Judge: Andrew E. Cooper, Case: 23CHCV03513, Date: 2024-05-13 Tentative Ruling

Case Number: 23CHCV03513    Hearing Date: May 13, 2024    Dept: F51

Dept. F-51

Date: 5/13/24

Case #23CHCV03513

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO COMPEL DEPOSITION

Motion filed: 3/22/24

MOVING PARTY: Plaintiffs Omar Haro Avila; and Monica Yescas (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendant Nissan North America, Inc. (“Defendant”)

NOTICE: ok¿¿ 

RELIEF REQUESTED: An order compelling the Person(s) Most Qualified (“PMQ”) for Defendant to appear in person to be deposed within 30 days. Plaintiffs also request monetary sanctions to be imposed against Defendant in the amount of $2,625.00.

TENTATIVE RULING: The motion is granted. Defendant is ordered to produce its PMQ to be deposed regarding all noticed categories, and to produce the documents specified in the deposition notice, on or before 5/12/24. The Court imposes $750.00 in monetary sanctions against Defendant.

BACKGROUND

Plaintiffs bring this action under the Song-Beverly Consumer Warranty Act (Civil Code § 1790 et seq.) for a vehicle they purchased on or around 8/28/22, for which Defendant issued the manufacturer’s express warranty. (Compl. ¶¶ 4, 7–9.) Plaintiffs allege that “the subject vehicle has suffered from nonconformity(s) to warranty to, including, but not limited to, acceleration, brake switch assembly, ECM, fuel pump assembly, and other defects” during the applicable warranty period. (Id. at ¶ 10.) Plaintiffs allege that they presented the vehicle for repair at an authorized repair facility, but the defects remain. (Id. at ¶¶ 11–12.)

On 11/16/23, Plaintiffs filed their complaint, alleging against Defendant the sole cause of action for Violation of Song-Beverly Consumer Warranty Act. On 12/29/23, Defendant filed its answer.

On 12/19/23, Plaintiffs served a notice of deposition of Defendant’s PMQ. (Decl. of Scott A. Sanchez ¶ 5.) On 1/9/24, Defendant served its responses and objections thereto. (Id. at ¶ 6.)

On 1/12/24, Plaintiffs served their first amended notice of deposition of Defendant’s PMQ. (Id. at ¶ 8.) On 1/25/24, Defendant served its responses and objections thereto. (Id. at ¶ 9.)

On 2/1/24, Plaintiffs served their second amended notice of deposition of Defendant’s PMQ. (Id. at ¶ 11.) On 2/23/24, Defendant served its responses and objections thereto. (Id. at ¶ 12.) However, Defendant failed to provide Plaintiffs with a date for the deposition. (Id. at ¶ 13.)

On 3/22/24, Plaintiffs filed the instant motion to compel the deposition of the Defendant’s PMQ. On 4/30/24, Defendant filed its opposition. On 5/6/24, Plaintiffs filed their reply.

ANALYSIS

A party may, upon proper written notice, obtain discovery by taking the oral deposition of any natural person, organization, partnership, association, or governmental agency. (Code Civ. Proc. §§ 2025.010, 2025.220.) A party deponent can be required to attend a deposition by service of a deposition notice on the party's attorney. (Code Civ. Proc. § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, … fails to appear for examination, … 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).)

A motion to compel a deposition must (1) “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice;” and (2) “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Id. at subd. (b).)

1.      Meet and Confer

Here, Plaintiffs’ counsel declares that on 1/9/24, 1/25/24, 3/1/24, 3/5/24, and 3/6/24, he and Defendant’s counsel met and conferred regarding the issues raised in the instant motion and about potential dates for the deposition. (Sanchez Decl. ¶¶ 5.) Accordingly, the Court finds that counsel has satisfied the meet-and-confer requirement under Code of Civil Procedure section 2025.450, subdivision (b)(2).)

2.      Good Cause

Here, Plaintiff asserts that there is good cause to depose Defendant’s PMQ because “the deposition testimony of Nissan's PMQ is crucial to Plaintiffs’ ability to prove their case and to show that Nissan’s violation of the Song-Beverly Act was ‘willful,’ subjecting it to a civil penalty.” (Pls.’ Mot. 4:12–14.)

