Diana Cibrian vs American Honda Motor Co Inc
Diana Cibrian vs American Honda Motor Co Inc
Case Number
23CV01268
Case Type
Hearing Date / Time
Mon, 05/19/2025 - 10:00
Nature of Proceedings
Motion: Compel Deposition of PMK, Prod of Docs, Sanctions
Tentative Ruling
Diana Cibrian v. American Honda Motor Co., Inc.
Case No. 23CV01268
Hearing Date: May 19, 2025
HEARING: Motion of Plaintiff Diana Cibrian to Compel Deposition of Defendant’s Person Most Knowledgeable; Request For Production of Documents at Deposition; Request for Monetary Sanctions
ATTORNEYS: For Plaintiff Diana Cibrian: Tionna Grace Carvalho, Anita J. Marks, Strategic Legal Practices
For Defendant American Honda Motor Co., Inc.: Spencer P. Hugret, Joshua Hartmann, Gordon Rees Scully Mansukhani, LLP
TENTATIVE RULING:
Plaintiff’s motion to compel deposition of defendant’s person most knowledgeable, production of documents at deposition, and request for monetary sanctions is granted in part and denied in part as follows:
- Unless otherwise mutually agreed to by the parties, or upon further order of the court, the deposition of American Honda Motor Company’s Person Most Knowledgeable shall take place on December 17, 2025, as agreed to in the Stipulation and Order filed on April 30, 2025.
- The motion for an order for the production of documents is denied, without prejudice, as premature.
- No monetary sanctions are imposed against any party.
Background:
This action commenced on March 27, 2023, by the filing of the complaint by plaintiff Diana Cibrian against defendant American Honda Motor Co., Inc. (“Honda”), alleging violations of the Song-Beverly Consumer Warranty Act related to a warranty contract, entered into on April 1, 2017, between plaintiff’ and Honda on a 2017 Honda Ridgeline vehicle. Plaintiff alleges several defects and non-conformities that Honda, and its authorized repair facility, failed to repair within a reasonable time to conform to the applicable warranties.
Honda answered the complaint on April 27, 2023, asserting a general denial and 25 affirmative defenses including the fifteenth affirmative defense of arbitration agreement.
On June 5, 2023, plaintiff served a Notice of Deposition of the Person Most Knowledgeable (“PMK”) for Honda and Demand to Produce Documents at Deposition. (Marks Decl., ¶ 17 & Exh. 5.) On August 15, 2023, Honda served its Objections to the Notice of Deposition of the PMK, stating that it would not produce the PMK at the date, time, and location set forth in the notice, but would produce the PMK at an agreeable date and time. (Marks Decl., ¶ 18.)
On October 26, 2023, plaintiff served an Amended Notice of Deposition for the Honda PMK and Demand to Produce Documents. (Marks Decl., ¶ 19 & Exh. 7.) On December 12, 2023, Honda served its Objections to the Notice of Deposition of the PMK, stating that it would not produce the PMK at the date, time, and location set forth in the notice, but would produce the PMK at an agreeable date and time. (Marks Decl., ¶ 20 & Exh. 8.)
On February 4, 2025, plaintiff served a Second Amended Notice of Deposition for the Honda PMK and Demand to Produce Documents. (Marks Decl., ¶ 21 & Exh. .) (Note: The declaration incorrectly identifies the notice as the First Amended Notice.) On February 12, 2025, Honda served its Objections to the Notice of Deposition of the PMK, stating that it would not produce the PMK at the date, time, and location set forth in the notice, but would produce the PMK at an agreeable date and time. (Marks Decl., ¶ 22 & Exh. 10.)
On February 3, 2025, plaintiff’s counsel sent an email to Honda’s counsel with availability for plaintiff’s deposition, and requested Honda’s availability by the end of the week. (Marks Decl., ¶ 23 & Exh. 11.) The email also requested a date from Honda’s counsel for the PMK deposition. (Ibid.) Honda’s counsel did not provide dates. (Ibid.)
Plaintiff now moves to compel the deposition of Honda’s PMK, requests an order that the PMK produce several categories of documents at the deposition, and requests sanctions.
Honda opposes the motion arguing that it is moot. Between April 25, 2025, and April 29, 2025, the parties met and conferred regarding the date for the PMK deposition and agreed to December 17, 2025. (Hartmann Decl., ¶ 5 & Exh. C.)
The court notes that on April 30, 2025, the parties filed a stipulation and order to continue trial and all related dates and deadlines. At page 1, lines 18-19, the parties acknowledged that they have agreed that the PMK deposition occur on December 17, 2025.
Analysis:
Declaration of Plaintiff’s Counsel
As an initial matter, the declaration of plaintiff’s counsel in support of the motion contains much improper material.
“We recognize that it is very common for [attorneys] to include argument in their declarations (we know it is done all the time, and we do not want to single out the trial lawyers in this regard), but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)
An attorney is competent to recite events occurring during the course of the litigation. An attorney’s declaration of what the client’s testimony would be, based on the attorney’s discussion with the client and an investigation of the facts, is not competent. (See Donnelly v. Ayer (1986) 183 Cal.App.3d 978, 984.)
