Case Name: Serrato v. FCA US, LLC, et al.
Case No.: 16-CV-295317

This is a lemon law action initiated by plaintiff Elizabeth Serrato (“Plaintiff”) against defendants FCA US LLC (“Defendant”) and Salinas Auto Center Association.

According to the allegations of the complaint (“Complaint”), Plaintiff purchased a 2012 Dodge Durango (the “Vehicle”) from Defendant. (Complaint, ¶¶ 4, 8.) The Vehicle was delivered to her with serious defects and later developed others, including problems with the Totally Integrated Power Module (“TIPM 7”). (Id. at ¶¶ 10, 13-15.) The TIPM 7 is a chief component of the Vehicle’s power distribution systems and consists of a computer, relays, fuses, and controls. (Id. at ¶ 11.) Due to the defective TIPM 7, the Vehicle had electrical malfunctions, jerked while being driven, had malfunctioning warning lights, and had an inoperable cruise control. (Id. at ¶ 14.) Defendant knew of the defects prior to selling the Vehicle to Plaintiff and did not disclose them. (Id. at ¶ 89.) Plaintiff brought the Vehicle to authorized facilities on several occasions for repair, but Defendant was unable to repair it to conform to the applicable warranties. (Id. at ¶¶ 94-98.)

Plaintiff asserts causes of action for violations of the Song-Beverly Consumer Warranty Act, fraud, and negligent repair.

The instant matter involves a discovery dispute. Plaintiff served a deposition notice on Defendant to depose its person most knowledgeable (“PMK”) and custodian of records, and for the production of numerous documents. (Morse Decl., ¶ 8; Exh. F.) Defendant subsequently served formal objections to the document demands and subjects for examination. (Id. at ¶ 9; Exh. H.) Defendant’s PMK could not attend on the noticed deposition date and Plaintiff’s counsel contacted Defendant’s counsel several times seeking an alternative date. (Id. at ¶¶ 10-13.) Defendant’s counsel did not immediately respond and Plaintiff served an amended notice of deposition with a later deposition date, to which Defendant again formally objected. (Ibid.) Defendant’s PMK once again could not attend deposition on the noticed date, and the parties were unable to agree on an alternative date. (Id. at ¶ 14.) As such, Plaintiff filed the instant motion to compel Defendant’s PMK and custodian of records to attend deposition and produce the requested documents. Plaintiff also requests an award of monetary sanctions.

Plaintiff brings this motion pursuant to Code of Civil Procedure sections 2025.450 (“Section 2025.450”) and 2025.480 (“Section 2025.480”). There are three aspects of this motion. Plaintiff requests an order compelling deposition attendance, compelling document production, and awarding sanctions. The Court will address each in turn below.

I. Deposition Attendance

Plaintiff seeks an order compelling Defendant’s PMK and custodian of records to attend deposition. With respect to this portion of the motion, Section 2025.450 is implicated, which authorizes a motion to compel a deponent’s attendance where he or she failed and/or refused to appear.
As a threshold matter, Defendant argues Plaintiff failed to adequately meet and confer prior to filing the instant motion. Defendant does not argue this motion should be denied on that basis. Instead, it argues Plaintiff’s request for sanctions should be denied due to her inadequate meet and confer efforts. The Court will nonetheless address Plaintiff’s meet and confer efforts as a preliminary matter since meeting and conferring is, in many circumstances, a precondition to filing a motion to compel.

Here, Plaintiff was not required under Section 2025.450 to meet and confer prior to filing this motion. That statute does not require the meeting party to meet and confer in circumstances where the deponent does not attend the deposition. Rather, Section 2025.450 provides a motion made pursuant thereto shall either be accompanied by a meet and confer declaration or a declaration stating the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Plaintiff’s attorney submitted a declaration stating she contacted Defendant to inquire about its nonattendance. (Morse Decl., ¶ 15.) Plaintiff therefore complied with the statute.

The record otherwise reflects that Plaintiff sufficiently met and conferred prior to filing this motion. To adequately meet and confer, the propounding party must make a reasonable and good faith attempt to informally resolve the discovery matters at issue. (Code Civ. Proc., § 2016.040.) This requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, in turn, “will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1435.) “A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . . the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id. at p. 1439.)

