Motion Compel

Cal. Super. - 6th Dist.March 26, 2021

SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381404 Santa Clara - Civil Squire Patton Boggs (US) LLP Sean P. Conboy (State Bar No. 214487) sean.conb0y@squirepb.com Paul Czer (State Bar N0. 32985 1) paul.czer@squirepb.com 555 South Flower Street, 3lst Floor Los Angeles, CA 90071 Telephone: +1 213.624.2500 Facsimile: +1 213.623.4581 Attorneys for Defendant A. Villanue Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/23/2021 2:45 PM Reviewed By: A. Villanueva Case #21 CV381404 Envelope: 7117900 VOLKSWAGEN GROUP OF AMERICA, INC. and STEVENS CREEK VOLKSWAGEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA MYLNA T. DELMUNDO and ANGELITO DELMUNDO, Plaintiffs V. VOLKSWAGEN GROUP OF AMERICA, INC; STEVENS CREEK VOLKSWAGEN; and DOES 1 through 10, inclusive, Defendants. -1- Case N0. 21CV381404 DEFENDANT VOLKSWAGEN GROUP 0F AMERICA, INC.’S NOTICE 0F MOTION AND MOTION T0 COMPEL PLAINTIFF MYLNA T. DELMUNDO’S REMOTE DEPOSITION BY DECEMBER 1, 2021, 0R 0N A DATE THAT THE COURT OTHERWISE DEEMs APPROPRIATE; REQUEST FOR SANCTIONS AGAINST PLAINTIFF AND HER COUNSEL IN THE AMOUNT 0F $3,140.00 [Concurrentlyfiled with Declaration ofPaul Czer and [Proposed] Order] Date: Time: Dept. : Action Filed: March 26, 2021 VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION O1 0-9249-7035/1 IAMERICAS 2 9:00am 1-06-2022 SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on at in [Department] of the above- entitled Court, Defendant Volkswagen Group 0f America, Inc. (“VWGOA” or “Defendant”) will, and hereby does, move for an order compelling PlaintiffMylna T. Delmundo (“Plaintiff’) t0 attend a deposition by remote electronic means by December 1, 2021, 0r a date that the Court otherwise deems appropriate, and an order for sanctions against Plaintiff and her counsel of record. This Motion is made pursuant to pursuant t0 Code 0f Civil Procedure section 2025.450 on the grounds that Plaintiff failed t0 appear at a deposition mutually agreed upon by Defendant and Plaintiff, and failed to meet and confer in good faith regarding dates of availability. This Motion is based 0n this Notice, the following Memorandum of Points and Authorities, the Declaration of Paul Czer With accompanying exhibits filed and served herewith, and on such other oral argument and evidence 0fWhich the Court may take notice at the hearing. Dated: August 23, 2021 Squire Patton Boggs (US) LLPW Paul Czer Sean P. Conboy Attorneys for Defendants VOLKSWAGEN GROUP OF AMERICA, INC. and STEVENS CREEK VOLKSWAGEN -2- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS 1-6-22 9:00am 2 SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION PlaintiffMylna T. Delmundo (“Plaintiff”) is abusing the discovery process. Despite Defendant Volkswagen Group of America, Inc.’s (“VWGOA” or “Defendant”) extensive efforts t0 resolve the issue in good faith, including taking Plaintiff s deposition Via remote electronic means on a date the parties mutually agreed t0 beforehand, Plaintiff has failed t0 appear at a deposition in her own easel Furthermore, Plaintiff’ s belated communications and dilatory tactics appear to be an attempt t0 string Defendant along Without ever appearing at a deposition in order to withhold relevant evidence and prejudice Defendant’s ability to prepare for trial. As such, this Court should grant Defendant’s motion t0 compel Plaintiff s deposition by remote electronic means by December 1, 2021, 0r a date that the Court otherwise deems appropriate. The Court should also impose monetary sanctions to address Plaintiff” s behavior. II. BACKGROUND On March 26, 2021, Plaintiffs Mylna T. Delmundo and Angelito Delmundo (“Plaintiffs”) filed this breach of warranty action alleging defects with their 2018 Volkswagen Tiguan (the “Subject Vehicle”). (Declaration 0f Paul Czer (“Czer Decl.”) 11 2.) On June 4, 2021, Defendant VWGOA noticed PlaintiffMylna T. Delmundo’s remote deposition for June 23, 2021 at 10:00am. (Czer Decl., 1] 3, EX. A.) Plaintiff objected t0 the noticed deposition date, but provided n0 alternative dates 0f availability. (Czer Decl., fl 4, EX. B.) On June 23, 2021, Plaintiff Mylna T. Delmundo did not appear for her deposition, and a Certificate 0fNon-Appearance was taken. (Czer Decl. 1] 5, EX. C.) On June 24, 2021, Defense Counsel sent correspondence t0 Plaintiffs’ Counsel t0 obtain mutually convenient dates for Plaintiffs’ depositions. (Czer Decl., 11 6, EX. D.) On July 7, 2021, having heard no response from Plaintiffs’ counsel, Defense Counsel sent a follow up correspondence t0 Plaintiffs’ Counsel regarding Plaintiffs’ availability for their respective 1 VWGOA is aware that Plaintiffs and VWGOA have agreed t0 Plaintiffs’ deposition