Judge: Stephen P. Pfahler, Case: 22CHCV01394, Date: 2024-01-02 Tentative Ruling

Case Number: 22CHCV01394    Hearing Date: January 2, 2024    Dept: F49

Dept. F-49

Date: 1-2-24

Case #: 22CHCV01394

Trial Date: Not Set

DEPOSITION

MOVING PARTY: Defendant, Jones BH Acquisition, LLC dba Audi Beverly Hills

RESPONDING PARTY: Plaintiff, Chance Tassone

RELIEF REQUESTED

·         Motion to Compel the Deposition of Plaintiff

SUMMARY OF ACTION

On February 26, 2021, plaintiffs Chance Tassone and Chance of a Lifetime, Inc. entered into a “warranty contract” with defendant Volkswagen Group of America, Inc. regarding a 2021 Audio E-tron vehicle. Plaintiffs demanded repairs for unspecified problems, which remain unresolved.

On December 15, 2022, and January 17, 2023, Plaintiff filed a complaint and first amended complaint for Violations of Song-Beverly Act – Breach of Express Warranty, Violations of Song-Beverly Act – Breach of Implied Warranty, Violations of Song-Beverly Act – Civil Code section 1793.2, and Negligent Repair. On February 21, 2023, Volkswagen Group of America, Inc. answered the first amended complaint. On May 8, 2023, the court sustained the demurrer to the fourth cause of action for negligent repair.

On June 7, 2023, Plaintiff filed a second amended complaint for Violations of Song-Beverly Act – Breach of Express Warranty, Violations of Song-Beverly Act – Breach of Implied Warranty, Violations of Song-Beverly Act – Civil Code section 1793.2, and Negligent Repair. Defendant Jones BH Acquisition, LLC dba Audi Beverly Hills answered on July 19, 2023.

RULING: Granted.

Defendant Jones BH Acquisition, LLC dba Audi Beverly Hills (Audi) moves to compel the deposition of plaintiff Chance Tassone. Plaintiff in opposition maintains the motion is now moot, as the parties agreed to a deposition date, and the court should therefore also refrain from imposing sanctions. Defendant in reply requests the court order the deposition in order to insure an appearance for the deposition, but agrees to withdraw the motion if Plaintiff appears.

A party may file a motion to compel deposition upon a non-appearance of the noticed party. “If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, or to proceed with it … the party giving the notice may move for an order compelling the deponent's attendance and testimony…” (Code Civ. Proc., §2025.450, subd. (a).) A party must object to a deposition no less than three calendar days before deposition date. (Code Civ. Proc., §2025.410, subd. (b).)

Defendant served a Notice of Deposition for July 18, 2023. No objections appeared. Defendant held the deposition, but Plaintiff failed to appear. [Declaration of Erin Tallent.] A certificate of non-appearance was created. [Id., ¶ 7. Ex. D.] (See Code Civ. Proc., § 2025.450, subd. (b).)

The court finds the motion complies with procedural requirements. While the parties now purportedly agreed to a deposition on December 29, 2023, the court cannot verify whether the deposition will have occurred at the time of the tentative ruling publication or hearing barring notice from moving party. Thus, the court therefore grants the motion in order to assure the appearance pending proof of appearance for the deposition, and notice of withdrawal by moving party.

If plaintiff Chance Tassone fails to appear upon the agreed upon date, and the motion remains active, Plaintiff is ordered to appear for a deposition within 30 days of this order. The court orders to meet and confer on a new deposition within 10 days of this order. If the parties are unable to agree, due to the lack of cooperation or communication by the deponent, and/or the deponent fails to appear again after the setting of the date, Plaintiff may unilaterally pick a date. Plaintiff may attempt to conduct the deposition, and take a subsequent notice of non-appearance, if applicable. Any subsequent non-appearance may constitute grounds for an evidentiary, issue or even terminating sanction (dismissal of the action) in favor of moving defendant. (Code Civ. Proc., §2025.450, subd. (h).)

The motion lacks any request for sanctions. (Code Civ. Proc., §2025.450, subd. (g).)

Trial set for September 3, 2024.

Moving party to give notice.