Here, “the categories of testimony requested include: (1) why Nissan did not repurchase the vehicle pursuant to the lemon law pre-suit [Categories 1 and 2]; (2) questions about the service, repair and communication history related to the vehicle and Plaintiffs [Category 3]; (3) questions relating to Nissan’s investigation of the service history [Categories 4–6]; and (4) questions about the warranty nonconformities of which Plaintiffs complain [Category 7].” (Id. at 10:10–14.)

In opposition, Defendant argues that the motion should be denied “because Nissan has agreed to produce a witness on five of the seven categories of testimony at issue and documents on … all of the duplicative document requests at issue. Further, Nissan offered and Plaintiff declined to depose Nissan’s Person Most Qualified (“PMQ”) on May 31, 2024.” (Def.’s Opp. 2:5–8.) “The only matter of testimony that Nissan declined to produce a witness on are 6) an investigation into whether Plaintiffs’ vehicle qualified for repurchase or replacement before filing of the Complaint where Plaintiffs did not request a repurchase prior to filing the Complaint and. (no. 7) concerning ‘warranty nonconformity(s)’ is mostly covered by matter no. 3 (the service and repair history) and Nissan stands on its objections concerning this one category.” (Id. at 2:15–19.)

Plaintiffs argue in reply that with regard to Category 6, “there is no requirement that a plaintiff/consumer specifically request a repurchase” before a manufacturer’s affirmative duty to make restitution arises. (Pls.’ Reply 4:5–14, citing Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1050.) Plaintiffs further assert that with regard to Category 7, “questions regarding warranty nonconformities encompass a deeper, more specific area of examination which does not necessarily include the service and repair history.” (Id. at 4:1–3.) The Court agrees with Plaintiffs, and further finds that the testimony and documents sought are relevant to Plaintiffs’ claims that Defendant “willfully” violated the Song-Beverly Act, thereby subjecting it to civil penalties. (Civ. Code § 1794, subd. (c).)

With respect to Defendant’s argument that the motion should be denied because Defendant offered to have its PMQ deposed on 5/31/24, which Plaintiffs declined, the Court finds that Defendant unreasonably delayed in offering this deposition date despite Plaintiffs’ counsel’s attempts to confirm. As Plaintiffs’ counsel notes via sworn declaration, Defendant’s counsel’s offer for the deposition date came late in the day on 4/29/24, one day before Defendant’s opposition to the instant motion was due. (Suppl. Decl. of Scott A. Sanchez ¶¶ 3–4.) Thereafter, “Plaintiffs’ Counsel informed Nissan’s Counsel that Nissan had provided May 31, 2024, for its deposition in two other cases with this office, and that Plaintiffs therefore did not believe that Nissan would be able to complete three separate depositions in a single day.” (Id. at ¶ 5.)

The Court therefore finds no basis to deny the instant motion based on Defendant’s weak argument that Plaintiff is at fault for the delay in deposing Defendant’s PMQ. Based on the foregoing, the Court orders the deposition of Defendant’s PMQ to be taken, with production of the requested documents, on or before 5/12/24.

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3.      Sanctions

If the Court grants a motion to compel a deposition, it “shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Here, Plaintiffs request monetary sanctions in the total amount of $2,625.00 to be imposed on Defendant. This amount includes: (1) 5 hours of Plaintiffs’ attorney’s time spent working on this motion; and (2) an anticipated additional 2 hours reading Defendant’s opposition, drafting a reply, and appearing at the hearing at his hourly billing rate of $375.00 per hour. (Sanchez Decl. ¶ 20.)

As the Court notes above, it appears that Defendant unreasonably and unjustifiably delayed several months in offering a deposition date despite Plaintiffs’ counsel’s multiple attempts to confirm the same. “Instead of working with Plaintiffs to resolve this matter, Nissan largely ignored Plaintiffs’ calls and correspondences. Through its inaction, Nissan caused wasteful delay and impeded basic discovery.” (Pls.’ Mot. 11:16–18.) “Here, Plaintiffs engaged in three months of meet and confer efforts via phone calls, voicemails, and correspondences, but Nissan ignored these communications.” (Id. at 12:5–6.)

Based on the foregoing, and in granting the instant motion, the Court finds it reasonable to award Plaintiff monetary sanctions against Defendant in the amount of $750.00. 

CONCLUSION

The motion is granted. Defendant is ordered to produce its PMQ to be deposed regarding all noticed categories, and to produce the documents specified in the deposition notice, on or before 5/12/24. The Court imposes $750.00 in monetary sanctions against Defendant.