TONI LAWSON APANA ET AL VS FORD MOTOR COMPANY ET AL

Tentative Rulings

Case Number: BC658710    Hearing Date: March 06, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 10

Date: 3/6/20

Case No: BC 658710 Trial Date: August 31, 2020

Case Name: Lawson-Apana, et al. v. Ford Motor Company, et al.

MOTIONS TO COMPEL DEPOSITIONS (2)

Moving Party: Defendants Ford Motor Company and NGP Motors, Inc.

Responding Party: Plaintiffs Toni Lawson-Apana and Keith Apana, and

Third Party Witnesses Alexis Lunn and Ian Lunn

RELIEF REQUESTED:

Order compelling deposition of Ian Lunn, contempt, sanctions

Order compelling deposition of Alexis Lunn, contempt, sanctions

FACTUAL BACKGROUND:

Plaintiff Toni Lawson-Apana alleges that she leased a vehicle from defendant Sunrise Ford, which vehicle was manufactured by defendant Ford Motor Company, and which was equipped with a Power Liftgate System, an electrical opening and closing system. Plaintiff alleges that contrary to defendants’ representations regarding the subject vehicle’s safety and reliability, in April of 2015, while plaintiff was unloading water bottles from the rear of the subject vehicle, suddenly and without warning the Liftgate failed and came crashing down on plaintiff’s head. Plaintiff alleges that the force of the metal hitting plaintiff’s head was so severe that her teeth smashed together, her jaw locked and she suffered traumatic brain injury and other serious injuries.

Plaintiff’s spouse, plaintiff Keith Apana, alleges a cause of action for loss of consortium.

ANALYSIS:

Defendants seek orders compelling the depositions of two third parties, Alexis and Ian Lunn, who are the niece and nephew of plaintiff Toni Lawson-Apana. Defendants argue that these witnesses have discoverable information pertaining to this matter. Ian Lunn was evidently an eyewitness to the accident, as plaintiff has testified Ian Lunn was at the back of the vehicle with plaintiff, and the hatch hit Ian Lunn before allegedly falling on plaintiff. Alexis Lunn was actually living with plaintiffs before, at the time, of and after the incident, so has information concerning the scope of the damages, plaintiff’s recovery, and any alleged changes in the relationship between plaintiffs after the accident in connection with the loss of consortium claim.

Defendants evidently served subpoenas, which have not been provided to the court, and the deponents appeared for their depositions on September 16, 2019. The opposition submits the actual transcripts of those depositions, which indicate that the deponents appeared, with an attorney they brought to represent them, and counsel for defendants objected that counsel had not

made an appearance in this matter as attorney of record for plaintiffs, then served another subpoena for a deposition to go forward on September 30, 2019 and would not conduct the deposition with counsel for the witnesses present. [See Exs. 1, 2]. Counsel for the witnesses indicated that he did not need to be counsel of record for plaintiffs to represent third party witnesses at deposition, and stated on the record some version of:

“SHE’S RESERVING ALL HER RIGHTS TO OBJECT. YOU’RE ENTITLED TO ONE DEPOSITION. SHE’S READY TO GO WITH HER DEPOSITION. IF YOU DON’T WANT TO TAKE IT RIGHT NOW, THAT’S UP TO YOU.”

[Ex. 1, p.8:11-14].

Objections to the deposition subpoenas for September 30, 2019 were evidently then served, but those are also not provided to the court. It is not clear under what legal authority these motions are brought.

CCP § 2020.220(c) provides that

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service

(1) Personal attendance and testimony, if the subpoena so specifies.

(2) Any specified production, inspection, testing and sampling...”

The deponents evidently personally attended and were prepared to testify.

The motions cite to CCP § 2020.020, which does not appear to provide any remedy here, but provides the scope of authority of a deposition subpoena:

“A deposition subpoena may command any of the following:

(a) Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310).

(b) Only the production of business records for copying, under Article 4 (commencing with Section 2020.410).

(c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).”

The motions seek sanctions under CCP § 2020.240, which provides:

“A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.”

There has been no disobedience of the first subpoena, as the deponents personally attended. As to the second set of subpoenas, it is not clear what the objections were, but it appears from the opposition that the deponents are objecting that those subpoenas are improper, as they seek to have the deponents appear for second depositions without an order of the court.

Plaintiffs rely on CCP § 2025.610:

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent. (b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”

It does appear here that counsel for defendants had no basis for not proceeding with the depositions when the deponents appeared and were prepared to testify, and the moving papers do not submit any authority under which the deponents were not entitled to have an attorney of their choice present to defend them in the depositions. There is no authority under which an attorney for a third-party witness must be an attorney of record in the matter.

