Judge: Theresa M. Traber, Case: 23STCV03698, Date: 2024-03-13 Tentative Ruling

Case Number: 23STCV03698    Hearing Date: March 13, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 13, 2024                      TRIAL DATE: September 24, 2024

CASE:                         Gary M. Gekht v. Volkswagen Group of America, Inc.

CASE NO.:                 23STCV03698           

MOTION TO COMPEL DEPOSITION

MOVING PARTY:               Defendant Volkswagen Group of America, Inc.

RESPONDING PARTY(S): No response on eCourt as of 3/8/24

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on February 21, 2023. Plaintiff alleges that he purchased a 2020 Audi Q8 which subsequently manifested electrical, engine, and steering system defects.

Defendant moves to compel Plaintiff’s deposition, and for sanctions.

TENTATIVE RULING:

Defendant’s Motion to Compel Deposition is GRANTED.

            Plaintiff is ordered to appear for remote deposition by Defendant at a time of Defendant’s choosing within 10 days of this order.

            Defendant’s request for sanctions is GRANTED in the amount of $1,475 against Plaintiff and his counsel, jointly and severally. Payment is to be made within 20 days of this order.

DISCUSSION:

Defendant moves to compel Plaintiff’s deposition, and for sanctions.

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Legal Standard

            Defendant does not set forth in the Notice of Motion the statutes or other authority under which it is seeking the relief requested in this motion. As the operative authority, Code of Civil Procedure section 2025.450, is referenced extensively throughout the included Memorandum of Points and Authorities, the Court will address the motion on its merits under this statute.

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.

(Code Civ. Proc. § 2025.450(a).) Further, where production of documents is sought in connection with the deposition, the motion must set forth specific facts showing good cause justifying the production. (Code Civ. Proc. § 2025.450(b)(1).)

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 Erin E. Tallent describes the extensive efforts undertaken by Defendant to meet and confer regarding the taking of Plaintiff’s deposition between June 22 and October 18, 2023. (Declaration of Erin E. Tallent ISO Mot. ¶¶ 3-16, Exhs. A-I.) Defendant has therefore satisfied its statutory meet-and-confer obligations.

Analysis

            Defendant moves to compel Plaintiff to appear for deposition. Defendant served the operative notice of Deposition on July 14, 2023, setting the date of deposition as September 18, 2023 pursuant to dates of availability identified by Plaintiff’s counsel. (Tallent Decl. ¶¶ 6-7, Exhs. E-F.) On September 16, 2023, during settlement discussions, Defendant’s counsel advised Plaintiff’s counsel that Defendant would be willing to reopen a previously rejected Offer to Compromise. (Tallent Decl. ¶ 9.) Plaintiff did not appear at the September 18 deposition, and only gave notice that Plaintiff would not appear more than an hour after the scheduled deposition time. (¶¶12-13, Exh. I.) Plaintiff’s counsel represented that, if the parties did not settle, alternative dates would be provided no later than September 22, 2023. (Id.) As of the date of filing of the motion, no deposition dates had been provided. (¶ 17.) The Court subsequently ordered the parties to provide deposition dates for Plaintiff and Defendant’s Person Most Knowledgeable by February 26, 2024. (February 22, 2024 Minute Order.) Defendant is therefore entitled to an order compelling Plaintiff’s appearance for a deposition.

            The Court observes that the Notice of Deposition also requests the production of documents. However, as Defendant’s moving papers do not speak to this portion of the deposition notice, the Court does not reach this issue.

Sanctions

            Defendant also requests monetary sanctions against Plaintiff and his counsel in the amount of $2,215.

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.

            Here, Defendant requests sanctions in the amount of $2,215, based on 2 hours of attorney time incurred preparing this motion at an hourly rate of $370 per hour, plus 2 anticipated hours, plus $60 in filing fees, plus an additional $675 in costs to cover the fees for the court reporter at the September 18 deposition. (Tallent Decl. ¶ 20.) The Court declines to award anticipated attorney’s fees not actually incurred. Accordingly, Defendant will be awarded reduced sanctions in the amount of $1,475, reflecting the fees and costs actually incurred.

CONCLUSION:

            Accordingly, Defendant’s Motion to Compel Deposition is GRANTED.

            Plaintiff is ordered to appear for remote deposition by Defendant at a time of Defendant’s choosing within 10 days of this order.

            Defendant’s request for sanctions is GRANTED in the amount of $1,475 against Plaintiff and his counsel, jointly and severally. Payment is to be made within 30 days of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 13, 2024                                  ___________________________________

                                                                                    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.