Judge: Yolanda Orozco, Case: 21STCV34189, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV34189    Hearing Date: March 6, 2023    Dept: 31

MOTION TO COMPEL DEPOSITION ATTENDANCE OF PMQ

 AND CUSTODIAN OF RECORDS  

TENTATIVE RULING 

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person(s) Most Qualified and Custodian(s) of Record is GRANTED.   

The Court GRANTS sanctions against Defendant’s counsel of record in the amount of $792.56

Background 

On September 15, 2022, Plaintiff Hermelina Alvarez filed a Complaint against Defendant Kia America, Inc. and Does 1 to 10. 

The operative First Amended Complaint alleges causes of action for: 

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

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

3)     Fraudulent Inducement – Concealment; and

4)     Fraudulent Inducement- Misrepresentation. 

On November 04, 2022, Plaintiff filed this instant motion to Compel the Deposition Attendance of Kia’s Person Most knowledgeable and Custodian of Records. 

Defendant filed opposing papers on February 21, 2023. 

Plaintiff filed a reply on February 27, 2023. 

Legal Standard 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿¿¿¿¿ 

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)¿¿¿¿¿ 

A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).) 

Discussion 

Motion to Compel Deposition Attendance of PMQ and Custodian of Records  

Plaintiff seeks an order compelling Defendant Kia to produce a Person(s) Most Qualified (PMQ) and Custodian of Records.

Plaintiff asserts that on September 12, 2022, Plaintiff served Defendant with a Deposition Notice for Kia’s PMQ and the notice identified fifty-five (55) matters of examination and twenty-nine (29) requests for document production. (See Separate Statement; Kreymer Decl. ¶ 3, Ex. A.) The deposition was unilaterally noticed for October 06, 2022, put included a letter requesting that Plaintiff provide alternative dates by September 30, 2022. (Kreymer Decl. Ex. A.) Plaintiff tried to confirm the alternative dates for Defendant’s PMQ deposition on September 12, 2022. (Kreymer Decl. Ex. B.) Defendant served a Response to Plaintiff’s deposition stating that no witness would be produced for October 06, 2022 and provided no alternative dates. (Kreymer Decl. Ex. C.) On October 06, 2022, Defendant’s PMK failed to appear at the deposition.

On October 7, 2022, October 12, 2022, October 18, 2022, October 21, 2022, October 26, 2022, and October 28, 2022, Plaintiff sent follow-up emails to Defendant asking for alternative dates for the PMQ deposition before filing this Motion on November 04, 2022. (Kreymer Decl. Ex. B.)

Defendant now asserts that Plaintiff’s Motion should be denied because it served timely valid objections under Code of Civil Procedure section 2025.410 and has now offered a deposition date of May 4, 2023. (Ourkhan Decl. ¶ 7.)

First, any objections to the deposition notice must be based on an error or irregularity in the deposition notice. (Code Civ. Proc., § 2025.410 subd. (a).) Second, objections to deposition notice do not stay the taking of the deposition unless the party moves for an order staying the deposition or quashing the deposition notice. (Code Civ. Proc., § 2025.410.) Third, if Defendant objected to the number of categories of testimony, it could have raised the issue by responding to Plaintiff’s meet and confer efforts or moved for a protective order to limit the number of categories or the scope of discovery.  (Code Civ. Proc., § 2025.410.) The fact that Defendant objects to the propounded discovery is not a basis for failing to produce its PMQ and Custodian(s) of Record for deposition.

The Court is cognizant that Kia has a backlog of deposition requests and finding an available date for the deponent is difficult. (Ourkhan Decl. ¶ 6.) However, it should not have taken the filing of this Motion for Defendant to provide a deposition date. Meet and confer correspondence between the parties fails to show that Defendant requested an extension to try to find alternative deposition dates or provided a date for when Defendant would know what dates its PMQ was available.

The fact that Kia receives multiple deposition notices in other lemon law cases does not excuse Kia’s failure to provide a deposition date here. Had Kia been diligent in providing dates, regardless of how far into the future the deposition date is set, there would be good cause to deny Plaintiff’s Motion. However, the fact that Kia failed to provide any dates is a violation of discovery principles and warrants sanctions.   

Based on the foregoing, the Motion is GRANTED.   

Request for Sanctions   

Plaintiffs properly noticed their request for sanctions against Defendants and their Counsel of Record in the amount of $1,765.00. (Code Civ. Proc., § 2023.040.) 

A law clerk with a billing rate of $175.00 per hour spent three (3) hours drafting this motion, separate statement, proposed order, notice of motion, and declaration, totaling $525.00. (Kreymer Decl. ¶ 10(a).) Plaintiff’s counsel’s hourly billing rate is $295.00 per hour and anticipates spending three (3) hours reviewing Defendant’s opposition and drafting a reply, totaling $590.00 in fees. (Id. ¶ 10(b).) Plaintiff’s Counsel anticipates spending an additional two hours preparing for an attending the hearing. (Id. ¶ 10(c).)

The Court agrees that the fact Kia failed to provide availability dates for the deposition notice warrants sanctions against Kia’s counsel of record. However, the amount billed is excessive. The Court credits Plaintiff’s law clerk with 2.0 hours of work billed at a rate of $175.00 per hour ($350.00.) and Plaintiff’s counsel with 1.5 hours of work billed at a rate of $295.00 ($737.50), totaling $792.56 in monetary sanctions against Kia’s counsel of record. 

Conclusion 

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person(s) Most Qualified and Custodian(s) of Record is GRANTED.   

The Court GRANTS sanctions against Defendant’s counsel for record in the amount of $792.56 

Moving party to give notice.