dates on October 8, 2021, and VWGOA has served Amended Notices 0f Deposition for both Plaintiffs for October 8, 2021. If Plaintiffs’ October 8, 2021 depositions both go forward and both Plaintiffs actually appear for their respective depositions, then both Motions to Compel will be withdrawn. However, if the depositions do not go forward as scheduled 0n October 8, 202 1 , then the Motions to Compel Will not be withdrawn. -3- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 depositions. (Czer Decl. 11 7, EX. D.) On July 7, 2021, Plaintiff’ s Counsel responded t0 Defense Counsel’s follow up correspondence and inquired whether Defense Counsel had dates for VWGoA’s PMQ’s deposition. However, Plaintiffs’ counsel did not provide dates for Plaintiffs’ depositions. (Czer Decl., fl 8, EX. D.) On July 7, 2021, Defense Counsel responded t0 Plaintiffs’ Counsel’s July 7, 2021 correspondence and informed him that Defense Counsel was not aware that Plaintiffs’ Counsel was looking for VWGoA’s PMQ’S availability for deposition, but would contact VWGOA for their availability. (Czer Decl., 1] 9, EX. D.) On July 12, 2021, Defense Counsel sent Plaintiffs’ Counsel seven (7) dates for VWGoA’s PMQ’s deposition, and again requested that Plaintiffs’ Counsel provide dates for Plaintiffs’ deposition. (Czer Decl., 1] 10, EX. D.) On July 19, 2021, Defense Counsel sent a follow up correspondence to Plaintiffs’ Counsel regarding VWGOA’S offer 0f seven dates for VWGOA’S PMQ’s deposition and again requested dates for Plaintiffs’ depositions. (Czer Decl., 1] 11, Ex. D.) On July 20, 2021, Plaintiffs’ Counsel responded With Plaintiffs’ dates of availability. (Czer Decl., 11 12, EX. D.) On July 21, 2021, Defendant served Amended Notices 0f Deposition for both Plaintiffs. PlaintiffMylna T. Delmundo’s deposition was scheduled for October 8, 2021 at 10:00am - Which was one of the dates that Plaintiff offered? III. ARGUMENT A. Applicable Law Regarding Discoverable Information If after service of a deposition notice a party t0 the action fails t0 appear for examination, the party giving the notice may move for an order compelling the deponent’s attendance and testimony. (Code CiV. Proc. § 2025.450(a).) California law allows every party to an action to take depositions as a matter 0f right. (See Greyhound v. Superior Court (1961) 56 Cal. 2d 355, 388; see also Kramer v. Superior Court (1965) 237 Cal. App. 2d 753, 755.) T0 effectuate this right, Code 0f Civil Procedure section 2025.280 provides, in pertinent part, that: (a) the service 0f a deposition notice under Section 2025.240 is effective t0 require any deponent Who is a party t0 the action 0r an officer, director, managing agent, 0r employee of a party t0 attend and t0 testify, 2 If Plaintiffs’ October 8, 2021 depositions both go forward and both Plaintiffs actually appear for their respective depositions, then both Motions to Compel Will be withdrawn. However, if the depositions do not go forward as scheduled on October 8, 2021, then the Motions to Compel will not be withdrawn. -4- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as well as t0 produce any document or tangible thing for inspection and copying. “A party deponent Lall appear at the deposition in person and be in the presence 0f the deposition officer.” (Code Civ. Proc. § 2025.310(b), emphasis added). If an adverse party fails to comply with a timely served deposition notice, the deposing party may move for an order compelling such attendance and testimony. (Code Civ. Proc. § 2025.450; see also Leko v. Cornerstone Building Inspection Service (2001) 86 Cal. App. 4th 1109, 1124.) Further, the scope of discovery is broad and n0 undue restrictions should be placed 0n discovery. “Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subj ect matter involved in the pending action . . . if the matter either is itself admissible in evidence 0r appears reasonably calculated t0 lead t0 the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim 0r defense of the party seeking discovery...” (Code Civ. Proc. § 2017.010.) Courts have construed the discovery statutes broadly, so as t0 uphold the right t0 discovery Wherever possible. (Greyhound Corp. v. Sup. Ct. (1961) 56 Cal. 2d 355, 377-78; Emerson Elec. C0. v. Sup. Ct. (1997) 16 Cal. 4th 1101, 1108 (“Our conclusions in Greyhound simply apply equally t0 the new discovery statutes enacted by the Civil Discovery Act 0f 1986 Which retain the expansive scope 0f discovery.”).) For discovery purposes, information is t0 be regarded as “relevant to the subj ect matter” if it might reasonably assist a party in evaluating the case, preparing for the trial or facilitating settlement. (Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 161 1; Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546.) “Any doubt is generally resolved in favor of permitting discovery, particularly Where the precise issues in the case are not clearly established.” (Colonial Life & Acc. Ins. C0. v. Sup. Ct. (1982) 31 Cal. 3d 785, 790.) B. Good Cause Exists For The Court T0 Grant This Motion and Compel Plaintiff’s Deposition Defendant is entitled to take Plaintiff s deposition as a matter of right. (See Greyhound, 56 Cal. 2d at 388; Kramer, 237 Cal. App. 2d at 755.) Plaintiff failed t0 appear for her deposition 0n the date that it was properly noticed for. (Czer Decl., 1N 3-5, EXS. A, B, and C.) After meeting -5- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and conferring With Plaintiff” s Counsel in June and July 2021, and deciding on a mutually agreeable date, Defendant served its Amended Notice 0f Deposition 0n Plaintiff for October 8, 2021. (Czer Decl., W 6-13, Exs. D & E.) Plaintiff’s deposition was noticed three months in the filture, and VWGOA anticipates that neither Plaintiff Will show up for their respective deposition. Plaintiff is attempting t0 string along Defendant Without appearing at a deposition in order to withhold relevant evidence, cause unnecessary delay, and prejudice Defendant’s ability t0 prepare for trial. This behavior is not only unprofessional, but sanctionable, and leaves Defendant n0 choice but to seek the Court’s assistance. It is imperative that Defendant be permitted t0 take Plaintiff s deposition in this case, and Plaintiff does not have the right t0 control the time of Defendant’s discovery efforts. Plaintiff filed this lawsuit. Plaintiff is in the unique position t0 speak to her experiences With, and the condition 0f, the subj ect vehicle. Plaintiff is also in the best position to testify regarding the subj ect vehicle’s purchase, use, and repairs. Plaintiff is thus the primary source of facts that are material t0 the Defendant’s case, especially since the subject vehicle cannot be inspected as it is n0 longer in Plaintifl’s possession. Defendant Will be severely prejudiced if it is not able to depose Plaintiff prior to trial and is limited t0 whatever Plaintiff” s testimony would be 0n the stand. Considering Plaintiff s failure to appear at the properly noticed deposition date and the likelihood that Plaintiff will not appear for her deposition 0n the mutually agreed-upon date 0f October 8, 2021, good cause exists for this Court t0 compel Plaintiff’s attendance at a deposition by remote electronic means by December 1, 2021, or a date that the Court otherwise deems appropriate. Without the Court’s intervention, Defendant Will not be able to depose Plaintiff prior t0 trial, Will be deprived 0f properly requested and necessary discovery, and will be severely prejudiced in its trial preparation. C. Plaintiff Has Refused to Meet and Confer in Good Faith Regarding the Deposition Defendant VWGOA has more than fiJIfilled its statutory obligation t0 make a reasonable and good faith attempt t0 meet and confer on a mutually agreeable date for Plaintiff s deposition. (Code Civ. Proc. § 2016.040.) On multiple occasions, Defendant’s Counsel has sent numerous correspondence t0 Plaintiff’ s Counsel t0 obtain a mutually convenient date for Plaintiff” s -6- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deposition, Defendant has provided a meet and confer declaration describing these efforts pursuant t0 Code 0f Civil Procedure section 2025.450(b)(2). In contrast, despite Defendant’s multiple attempts to resolve the issue in good faith, including Defendant’s Willingness t0 take Plaintiff’ s deposition Via remote electronic means on a mutually agreed upon date, Plaintiff has failed to appear at the deposition. Furthermore, Plaintiff” s belated notice and dilatory tactics appear t0 be an attempt t0 string Defendant along Without ever appearing at a deposition in order t0 withhold relevant evidence and prejudice Defendant’s ability t0 prepare for trial. It is therefore evident that Plaintiff has failed to meet and confer in good faith regarding the deposition. Plaintiff is therefore abusing the discovery process and impeding Defendant’s right to investigate facts material to this case. Defendant is left With n0 choice but t0 seek a Court order compelling Plaintiff’s deposition attendance and testimony pursuant t0 Code of Civil Procedure section 2025.450. D. Plaintiff and Plaintiff’s Counsel Should be Sanctioned Monetary sanctions are appropriate when a party fails t0 submit to an authorized method 0f discovery. (Code CiV. Proc. § 2023.010(d).) Monetary sanctions are also warranted When a party has failed t0 confer With an opposing party 0r attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (Code