Judge: Yolanda Orozco, Case: 21STCV39005, Date: 2023-01-24 Tentative Ruling

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Case Number: 21STCV39005    Hearing Date: January 24, 2023    Dept: 31

MOTION TO COMPEL DEPOSITION ATTENDANCE OF PMK

 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 for record in the amount of $797.50. 

Background 

On October 22, 2021, Plaintiffs Ismael Rivera Ocampo and Martha Graciela Ocampo filed a Complaint against Defendant Kia America Inc. (“Kia”) and Does 1 to 10 for violations of the Song-Beverly Act.

On September 29, 2022, Plaintiffs filed a Motion to Compel Kia’s Person Most Knowledgeable (PMK) and Custodian of Records.

Kia filed opposing papers on January 10, 2023.

Plaintiffs filed a reply on January 17, 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 PMKs and Custodian of Records

On August 04, 2022, Plaintiffs served Defendant with a Notice of Deposition of Defendant’s Person(s) Most Knowledgeable (“PMK”) and Custodian(s) of Records. (Kreymer Decl. ¶ 3, Ex. A.) The Notice of Deposition identified twenty-four (24) matters for examination and twenty-three (23) requests for document production. (Kreymer Decl. Ex. A.)

The deposition was noticed for August 26, 2022, but despite the unilaterally set date, the Plaintiffs attached a letter to the notice asking Defendant’s counsel to provide alternative dates for the deposition by August 19, 2022, if counsel was unavailable on the noticed date. (Kreymer Decl. ¶ 4, Ex. A.)

On August 18, 2022, Defendant served a response and stated it would not produce a witness for the noticed deposition date and failed to provide alternative dates. (Kreymer Decl. ¶ 5, Ex. B.) Despite the Plaintiffs’ continued efforts to meet and confer, Kia’s PMK failed to appear for the August 26, 2022 Deposition. (Kreymer Decl. ¶¶ 6,7, Ex. C, D.) Plaintiffs’ meet and confer efforts continued on September 2, 2022, September 7, 2022, September 12, 2022, September 15, 2022, and September 22, 2022, prior to the filing of this instant Motion. (Kreymer Decl. ¶¶ 6,7, Ex. C.) Despite Defendant’s assurances that they would be working diligently to provide alternative dates, to date no date has been provided.

Plaintiff’s Motion is supported by a Separate Statement, showing good cause why the records requested are relevant to the deposition. Kia objected to some of the requests, on the basis of privilege while failing to state that the information that is not privileged would be provided. The Court sees no reason why Kia’s counsel cannot object to the specific requests for production at the deposition.

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 the Defendant objected to the number of categories of testimony, it could have raised the issue by responding to Plaintiffs’ meet and confer efforts or moved for a protective order to limit the number of categories.  (Code Civ. Proc., § 2025.410.

The Court is cognizant that Kia has a backlog of deposition requests for its PMK and that preparing for the depositions is time consuming. (Finley Decl. ¶ 4, Ex. B; Lewis Decl. Ex. B.)

The fact that Kia receives multiple deposition notices in other lemon law cases does not excuse Kia’s failure to provide a deposition date. 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 $2,420.00. (Code Civ. Proc., § 2023.040.)

Plaintiffs’ counsel’s billing rate is $295.00 per hour. (Kreymer Decl. ¶ 9.) Plaintiffs’ counsel spent 3.0 hours drafting this instant motion, including the separate statement and supporting declaration. (Id.) Plaintiffs’ counsel anticipates spending 3.0 hours reviewing Defendant’s opposition and drafting a reply, and 2.0 hours preparing for and attending the hearing on this Motion. (Id.) In addition, Plaintiffs seeks $60.00 for the filing fee. (Id.)

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 awards sanctions in the amount of $737.50 for 2.5 hours of work, plus the $60.00 filing fee, totaling $797.50. 

Conclusion 

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person(s) Most Qualified and Custodian(s) of Record is GRANTED. Defendant is ordered to provide a date for the deposition within 20 days. 

The Court GRANTS sanctions against Defendant’s counsel for record in the amount of $797.50. 

Moving party to give notice.