Defendants seem to argue that the deposition was properly stayed to move for a protective order with respect to counsel attending the deposition. This does not appear clearly from the transcript. In any case, evidently defendants did file on September 26, 2019 an ex parte application for an order to continue trial, which makes reference to a concurrently filed application for protective order prohibiting non-retained counsel from attending depositions, but that ex parte application was evidently never filed with the court. Defendants indicate that the motion was not argued because plaintiffs had filed a substitution of attorney substituting counsel as their counsel of record, so the application for protective order was moot.

Defendants rely on CCP § 2025.420, which provides, in pertinent part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:…

(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.”

Defendants also rely on CCP § 2025.270 (d), which states:

“(d) On motion or ex parte application of any party or deponent, for good cause shown, the court may shorten or extend the time for scheduling a deposition or may stay its taking until the determination of a motion for a protective order under Section 2025.420.”

These motions were evidently never made to preserve the right to take the depositions after counsel for defendants voluntarily did not proceed with them. The matter is in an unfortunate posture, as counsel for defendants does not appear to have appropriately suspended the depositions to obtain a protective order, there has been no violation of the original subpoenas, and the second set of subpoenas appear appropriately objected to as seeking a second deposition without a required court order. It is not clear why this motion is not for that relief.

In addition, the motion has not cited any statute under which defendants would be entitled to the relief they seek.

Ordinarily, such a motion would be brought under CCP§ 2025.480, which provides, in pertinent part:

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

Again, the deponents did not fail to answer any questions here, and it is possible relief is not sought under this section because, as pointed out in the opposition, under subdivision (b):

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition and shall be accompanied by a meet and confer declaration under Section 2016.040.”

(Emphasis added).

The record here was completed on September 16, 2019. [See Exs. 1, 2]. This motion was not filed or served until January 8, 2020, which was well more than sixty days later. The motion here is denied as no relief is available on any of the grounds under which it is brought.

The opposition indicates that counsel for the witnesses (now plaintiffs’ counsel of record), has agreed to accommodate both depositions, conditioned on defendants paying for the two hours of time counsel for the witnesses wasted in traveling to and from and attending the initial depositions, and that the depositions be conducted on a date convenient for the deponents, with one deposition to take place at the office of counsel for the deponents and one at defendants’ counsel’s office.

It accordingly appears that the motion is being made, opposed, and maintained only for the purpose of determining whether either side is entitled to sanctions. The court encourages the parties to meet and confer and agree to a schedule for these depositions, as any motion for leave to take a second deposition would likely be granted by the court under these circumstances, and simply waste more time and resources.

Under CCP § 2025.610:

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is

not a party, may stipulate that a subsequent deposition be taken.”

(Emphasis added).

It is likely that the court would grant leave allowing defendants to take a second deposition of each of these two deponents pursuant to a properly noticed motion under CCP 2065.610(b)

Sanctions

With respect to sanctions, defendants seek sanctions under CCP § 2020.240, which provides:

“A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.”

(Emphasis added).

Under CCP section 1992, “A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” (Emphasis added).

While the California Supreme Court has noted that this is an impractical remedy (see New York Times v. Superior Court (1990) 51 Cal.3d 453, 464), this provision remains in the Discovery Act, and does not permit the recovery of sanctions in this action but requires a separate civil action. Moreover, as discussed above, it does not appear that the deponents disobeyed a subpoena in any manner described in Section 2020.220, which is quoted above. No sanctions are awarded to defendants.

Plaintiffs seek sanctions for misuse of the discovery process. Under CCP § 2023.030(a), “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....

CCP § 2023.010 provides that misuse of the discovery process includes “(b) Using a discovery method in a manner that does not comply with its specified procedures; (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense;…(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery…”

It is clear appear here that defendants conducted this discovery such that they did not comply with specified procedures, in effect, by refusing to go forward with depositions for which the opponents appeared as noticed and refusing to proceed with the questioning until their chosen counsel committed to becoming attorney of record for plaintiffs, other parties entirely. It also appears that defendants fully intended that the depositions would not proceed with counsel present until counsel substituted in as counsel of record, but caused the deponents to appear, when at least one deponent had taken a day off work to be there, and deponents were required to pay their counsel for the wasted time, causing unwarranted burden and expense. Sanctions are awarded to plaintiffs on this ground.

The sanctions sought are $3,400 (6 hours preparing motion, and traveling to deposition, .5 hour reviewing reply, 2 hours traveling to and attending hearing at $400 per hour). These sanctions are high, with the court awarding the reduced amount of $2,500 amounting to 6.25 hours of attorney time.

Plaintiffs also seek sanctions under CCP § 2025.480 (j), which is not a stated statute under which relief was sought, and CCP § 1987.2, which provides for the award of expenses with respect to an order “pursuant to motion made under subdivision (c) of Section 1987.1,” when Section 1987.1 is also not a statutory basis for the motion.

