Judge: Sarah J. Heidel, Case: 22GDCV01890, Date: 2024-10-03 Tentative Ruling
Case Number: 22GDCV01890 Hearing Date: October 3, 2024 Dept: V
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT V
JORGE VARGAS, an individual,
Plaintiff,
vs.
KIA AMERICA, INC., a California corporation, and TROPHY OF CARSON, LLC, a Califiornia Limited Liability Company d/b/a KIA OF CARSON, and DOES 1 through 10, inclusive,
Defendants.
Case No.: 23GDCV01890
Hearing Date: October 3, 2024
Time: 9:00 a.m.
[TENTATIVE] ORDER RE: MOTION TO COMPEL DEPOSITION OF PLAINTIFF
MOVING PARTIES: Defendant KIA AMERICA, INC.
RESPONDING PARTY: Plaintiff JORGE VARGAS
The court considered the moving papers, opposition, and reply.
BACKGROUND
This is a lemon law case. Plaintiff Jorge Vargas (plaintiff) filed the complaint against defendants Kia America, Inc. and Trophy of Carson, LLC d/b/a Kia of Carson on September 7, 2023. Plaintiff alleges the following causes of action: (1) violation of Song-Beverly Act – breach of express warranty against defendant Kia America, Inc.; (2) violation of Song-Beverly Act – breach of implied warranty against defendant Kia America, Inc.; (3) violation of Song-Beverly Act section 1793.2 against defendant Kia America, Inc.; and (4) negligent repair against defendant Kia of Carson. Plaintiff alleges that he purchased a 2022 Kia Sorento on June 25, 2022 (subject vehicle). Plaintiff alleges that the subject vehicle was delivered to plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including but not limited to engine, electrical, and emission system defects. Plaintiff alleges he presented the subject vehicle for repairs six times for issues relating to warning lights illuminating, the subject vehicle not starting multiple times, and the subject vehicle shutting off while driving.
Defendant Kia America, Inc. (defendant) filed the instant motion on June 17, 2024. Plaintiff filed his opposition on September 19, 2024. Defendant filed its reply on September 26, 2024.
LEGAL STANDARD
A party may obtain discovery by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)
Code of Civil Procedure section¿2025.450(a) provides:¿“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 . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)
Code of Civil Procedure section¿2025.450(b) provides:¿“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.”¿ (Code Civ. Proc., § 2025.450(b).)
DISCUSSION
Defendant asks the court to compel plaintiff to attend and testify at a deposition and produce documents on the grounds that plaintiff has failed to appear for his properly noticed deposition.
A. Separate Statement
Under California Rules of Court Rule 3.1345, a separate statement is required for a motion to compel the production of documents at a deposition and a motion to compel answers at a deposition. Defendant failed to file a separate statement in support of the motion. The court accordingly denies defendant’s motion to compel the production of documents at deposition.
A separate statement is not required to compel a party to attend a deposition. (Cal. Rule of Court 3.1345 (a).) The court addresses the motion to compel plaintiff’s deposition below.
B. Motion to Compel Deposition of Plaintiff
Defendant served a notice of taking deposition of plaintiff and request for production of documents at time of deposition on September 27, 2023, set for December 7, 2023. (Decl. of Sara Rabiee, ¶ 2; Exh. A.) On November 24, 2023, plaintiff objected to the notice on the basis of unavailability and unilateral notice. (Decl. of Sara Rabiee, ¶ 3; Exh. B.) Defenant’s counsel states that it attempted to obtain plaintiff’s availability for deposition three times to no avail on November 27, 2023, Febrruary 15, 2024, and February 22, 2024. (Decl. of Sara Rabiee, ¶ 4; Exh. C.) As of the date of filing the motion, plaintiff had not responded to the attempts to obtain alternate deposition dates. (Decl. of Sara Rabiee, ¶ 6.) The court finds that defendant attempted to meet and confer to find an available date to conduct plaintiff’s deposition.
Plaintiff argues that the motion is moot because on September 18, 2024, plaintiff provided an alternative date for his deposition to occur on December 19, 2024. (Decl. of Daniel Gopstein, ¶ 6; Exh. 2.) The court is not persuaded. Plaintiff provided a date of availability over nine months after defendant requested plaintiff’s availability. This is not a showing of good faith as plaintiff contends it is. The court finds that as the deposition of plaintiff is necessary for defendant’s ability to evaluate the matter and prepare its defense and because of plaintiff’s
reticence in providing his availability until after defendant filed the instant motion, an order compelling plaintiff to appear at his deposition is warranted.
Based on the foregoing, the court GRANTS defendant’s motion to compel plaintiff’s deposition and DENIES defendant’s motion to compel plaintiff to produce documents at the deposition. If defendant is not available on the suggested date of December 19, 2024, the parties are ordered to meet and confer regarding a mutually agreeable date.