Judge Yolanda Orozco, Case 20STCV21736 2022-08-18 Tentative Ruling

Judge: Yolanda Orozco, Case: 20STCV21736, Date: 2022-08-18 Tentative Ruling

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Case Number: 20STCV21736 Hearing Date: August 18, 2022 Dept: 31

MOTION TO COMPEL PMK DEPOSITION IS GRANTED

Background

On Jun 09, 220, Plaintiff Anna Gabriela Nanez Ramirez aka Ana Nanez filed a Compliant against Defendant Nissan North America, Inc. and Does 1to 10 for violations of the Song-Beverly Act.

On May 19, 2022, Plaintiff filed a Motion to Compel the Deposition of Defendant’s Person Most Knowledgeable (“PMK”) and Custodian(s) of Records.

Defendant filed Opposition papers on August 08, 2022. Plaintiff filed a Reply on August 11, 2022.

Legal Standard

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”¿ CCP § 2025.010.

“Subject to Sections 2025.270 and 2025.610, an oral deposition may be taken as follows: . . . . (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”¿ CCP § 2025.210.¿ “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”¿ CCP § 2025.270(a).

“The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served.”¿ CCP § 2025.240(a).¿ “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”¿ CCP § 2025.280(a).

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”¿ CCP § 2025.410(a). If an objection is made three calendar days before the deposition date the objecting party must make personal service of such objection pursuant to CCP § 1011 on the party that gave notice of the deposition. CCP § 2025.410(b).

“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, . . . the party giving the notice may move for an order compelling the deponent's attendance and testimony . . . .”¿ CCP § 2025.450(a).¿ “. . . . (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. [and] (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.”¿ CCP § 2025.450(b).

Discussion

A. Motion to Compel Deposition of PMK

Plaintiff asserts they served Defendant with Notice of Deposition of Defendant’s PMK(s) and Custodian(s) of Record on March 04, 2022. (Davina Decl. ¶ 3, Ex. A.) The deposition identified 25 matters for examination and 23 requests for production of documents. (Davida Decl. Ex. A.) The Deposition was scheduled to take place on April 06, 2022. (Id.) Along with the Notice of Deposition, Plaintiff’s counsel attached a letter to Defendant stating:

“If your office and your witness are not available on the date noticed, please provide at least three alternative dates on which the deposition can go forward. We request that you provide alternative dates by Friday, April 1, 2022.”

(Id.)

On March 30, 2022, Defendant served general objections to the Notice of Deposition and stated its counsel and PMK would not appear on the noticed dated. (Ex. C.) Plaintiff asserts that to date Defendant has not provided any alternative dates for the deposition. Plaintiff also asserts that Defendant failed to provide specific objections to Plaintiff’s matters for examination or categories of documents produced.

In Opposition, Defendant argues they fully intend to produce its PMK for deposition, but they properly objected to the Deposition due to the unilaterally set date. (Preston Decl. ¶ 6.)

Plaintiff provided evidence in the form of emails, urging Defendant to provide alternative dates for the deposition. (Ex. B.) The fact that Plaintiff and Defendant are repeat players and have various cases pending against each other, does not excuse Defendant’s failure to produce PMK for deposition. Moreover, Defendant’s do not cite any legal authority that would require Plaintiff’s counsel to agree to “conduct a global Person Most Knowledgeable deposition to encompass the global categories they place in each deposition notice[.]” (Preston ¶ 4.)

Accordingly, Defendant’s objection to producing PMK due to the unilaterally set date is without merit when Defendant was given the opportunity to set alternative dates. (See Mot. Ex. B.)

Moreover, any objections to the matters of examination and document production are unripe because the deposition has not taken place, and are therefore without merit. As the responding party, Defendant has the burden of establishing a valid objection, including any claim of privilege. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220.) If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate the burden that is being imposed on that party.¿(West Pico Furniture Co.¿v.¿Los Angeles v. Superior Court¿(1961) 56 Cal. 2d 407, 417-418.) Here, Defendant has not met the burden of showing how the matters of examination or document production are privileged or burdensome.

The Court finds that Defendant has not validly objected to Plaintiff’s Notice of Deposition and matters of examination and document production. Accordingly, Plaintiff’s Motion to Compel Defendant’s Person(s) Most Knowledgeable and Custodian(s) of Records for deposition is GRANTED.

B. Motion for Sanctions

“If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in¿Section 2020.240.” CCP § 2025.440(b). “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with¿Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2025.450(g)(1)

Given that Defendant failed to appear at the Noticed Deposition and failed to provide alternative dates, the Court finds that Defendant did not act with substantial justification when it failed to appear at the Deposition. Accordingly, sanctions are appropriate.

Plaintiff requests monetary sanctions in the amount of $2,335.00 against Defendant and its counsel of record, Wilson Turner Kosmo LLP. Plaintiff’s hourly rate is $350.00 per hour. (Davina Decl. ¶ 9(a).) Plaintiff’s counsel asserts he spent 3.0 hours drafting the motion, preparing the separate statement, the proposed order, notice and declaration. Plaintiff’s counsel also anticipates spending an additional 2.0 hours reviewing Defendant’s Opposition and drafting a reply, plus two additional 2.0 hours attending the scheduled hearing. Plaintiff also requests $60.00 for the filing fee.

Given that Defendant’s Opposition is brief and remote appearance for the hearing is an option, the Court awards monetary sanctions in the amount of $1,050.00 for 3.0 hours of work, plus $60.00 in filing costs, for a total of $1,110.00.

Conclusion

Plaintiff’s Motion to Compel the Deposition of Defendant Nissan North America, Inc.’s Person(s) Most Knowledgeable and Custodian(s) of Records is GRANTED. The PMK must be produced for deposition within 30 days.

Plaintiff’s request for sanctions in the amount of $1,110.00 against Defendant and it counsel for record, Wilson Turner Kosmo LLP is GRANTED.

Moving Party to give Notice.

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