defendant’s opposition seems to be primarily targeted at arguing that plaintiff’s request for sanctions be denied, as it would be unjust to impose penalties based on defendant’s confusion with the procedural issues pertaining to depositions.

The moving papers do not mention sanctions, and do not appear to seek monetary sanctions against defendant, so that the court in any case may not impose monetary sanctions under the circumstances.

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Here, the notice of motion does not seek sanctions, does not specify the person, party, and attorney against whom any sanctions are sought, and does not specify the type of sanction sought. The motion is not accompanied by a memorandum of points and authorities supporting any request for sanctions, or any declaration setting forth facts supporting the amount of any monetary sanctions sought.

Plaintiff’s Motion to Compel the Deposition of Defendant Rodolfo Mejia is GRANTED, at the concession of defendant in the opposition that defendant is willing to cooperate and participate in a deposition.

Defendant Rodolfo Mejia is ordered to appear for deposition and give testimony by remote video appearance on November 15, 2024 at 9:00 a.m. Video conference link to be transmitted to defendant no later than 24 hours prior to the time of the deposition.

Request for production of documents at deposition is DENIED WITHOUT PREJUDICE to plaintiff serving a notice of deposition which includes permissible document requests, which notice must be served by electronic transmission no later than October 25, 2024. This order is also without prejudice to defendant timely serving objections, if appropriate, or timely moving for a protective order, which can be pursued by ex parte application, if necessary, no later than 5 days prior to the date of the deposition.

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