CiV. Proc. § 2023.010(i).) Monetary sanctions are mandatory When a party unsuccessfully opposes a motion t0 compel, and there is n0 substantial justification or other circumstances make the imposition 0f the sanction unjust. (Code CiV. Proc. § 202548003.) Here, Plaintiff has failed t0 meet and confer in a reasonable and good faith attempt t0 informally resolve the discovery dispute at issue. Despite Defendant’s willingness t0 take Plaintiff s deposition Via remote electronic means 0n a mutually agreed upon date, Plaintiff refused to appear for a deposition in her own case. In contrast, Plaintiff’ s belated communications and dilatory tactics appear t0 be an attempt t0 string Defendant along without ever appearing at a deposition in order to withhold relevant evidence and prejudice Defendant’s ability to prepare for trial. This cannot suffice as a "reasonable and good faith attempt" t0 informally resolve the discovery dispute. The -7- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court should therefore sanction such behavior. (Code CiV. Proc. § 2023.010(i).)) There is n0 substantial justification for Plaintiff’s conduct. Defendant offered t0 conduct the deposition through Videoconferencing and conduct the deposition 0n a date three months in the future precisely t0 alleviate any concerns about convenience and/or related t0 the COVID-19 pandemic. However, based on past behavior by Plaintiff s counsel, it is likely that Plaintiff will n_ot appear for her deposition 0n the mutually agreed upon date, demonstrating that their true motivation is obstruction. The Court should not tolerate this abuse 0fthe discovery process and should sanction Plaintiff to deter such behavior in the future. (Code CiV. Proc. § 2025.4800).) For the foregoing reasons, Defendant requests an order 0f sanctions against Plaintiff and her counsel of record in the amount 0f $3,140, jointly and severally.3 (Czer Decl. 1] 14.) IV. CONCLUSION For the above reasons, Defendant VWGOA respectfully requests that the Court enter an order compelling the attendance 0f Plaintiff to a deposition by remote electronic means by December 1, 2021, 0r 0n a date that the Court otherwise deems appropriate. Defendant also requests an order of sanctions in the amount 0f $3,140 against Plaintiff and her counsel of record. Dated: August 23, 2021 Squire Patton Boggs (US) LLP Byiwf Sean P. Conboy Paul Czer Attorneys for Defendants VOLKSWAGEN GROUP OF AMERICA, INC. and STEVENS CREEK VOLKSWAGEN 3 To be clear, VWGOA is seeking one set of sanctions against both Plaintiffs in connection with the filing of both motions to compel for a combined total of $3,140. -8- VWGOA’S NOTICE 0F MOTION AND MOTION To COMPEL PLAINTIFF MYLNA T. DELMUNDO’S DEPOSITION 010-9249-7035/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 27S Battery Street, Suite 2600 San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE (Pursuant t0 California State Law) The undersigned certifies and declares as follows: I am a resident of the State of California and over 18 years of age and am not a party t0 this action. My business address is 555 South Flower Street, Suite 3100, Los Angeles, CA 90071, Which is located in the county where any non-personal service described below took place. On August 23, 2021, a copy of the following document(s): DEFENDANT VOLKSWAGEN GROUP 0F AMERICA, INC.’S NOTICE 0F MOTION AND MOTION T0 COMPEL PLAINTIFF MYLNA T. DELMUNDO’S REMOTE DEPOSITION BY DECEMBER 1, 2021, 0R 0N A DATE THAT THE COURT OTHERWISE DEEMS APPROPRIATE; REQUEST FOR SANCTIONS AGAINST PLAINTIFF AND HER COUNSEL IN THE AMOUNT 0F $3,140.00 was served on: Gregory Sogoyan, Esq. Attorneysfor Plaintiff Harjap Singh Malik MYLNA T. DELMUNDO and Neal Butala ANGELITO DELMUNDO STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Service was accomplished as follows. E By U.S. Mail, According t0 Normal Business Practices. On the above date, at my place 0f business at the above address, Isealed the above document(s) in an envelope addressed to the above, and I placed that sealed envelope for collection and mailing following ordinary business practices, for deposit with the U.S. Postal Service. I am readily familiar with the business practice at my place 0f business for the collection and processing of correspondence for mailing With the U.S. Postal Service. Correspondence s0 collected and processed is deposited the U.S. Postal Service the same day in the ordinary course 0f business, postage fully prepaid. I declare under penalty 0f perjury under the laws of the State of California that the above is true and correct. Executed on August 23, 2021, at Los Angeles, California. WWWm” Martha Kalenderian 4401 1 1 .0362] 01 0-9242-8098/1 /AMER|CAS