Judge: Bruce G. Iwasaki, Case: 22STCV16375, Date: 2024-10-03 Tentative Ruling

Case Number: 22STCV16375    Hearing Date: October 3, 2024    Dept: 58

Judge Bruce Iwasaki 

Department 58 

Hearing Date:             October 3, 2024           

Case Name:                 Serrano v. American Honda Motor Co.

Case No.:                    22STCV16375

Motion:                       Motion to Compel Deposition of Person(s) Most Qualified;
Request for Production of Documents;
Request for Sanctions

Moving Party:             Defendant American Honda Motor Co.

Tentative Ruling:      Plaintiff’s Motion to Compel Deposition of Person(s) Most Qualified is granted in part.
Plaintiff’s Request for Production of Documents is granted in part.
Plaintiff’s Request for Sanctions is denied.

Background

This case is a lemon law action filed by Plaintiff Mirna Serrano (“Plaintiff”) against Defendants American Honda Motor Co. (“Defendant”). Plaintiff’s First Amended Complaint, filed on November 18, 2022, asserts three causes of action: (1) Violation of the Song-Beverly Consumer Warranty Act, Breach of Express Warranty; (2) Violation of the Song-Beverly Consumer Warranty Act, Breach of Implied Warrant; and (3) Fraudulent Inducement, Concealment.

Plaintiff served Defendant with a Notice of Deposition of Person(s) Most Qualified and Custodian(s) of Records and a Request for Production of Documents on April 30, 2024. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) Plaintiff noticed the deposition for June 18, 2024, although there is no evidence that this date was agreed upon. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) On June 13, 2024, Defendant served its objections to Plaintiff’s Notice of Deposition, refusing due to Plaintiff’s unilateral notice and Defendant’s objections. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.) The following day, Plaintiff sent a written letter seeking to meet and confer, requesting a response by June 18, 2024. (Declaration of Timothy Lupinek, ¶ 6, Exhibit C.) Plaintiff’s counsel also sent emails requesting alternative dates. (Declaration of Timothy Lupinek, ¶ 6, Exhibit D.)

On June 18, 2024, Defendant’s counsel offered November 6, 2024 as an alternate deposition date. (Declaration of Scott Hancox, ¶ 12, Exhibit H.) Plaintiff’s counsel responded that he did not believe they could accept the alternative date, because it would be three days before the discovery cut-off, and asked for an earlier date. (Declaration of Scott Hancox, ¶ 13, Exhibit I.) Plaintiff followed up on June 24 and July 9 seeking alternative mutually agreeable dates. (Declaration of Scott Hancox, ¶ 15, Exhibit K.)

On August 8, 2024, Plaintiff filed the instant Motion to Compel Deposition Attendance of a Person Most Qualified (“PMQ”), Request for Production of Documents, and Request for Sanctions.

Discussion

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)  “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify.” (Code Civ. Proc., § 2025.280, subd. (a).)

If the deponent is not a natural person, “the deponent shall designate and produce at the deposition those of their officers, directors, managing agents, employees, or agents who are most qualified to testify on their behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.) Furthermore, the notice must “describe with reasonable particularity the matters on which examination is requested.” (Code Civ. Proc., § 2025.230.)

Any party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served. (Code Civ. Proc., § 2025.410, subd. (a).)

If after receiving notice, a party fails to appear, to answer any question, or to produce any document or tangible thing specified in the deposition notice, the party seeking discovery may move the court for an order compelling attendance and production. (Code Civ. Proc., § 2025.450, subd. (a).) The motion must be accompanied by a good faith 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.”¿ (CCP § 2025.450,¿subd. (b)(2).)¿ 

1.     Motion to Compel Deposition of Person Most Qualified

On April 30, 2024, Plaintiff properly served Defendant with a Notice of Deposition that was timely and, in part, reasonably particularized. The deposition notice included twenty-five (25) matters for examination. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.)

On June 13, 2024, Defendant timely served its objections to Plaintiff’s Notice of Deposition, refusing due to Plaintiff’s unilateral notice and Defendant’s objections. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.) The court does not agree with Defendant’s objection to a unilateral notice. “The service of a deposition notice…is effective to require any deponent who is a party to the action…to attend and to testify...”  (Code Civ. Proc., § 2025.280, subd. (a).) However, Defendant also offered to coordinate rescheduling on a mutually agreeable date. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.)

