Judge: Anne Richardson, Case: 20STCV42495, Date: 2023-08-25 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 20STCV42495    Hearing Date: January 24, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiffs Ivy Flores and Amanda Portobanco (Plaintiffs) sue Defendant Mazda Motor of America, Inc. (Mazda) and Does 1 through 20 pursuant to a Complaint alleging two Song-Beverly Consumer Warranty Act claims and an Unfair Competition claim pursuant to Business and Professions Code section 17200, et seq.

The claims arise from allegations that on April 12, 2018, Plaintiffs purchased a new 2018 Mazda CX-5 (Subject Vehicle), related to which Plaintiffs received various express warranties from Mazda, only for the Subject Vehicle to exhibit or develop powertrain control module and transmission defects, acceleration issues, rear shock leaking, seatbelt malfunctions, abnormal noises, bouncy suspension, Bluetooth connectivity issues, lack of power, and startup issues, with Mazda’s authorized repair and service facilities failing to conform the Subject Vehicle to applicable warranties.

Motion Before the Court

On September 11, 2023, Plaintiffs noticed the deposition of Mazda’s person most qualified (PMQ, briefed as PMK) for discovery into Mazda's business practice of sending repurchase offers to California consumers that are in violation of its obligations under Song-Beverly and therefore are an unlawful business practice in violation of Business and Professions Code section 17200. The deposition was set for September 25, 2023.

On September 20, 2023, Mazda served objections to the deposition notice.

On October 9, 2023, Plaintiffs’ counsel sent correspondence to Mazda’s counsel, seeking to meet and confer regarding Mazda’s objections by October 13, 2023.

On October 13, 2023, Mazda’s counsel indicated that it would not provide a witness because the discovery cutoff had expired.

On October 17, 2023, Plaintiffs’ counsel responded to the October 13, 2023 meet and confer effort.

On October 20, 2023, counsel had a telephone meet and confer, which did not resolve the deposition dispute.

On October 26, 2023, Plaintiffs filed a motion to compel the deposition of Mazda’s PMQ. The motion does not seek sanctions.

On January 10, 2024, Mazda opposed Plaintiffs’ motion.

On January 17, 2024, Plaintiffs replied to the opposition.

Plaintiffs’ motion is now before the Court.

Motion to Compel Deposition, Person Most Qualified

Legal Standard

If, [1] after service of a deposition notice, [2] 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, [3] without having served a valid objection under Section 2025.410, [4] 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, [5] 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) [Arabic numerals added for clarity].)

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.)

The motion shall 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. (Code Civ. Proc., § 2025.450, subd. (b)(1).)

The motion shall also 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. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the proposed deponent made some response to the deposition notice, then a separate statement must accompany any motion to compel deposition attendance or production. (See Cal. Rules of Court, rule 3.1345, subd. (b).)

Order Compelling Deposition(s): DENIED.

Here, after review, the Court determines that Plaintiffs’ motion was filed beyond the applicable discovery cutoff and discovery motion hearing cutoff dates.

The original trial date in this action was December 6, 2022. (See Opp’n, Ekblad Decl., Ex. A [3/25/21 Minutes, Case Management Conference, setting trial date].) That trial date yielded a discovery cutoff date of Friday, November 14, 2022 and a discovery motion hearing cutoff date of Monday, November 21, 2022. (See Code Civ. Proc., § 2024.020, subd. (a).) This motion was filed on October 26, 2023 and is being heard on January 24, 2024, well after November 21, 2022. (See Mot., p. 1.)

Mazda correctly notes that while discovery cutoff dates have been extended in this action, those extensions did not apply to the type of deposition at issue here. (See Opp’n, pp. 5-6.) The extensions related to discovery that was being pursued as of the cutoff date, the taking of Plaintiffs’ deposition, an inspection of the Vehicle, the taking of expert and dealership depositions, and written discovery dated May 11, 2022. (See Opp’n, Ekblad Decl., Ex. E, p. 2 [March 2023 Joint Stipulation to Continue Trial and Certain Discovery and Motion Deadlines].)

In reply, Plaintiffs argue that “an extension of the discovery cut-off is appropriate here[] because of Defendant’s admitted evasion with regard to the information sought” (Reply, p. 2), which tacitly concedes that the discovery cutoff argument by Mazda is meritorious.

Plaintiffs also argue that an extension of the discovery deadline is appropriate here to remedy Defendants’ evasive discovery tactics and that, per California authorities, the Court may grant a request to extend a discovery cutoff deadline without a noticed motion. (Reply, p. 2.) However, the Court finds that on this record, there is an insufficient showing of diligence on the part of Plaintiffs or evasion on the part of the Defendants to order an extension of the discovery cut-off, although this conclusion is without prejudice. The Court notes that the continued trial date is set on February 20, 2024 and this date has already been continued several times.

Plaintiffs’ motion is DENIED. 

Conclusion

Plaintiffs Ivy Flores and Amanda Portobanco’s Motion to Compel the Deposition of Defendant Mazda Motor of America, Inc.’s Person(s) Most Knowleedgeable with Production of Documents is DENIED.