The declaration consists of 653 pages including exhibits. Most of the declaration consists of matters of which plaintiff’s counsel would have no personal knowledge, legal argument, and matters that are completely irrelevant to the present motion. It quite clearly consists of cutting and pasting numerous arguments that plaintiff’s law firm improperly inserts into many of their motions. It is obvious that the arguments have not even been updated in a long time. For example, plaintiff’s counsel includes (as the court has seen it do in other declarations and motions) the case of Santana v. FCA US, LLC (2020) 56 Cal.App5th 334. The case is not identified by its current correct cite. Rather, it is identified by its WestLaw number and referred to as “recently issued.” (Marks Decl., ¶ 38.) The case is not recently issued. It is nearly five years old. This is just one of many examples that could be given.
In any future filings, counsel is expected to provide proper declarations, based on personal knowledge, that address the specific issues that are relevant to the matter at hand. Legal arguments, matters not based on personal knowledge, and irrelevant information should be excluded from declarations.
Compelling Deposition of Person Most Knowledgeable
“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)
“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010.)
“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)
Plaintiff’s deposition notice for Honda’s PMK appears to be compliant with the requirements set forth above.
Here, as noted, following the filing of the present motion, Honda has agreed to produce its PMK and the parties have agreed on a date for the deposition. In order to ensure that the deposition takes place as scheduled, the court will order that the deposition proceed on that date.
Production of Documents at Deposition
Plaintiff seeks an order that Honda be compelled to provide a further responses and production of documents to RFP Nos. 1-3, 7,9, 12, 17, 18, 20, 22, 24, 26, 28, 31, 32, 39, 40, 41, 46, 50, 52, 55, 57, 58, 75, 76, 83, 84, 85, 86, and 87.
Code of Civil Procedure section 2025.480 provides, in 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.
“(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.
“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice. . . .
“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.”
There are multiple deficiencies in plaintiff’s motion regarding the RFPs.
First, Honda is not required to produce any of the documents prior to the deposition of the PMK. Honda has up until the time of the PMK deposition to produce the documents. (see Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 584.) Therefore, the request for an order that Honda produce documents, prior to the deposition, is premature.
Further, plaintiff’s separate statement is not code compliant. California Rules of Court, rule 3.1345(c), provides:
“Contents of separate statement
“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include- -for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:
“(1) The text of the request, interrogatory, question, or inspection demand;
“(2) The text of each response, answer, or objection, and any further responses or answers;
“(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
“(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
“(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
“(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.” (Italics added.)
The court has discretion to disregard a nonconforming separate statement and to deny a motion to compel discovery for failure to comply with the requirements for a proper separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; see also Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [discussing plaintiff’s failure to adequately support a motion to compel discovery due to a nonconforming separate statement].)
The separate statement is 90 pages long and consists largely of generic discovery arguments that have obviously been cut and pasted from prior motions. Plaintiff first improperly includes 20 pages of “legal argument” before even getting to any of the areas of examination or RFPs. Then, when the separate statement finally gets to the RFPs, at page 52 of the separate statement, plaintiff fails to set forth any factual or legal reasons for compelling responses for most of the discovery. For example, for RFP No. 1, plaintiff does not include any “reasons to compel further response.” Then, as to following requests, plaintiff states: “Plaintiff incorporates by reference the reasons set forth under RFP No. 1, supra.” Thus, plaintiff improperly incorporates the non-existent reasons for RFP No. 1 into the following responses.
Next, plaintiff fails to provide any evidence that she conducted any sort of meaningful meet and confer, as required, regarding the responses to the RFPs.
“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040; italics added.)
“It is a central precept to the Civil Discovery Act of 1986 . . . that civil discovery be essentially self-executing. [Citation.] The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “ ‘an informal resolution of each issue.’ ” [Citations.] This rule is designed “ ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. . . .’ ” [Citation.] This, 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. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435.)
Plaintiff has not provided any evidence that she attempted an informal resolution of any of the issues she has with Honda’s written responses to the RFPs. She only provides evidence of attempts to schedule the deposition of the PMK.
The motion for an order to produce documents will be denied, without prejudice, as premature, and based on the non-conforming separate statement.
That being said, the court has reviewed the categories for examination, the RFPs, and the responses in their entirety. Without making a ruling at this time, the court notes that some of the categories and RFPs are not narrowly tailored to seek only information that is either admissible or reasonably calculated to lead to the discovery of admissible evidence. On the other hand, most of Honda’s objections appear to be without merit. At the deposition, the court expects that the parties will be able to work in good faith to avoid any post-deposition discovery motions. The firms for both sides are very experienced in Song-Beverly Act cases and, at this point, should be well versed on what is discoverable.
Monetary Sanctions
Plaintiff seeks monetary sanctions pursuant to Code of Civil Procedure section 2031.300. (Motion, p. 19, ll. 1-5.) That Code section is applicable when a party has failed to serve a timely response to RFPs. As noted above, Honda timely provided a written response and is not yet obligated to produce the requested documents.
Plaintiff provides no other statutory or legal basis for sanctions related to this motion. Without plaintiff providing a proper basis for imposing them, sanctions must be denied.