Judge Yolanda Orozco, Case 19STCV13270 2022-09-15 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV13270, Date: 2022-09-15 Tentative Ruling

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Case Number: 19STCV13270 Hearing Date: September 15, 2022 Dept: 31

MOTION TO COMPEL COMPLIANCE WITH COURT’S

JANUARY 20, 2022 COURT ORDER IS GRANTED

Background

On April 17, 2019, Plaintiffs Adolfo Flores and Olga Flores filed a Complaint against Defendant Kia Motor America, Inc. and Does 1 to 10. The Complaint alleges

1) Violation of the Song-Beverly Act, Breach of Express Warranty;

2) Violation of the Song-Beverly Act, Breach of Implied Warranty;

3) Violation of the Song-Beverly Act § 1793.2;

4) Fraudulent Inducement – Concealment; and

5) Fraudulent Inducement – Intentional Misrepresentation.

On November 11, 2021, Defendant moved for summary adjudication of Plaintiff’s second, third, fourth, and fifth causes of action. The Court granted summary adjudication as to the fourth and fifth causes of action and denied adjudication as to the second and third causes of action. (Min. Or. 02/07/22.)

On January 20, 2022, this Court granted Plaintiff’s Motion to Compel Production of Persons Most Knowledgeable (PMK) in part as to the following categories in Plaintiffs’ Second Deposition Notice—Category Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 17, 26, 27, 28, 29, 30, 31, 33, 34, 35, and 36.

On April 21, 2022, Plaintiff moved for an Order requesting Defendant’s compliance with the Court Order and Sanctions Against Defendant.

Defendant filed opposing papers on August 31, 2022, and Plaintiff filed a reply on September 07, 2022.

LEGAL STANDARD

Code of Civ. Pro (CCP) section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP section 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (id. § 2023.010, subd. (d)) and (2) disobedience to a court order to provide discovery (Id., subd. (g)).

Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.)

In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance. (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021.) Accordingly, there are grounds for terminating sanctions when a party fails to comply with discovery and fails to comply with Court orders regarding discovery.

Discussion

Plaintiff asserts that after this Court granted Plaintiff’s motion to compel the deposition of Kia PMK, in part, Plaintiff’s counsel reached out to defense counsel to ascertain the availability of Kia’s PMK, but Defendant failed to provide any new dates for the deposition of their PMK. (Dreblow Decl. Ex. B.) Plaintiff asserts that to date, Defendants have not responded to Plaintiff’s follow-up emails and have failed to produce their PMK, in compliance with the January 20, 2022 Court Order.

For this reason, Plaintiff seeks Defendants’ compliance with the January 20, 2022 Court Order and $2,2120.50 in monetary sanctions against Defendant and Defendants’ counsel. (Drewblow Decl. ¶¶ 10-12.)

Defendant asserts that because this Court granted summary adjudication as to the fraud causes of action, topics in Plaintiff’s Deposition Notice are no longer reasonably calculated to lead to the discovery of admissible evidence. (Chinery Decl. ¶ 7.) First, the Court notes that the proper course of action would have been for Defendants to file a motion for reconsideration of the January 20, 2022 Court Order, not refuse to comply with the Order. Second, Defendant’s counsel was free to object at the deposition to any testimony or evidence that was no longer relevant to the case. Finally, the parties should have been able to resolve this issue through a good faith meet and confer.

Defendant admits that it finally offered August 23, 2022 as the date for PMK’s deposition. Defendants assert that on August 22, 2022, the Deponent’s mother passed away and the Deponent went on bereavement leave, leaving Defendant unable to produce the PMK on August 23, 2022. (Chinery Decl. ¶ 8.) Defendant asserts that a new date will be provided once the Deponent returns from leave. Defendant does not state when the deponent’s leave will end or when Plaintiff can expect a new deposition date. Defendant asserts an earlier deposition date was not offered “due to the torrent of Lemon Law litigation, which has severely hampered witness availability.” (Opp. At 3:9-11).

The Court finds that Defendant has failed to show it acted in good faith and with due diligence in trying to comply with this Court’s January 20, 2022 Court Order. There are no emails or evidence of Defendant’s meet and confer efforts to provide alternative dates for the deposition. According to Plaintiff’s counsel, such evidence is nonexistent, and there are no follow-up emails to Plaintiff’s request. (See Kreymer Decl. ¶¶ 8-10.)

Defendant did finally offer a new date for the PMK deposition which had to be canceled due to a death in the family. The cancellation of the deposition is understandable under the circumstances. However, Defendant has not offered a new date and trial is about 6 weeks away.

The Court will grant the Motion, finding that it is necessary to ensure Defendant’s compliance with the Court’s January 20, 2022 Order.

SANCTIONS

Plaintiff’s counsel requests $2,2120.50 in monetary sanctions against Defendant and Defendants’ counsel based on 3.3 hours of work in drafting the Motion at a rate of $175.00 per hour, totaling $577.50 per hour. (Drewblow Decl. ¶10.) Plaintiff also seeks payment for 1.0 hours for reviewing and editing the motion at a billing rate of $350.00. (Id.)

Plaintiff’s counsel anticipates spending an additional 2.0 hours reviewing opposing papers and drafting a reply at a billing rate o $295.00 per hour and an additional 2.0 hours attending and preparing for the hearing at a billing rate of $350.00. (Drewblow Decl. ¶ 10.) In total, Plaintiff seeks $2,060.50 in fees, plus $60.00 in filing fees. (Id.)

The Court finds the amount requested to be excessive and therefore unreasonable in light of the simplicity of this motion. The Court awards 1.0 hours at a rate of 175.00 for preparing and drafting the motion, 1.5 hours to review opposing papers and draft a reply billed at $295.00, and 1.0 hours to attend and prepare for the hearing billed at a rate of $350.00.)

The total awarded is $967.50, plus $60.00 in filing fees, totaling $1,027.50 in monetary sanctions against Defendant and Defendant’s counsel.

Conclusion

Plaintiff’s Motion for Compliance is GRANTED. Defendant is ordered to produce its PMK for deposition within 15 days.

Defendant and Defendant’s counsel are ordered to pay $1,027.50 in sanctions.

Plaintiff to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.