Defendant argues Plaintiff failed to adequately meet and confer because her counsel only pressed for deposition dates without attempting to reach a compromise. For context, Plaintiff’s attorney represents over 300 plaintiffs who filed similar lawsuits against Defendant. Counsel for both parties have different opinions on whether Defendant’s PMK must be deposed specifically in this case. On one hand, Defendant’s counsel maintains it is unnecessary for Plaintiff’s counsel to depose its PMK because he was already deposed approximately 30 times in connection with other pending cases. On the other hand, Plaintiff’s counsel insists his client is entitled to depose Defendant’s PMK and should not be required to rely on testimony from other unrelated cases. Defendant’s counsel attests he provided multiple proposed deposition dates, but Plaintiff’s attorney chose to schedule depositions in the other cases and not this one. Defendant’s counsel asserts Plaintiff’s counsel made no effort to cooperate, coordinate taking depositions in multiple cases at once, or find a reasonable alternative to conducting individual depositions in each case.

The Court is not persuaded that the evidence demonstrates Plaintiff insufficiently met and conferred with Defendant prior to filing this motion. Plaintiff’s attorney contacted Defendant’s counsel several times from April 2017 to September 2017 to discuss the scheduling of depositions. (Morse Decl., Exhs. F, I, J, M.) Counsel for both parties discussed conducting multiple depositions at once and the possibility of using Defendant’s PMK’s previous deposition transcripts in the case at bench. Plaintiff’s attorney rejected these ideas and stated his client was entitled to depose Defendant’s PMK because he may have information specific to her case. (Id. at Exh. F.) The fact Defendant’s counsel disagrees about the necessity of deposing his client’s PMK does not mean Plaintiff’s attorney failed to adequately meet and confer on that issue.

In addition, the evidence does not actually reflect Defendant’s counsel proposed alternative deposition dates and Plaintiff chose to schedule depositions for other unrelated cases instead of scheduling one in this case. In support of Defendant’s position that Plaintiff could have conducted a deposition in this case but chose not to, it submitted an e-mail listing five potential deposition dates ranging from September 22, 2017 to December 8, 2017 as available dates in all cases pending between Defendant and Plaintiff’s attorneys’ other clients. (Shepardson Decl., Exh. C.) When this e-mail was sent in September, trial was set for October 16, 2017. The proposed dates were therefore not feasible given the looming trial date and statutory discovery cut-off. (See Code Civ. Proc., § 2024.020 [discovery cut-off is 30 days prior to trial date].) Plaintiff’s counsel thus cannot be blamed for not choosing one of those dates to depose Defendant’s PMK in this case.

In sum, the record establishes Plaintiff sufficiently met and conferred with Defendant prior to filing this motion.

Turning to the merits of the motion, Section 2025.450, subdivision (a), provides that “[i]f 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 or to proceed with it, . . . the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” A party may assert a written objection based upon a defect in the deposition notice. (Code Civ. Proc., § 2025.410, subd. (a).) If a party objects on other grounds, the party must nevertheless appear for the deposition as noticed, unless the party files a motion to stay the taking of the deposition and quashing the notice or for a protective order. (See Code Civ. Proc., §§ 2025.280, subd. (a), 2025.410, subd. (c), 2025.420.) Based on these authorities, the moving party must show (1) he or she served the deponent with the notice; (2) no valid objection was asserted; and (3) the deponent failed to appear and the moving party inquired as to the nonappearance. (See Code Civ. Proc., § 2025.450, subd. (a); Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)

All prerequisites are met here. Plaintiff served a notice for the deposition to occur on August 23, 2017. (Morse Decl., ¶ 12; Exh. K.) Next, no valid objection was asserted. Code of Civil Procedure section 2025.410, subdivision (a) provides that “[a]ny 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 deposition date. Article 2 covers the requirements of noticing and conducting a deposition, such as when and when a deposition may be taken (Code Civ. Proc., §§ 2025.210, 2025.290), the contents of a deposition notice (Code Civ. Proc., § 2025.220), and the time limit for depositions (Code Civ. Proc., § 2025.290). None of the provisions of Article 2 relate to interposing substantive objections. Defendant objected to the deposition notice based on the scope of the matters for examination and the document demands, which are not objections contemplated by section 2025.410. (Morse Decl., Exh. L.) Thus, the substantive objections Defendant served did not excuse it from attending deposition. Last, Defendant’s PMK did not appear at the deposition and Plaintiff inquired as to the nonappearance. Because all requirements are met, Plaintiff’s motion to compel deposition attendance has merit.

