Judge: Theresa M. Traber, Case: 21STCV03021, Date: 2023-01-30 Tentative Ruling

Case Number: 21STCV03021    Hearing Date: January 30, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 30, 2022                               TRIAL DATE: August 22, 2023

CASE:                         Jacob Aaron Morayniss, et al. V. Volkswagen Group of America, Inc.

CASE NO.:                 21STCV03021

MOTION TO COMPEL DEPOSITION OF PLAINTIFF JACOB AARON MORAYNISS; REQUEST FOR SANCTIONS

MOVING PARTY:               Defendant Volkswagen Group of America, Inc.

RESPONDING PARTY(S): Plaintiff Jacob Aaron Morayniss

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on January 15, 2021. Plaintiffs leased a new 2021 Audi RS Q8 Quattro which Plaintiffs allege was delivered with serious defects including engine and electrical system defects.

            Defendant moves to compel the deposition of Plaintiff Jacob Aaron Morayniss.

TENTATIVE RULING:

            Defendant’s Motion to Compel Deposition of Plaintiff Jacob Aaron Morayniss is GRANTED. Plaintiff is ordered to appear for deposition by Defendant on March 9, 2023 at a time and location of Defendant’s choosing, or at another date mutually acceptable to the parties not later than March 31, 2023.

            Defendant’s request for sanctions is DENIED.

DISCUSSION:

            Defendant moves to compel the deposition of Plaintiff Jacob Aaron Morayniss.

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Meet and Confer

A motion to compel a deposition must include a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc. §§ 2025.450(b); 2016.040.) 

            The Declaration of Kevin Kumar states that the parties met and conferred extensively in the month leading up to the noticed deposition of Plaintiff. (Declaration of Kevin Kumar ISO Mot. ¶ 3-7.) The declaration also states that Defendant attempted to meet and confer with Plaintiffs’ counsel on May 10, 2022 and August 31, 2022, without success. (Id. ¶ 7.) The Court therefore finds that Defendant has complied with its statutory meet and confer obligations.

Legal Standards

California Code of Civil Procedure section 2025.450, subdivision (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.”

Defendant contends that Plaintiff failed to appear for a noticed remote deposition on January 26, 2022. According to Defendant, the parties met and conferred extensively between December 23 and January 20 concerning Plaintiff’s deposition, during which time Plaintiff resisted providing his availability for a deposition. (Kumar Decl. ¶¶ 3-5.) Plaintiff objected to the noticed deposition on January 11, and ultimately did not appear for the deposition. (Id. ¶¶ 4, 7.)

In opposition, Plaintiff contends that Defendant did not adequately meet and confer to resolve this issue after the motion was filed, but also states that he is willing to sit for a deposition on March 9, 2023. (Declaration of Andrew Jung ISO Opp. ¶ 12.) Thus, it appears to the Court that the principal issue in this motion has been resolved. The Court will therefore order Plaintiff to comply with his stated willingness to sit for a deposition to ensure a final resolution of this issue.

Sanctions

Defendant requests sanctions against Plaintiff and his counsel in the amount of $3,300.

Code of Civil Procedure section 2025.450(g)(1) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel deposition, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

In the Court’s view, sanctions are unjust where, as here, the deponent has expressed his willingness to sit for a deposition. As the purpose of sanctions is to encourage compliance with a party’s discovery obligations, the Court does not think it appropriate to impose monetary sanctions on a party who has stated an intention to comply as Plaintiff has done here.

CONCLUSION:

            Accordingly, Defendant’s Motion to Compel Deposition of Plaintiff Jacob Aaron Morayniss is GRANTED. Plaintiff is ordered to appear for deposition by Defendant on March 9, 2023 at a time and location of Defendant’s choosing, or at another date mutually acceptable to the parties not later than March 31, 2023.

            Defendant’s request for sanctions is DENIED.

IT IS SO ORDERED.

Dated:   January 30, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.