RULING:

Defendant Ford Motor Company and NPG Motors Inc.’s Motion to Compel Deposition of Alexis Lunn is DENIED. The deponent appeared for deposition pursuant to subpoena and has appropriately objected that the second subpoena calls for a second deposition without plaintiffs having obtained a court order for such a deposition.

Monetary sanctions sought in the moving papers are DENIED.

The parties are encouraged to meet and confer concerning a stipulation for scheduling a second deposition.

Defendant Ford Motor Company and NPG Motors Inc.’s Motion to Compel Deposition of Ian Lunn is DENIED. The deponent appeared for deposition pursuant to subpoena and has appropriately objected that the second subpoena calls for a second deposition without plaintiffs having obtained a court order for such a deposition.

Monetary sanctions sought in the moving papers are DENIED.

Monetary sanctions sought in the Omnibus Opposition are GRANTED. Monetary sanctions in the amount of $2,500.00 [$3,400 requested] are awarded in favor of third parties Ian Lunn and Alexis Lunn, and against Defendants Ford Motor Company and NPG Motors Inc, payable within 30 days. CCP §§ 2023.010(b)(c); 2023.030(a).

The parties are encouraged to meet and confer concerning a stipulation for scheduling a second deposition.

Case Number: BC658710    Hearing Date: February 21, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 5

Date: 2/21/20

Case No: BC 658710 Trial Date: March 30, 2020

Case Name: Lawson-Apana, et al. v. Ford Motor Company, et al.

MOTIONS TO COMPEL RESPONSES TO DISCOVERY (2)

(CCP § 2031.300, 2023.010 et seq)

Moving Party: Defendant Ford Motor Company

Responding Party: Plaintiff Toni Lawson-Apana

Plaintiff Keith Apana

RELIEF REQUESTED:

Responses to Request for Inspection Demands (Set No. Two) from each plaintiff

ANALYSIS:

The oppositions indicate that verified responses to the subject discovery were served on February 6, 2020.

This renders the motions moot.

This leaves the issue of sanctions, which are sought by the moving party.

With respect to document demands, under CCP section 2031.300(c), “the court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling…”

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Under CCP § 2023.010, misuse of the discovery process includes “(f) Making an evasive response to discovery.” Where there has been misuse of the discovery process, under CCP § 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2^nd Dist.) 223 Cal.App.3d 1429, 1436.

Under CRC Rule 3.1348(a):

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, plaintiffs failed to timely respond to an authorized method of discovery and defendant has submitted evidence showing that defendant has incurred expenses as a result of the conduct.

Plaintiffs in opposition argue that under the circumstances monetary sanctions should not be imposed, because plaintiffs’ former counsel was relieved as counsel on the date discovery responses were due, on April 26, 2019, and that plaintiffs were then in pro per for a period until current counsel substituted in on September 26, 2019. Counsel indicates the case file produced to current counsel was unorganized and counsel has only recently been able to scan, review and organize the documents. [Euredjian Decl. ¶ 6]. It is not clear how these circumstances justify shifting the cost of this motion, made necessary by the conduct of plaintiffs or their former counsel, to defendant. It also does not appear reasonable for counsel to have delayed so long in performing a case file review.

Plaintiffs also argue that the documents sought have no bearing on this case, and that the motion was brought eight and a half months after the responses were due. If plaintiffs believe the documents have no bearing, they should have timely responded to the discovery and objected on this basis. There is no statutory time limit within which a motion to compel responses must be filed, and it would appear that it was prudent to bring the motion now with the discovery cut off deadlines looming for a March 30, 2020 trial. Plaintiffs have failed to establish that circumstances would make the imposition of sanctions on plaintiffs unjust, and sanctions should be awarded.

The sanctions sought are $1,325 for both motions, which appear reasonable. The sanctions can be split between the motions.

RULING:

Defendant Ford Motor Company’s Motion to Compel Discovery from Toni-Lawson Apana is MOOT in light of the service of verified responses prior to the hearing.

Monetary sanctions in the amount of $662.50 [$1,325] plus costs of $60.00 for both motions requested] are awarded against plaintiff Toni Lawson-Apana, payable within 30 days. CCP §§ 2030.300(c), § 2023.010 (d), and 2023.030(a); CRC Rule 3.1030(a).

Defendant Ford Motor Company’s Motion to Compel Discovery from Keith Apana is MOOT in light of the service of verified responses prior to the hearing.

Monetary sanctions in the amount of $662.50 [$1,325 for both motions requested] plus costs of $60.00 are awarded against plaintiff Keith Apana, payable within 30 days. CCP §§ 2030.300(c), § 2023.010 (d), and 2023.030(a); CRC Rule 3.1030(a).