Defendant’s argument in opposition does not support a contrary conclusion. Defendant contends the information sought is not necessary and conducting the deposition would be unduly burdensome, harassing, and oppressive because the parties may use the PMK’s deposition testimony from one of the previous 30 depositions conducted by Plaintiff’s counsel. Defendant avers all possible information has already been disclosed through previous depositions so conducting yet another deposition would yield no new information. Defendant also insists it is impossible to conduct a deposition in all 300 pending cases and it should not be required to do so. While the Court understands the practical problems at issue, they do not relieve Defendant of the statutory requirement to furnish its PMK for deposition, and Defendant cites no legal authority supporting the proposition it is not required to attend a deposition because testimony from a similar case may be used instead.

Accordingly, the motion is GRANTED to the extent Plaintiff seeks to compel the deposition attendance of Defendant’s PMK and custodian of records. Counsel shall meet and confer to agree on an acceptable deposition date and notify the Court of the agreed date, which shall be inserted into the order.

II. Document Production

Plaintiff seeks to compel the production of documents. Sections 2025.450 and 2025.480 govern this portion of the motion. Section 2025.450 states that if, after serving a deposition notice, the deponent fails to serve a valid objection and produce requested documents for inspection, the deposing party may move for an order compelling production. Similarly, Section 2025.480 provides that if a deponent fails to produce any document, the deposing party may move to compel production.

Plaintiff’s motion is problematic given the deposition has not taken place. The Civil Discovery Act contemplates that the responsive documents will be produced at the deposition. (See Code Civ. Proc., §§ 2025.280, 2025.450, 2025.480.) Here, the deposition has not yet occurred. In addition, although Defendant served formal objections prior to the deposition, the Civil Discovery Act does not anticipate deponents serving formal written objections to document production requests served with a deposition notice. Instead, a deponent may substantively object to production at the deposition itself. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016), ¶ 8:529.) It is therefore premature to compel the production of documents prior to the deposition.

In light of the above, to the extent Plaintiff seeks to compel the production of documents, the motion is DENIED without prejudice to her bringing such a motion in the event Defendant does not produce responsive documents at the deposition.

III. Request for Sanctions

Plaintiff requests an award of monetary sanctions against Defendant and its counsel pursuant to Section 2025.450, subdivision (j) and Section 2025.480, subdivision (g)(1), which provide that sanctions shall be imposed against any party who unsuccessfully makes or opposes a motion to compel a deponent to attend deposition and produce documents unless the party subject to sanctions acted with substantial justification or other circumstances would make imposing sanctions unjust.

Plaintiff substantially prevailed in bringing this motion. In addition, the Court finds Defendant did not act with substantial justification in opposing this motion and there are no circumstances that would make the imposition of sanctions unjust. While Defendant argues the Court should deny Plaintiff’s request for sanctions because she failed to adequately meet and confer prior to filing it, as discussed above, her meet and confer efforts were sufficient. Plaintiff is therefore entitled to an award of monetary sanctions.

Plaintiff requests monetary sanctions in the amount of $3,060.00, representing 12 hours of time at $250.00 per hour and a $60 filing fee. (Morse Decl., ¶ 18.) This request is problematic because it accounts for 7 hours of anticipated time for reading the opposition, preparing the reply, and appearing at the hearing. (Ibid.) The Court does not award sanctions for estimated expenses or expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564 [court may not award monetary sanctions for costs not yet incurred].) Next, the Court otherwise declines to award sanctions for the full 5 hours of time actually spent working on the motion as Plaintiff was only partially successful. Two and a half hours of attorney time is reasonable given the nature of the motion and Plaintiff’s partial success. Accordingly, Plaintiff’s request for monetary sanctions is GRANTED IN PART in the amount of $685.00 (2.5 hours x $250.00 + $60.00). Defendant shall pay this sanction to Plaintiff’s counsel within 20 calendar days written notice of entry of this Order.