Defendant’s other objections include that the matters listed were vague, ambiguous, overly broad, and sought information not relevant to the subject matter of the litigation. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.) However, the court finds that some of Plaintiff’s matters for examination are reasonably particularized. Matters 1–9 all pertain to the specific vehicle which Plaintiff owned. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) The court does not agree that these matters are overbroad, as Plaintiff argues that “testimony and evidence regarding repairs performed on Plaintiff’s vehicle, warranty claims and warranty coverage are relevant because it is related to the very basis for Plaintiff's claims…” (Separate Statement of Issues in Dispute, p. 6.) Thus, Plaintiff can seek to depose Defendant’s PMQ on these matters.

Matters 11–21 regard policies, procedures, and training guidelines for vehicle repurchases and replacement, defining and measuring “nonconformity” and “reasonable number of repair attempts, dealership warranty claims, and tracking vehicles with warranty repair presentations. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) Defendant argues that these matters are also vague, ambiguous, and overly broad. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.) The court disagrees that these matters are overbroad, as they encompass Defendant’s policies and procedures at the time of Plaintiff’s vehicle ownership. It should be within the deponent’s personal knowledge what Defendant’s policies were at the time of Plaintiff's vehicle ownership, and whether those policies were followed with regards to Plaintiff's vehicle. Thus, Plaintiff can seek to depose Defendant’s PMQ on these matters.

However, the remainder of matters are not reasonably particularized or covered under attorney-client privilege. Matter 10 involves documents Defendant has produced in this litigation thus far. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) Defendant argues that this request calls for information that is “confidential, commercially sensitive, and/or proprietary in nature,” and that the testimony sought is “overly broad, harassing, unduly burdensome, and improperly asks for information from third Parties over whom [Defendant] has no control.” (Objection to Plaintiff’s Notice of Deposition, p. 8.) The court agrees that this request is overly broad and calls for deponent to testify to matters that may be covered under attorney-client privilege.

Matters 22–24 regard databases, software, methodology, and searchability of Defendant’s warranty data. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) The court agrees that this category is overbroad—it is not limited in time to Plaintiff’s vehicle ownership. It is unclear how deponent’s knowledge of earlier warranty data and handling of that data pertains to Plaintiff’s claim. Finally, Matter 25 regards Defendant’s discovery responses in this case. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) Plaintiff’s request is not narrowly tailored, as Plaintiff has access to these past discovery responses.

Though Defendant has not filed a separate statement on the matters for deposition or the documents to be produced, the court finds Plaintiff cannot seek to depose Defendant’s PMQ on matters 10 and 22–25.

Defendant most recently offered November 6, 2024 as an alternate deposition date. (Declaration of Scott Hancox, ¶ 12, Exhibit H.) Plaintiff’s counsel responded that that date was too close to the end of discovery—in the event of unavailability of the PMQ witness, Plaintiff would have no time to move to compel a further competent witness. (Declaration of Scott Hancox, ¶ 13, Exhibit I.) “[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) The trial date in this case is December 9, 2024. Plaintiff would have until November 24, 2024 to file a motion to compel, should Defendant fail to produce a witness on the date they provided.

Plaintiff’s motion to compel deposition of a person most qualified is granted in part and denied in part. The court orders parties to conduct this deposition on the offered date of November 6, 2024. Defendant must produce its PMQ deponent for deposition as to matters of examination 1-9 and 11–21 proposed in Plaintiff’s notice of deposition dated April 30, 2024.

Discovery motions regarding the deposition may be filed on or before November 24, 2024. The court orders that parties meet and confer before a hearing on discovery motions to identify a date on or before November 8, 2024.

2.     Request for Production of Documents

Plaintiff’s April 30, 2024 Notice of Deposition included a request for documents in 17 categories. (Declaration of Timothy Lupinek, ¶ 3, Exhibit A.) Defendant similarly objected to these categories for being vague, ambiguous, overly broad, and sought information not relevant to the subject matter of the litigation. (Declaration of Timothy Lupinek, ¶ 5, Exhibit B.)  The Court grants the request for production solely to the topics permitted for the deposition identified above.

Plaintiff’s motion to compel production of documents is thus granted in part and denied I part. The court orders Defendant to produce responsive documents to Plaintiff’s categories 1–9 proposed in Plaintiff’s notice of deposition filed April 30, 2024. Defendant must produce documents on or prior to the deposition date of November 6, 2024. All other production requests are denied.

3.     Request for Sanctions

The Court is concerned that Defendant was not more responsive regarding deposition scheduling.  This motion should have been resolved without court intervention.  Because the topics and production requests were in some cases overbroad, Defendant’s conduct was not without substantial justification.  The Court denies Plaintiff’s request for monetary sanctions.