Judge: Carolyn M. Caietti, Case: 37-2021-00036852-CU-BC-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - January 25, 2024

01/26/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00036852-CU-BC-CTL DESORBO VS KIA AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/31/2023

Plaintiffs Kelly Desorbo and Jeffrey Desorbo's Motion to Compel Compliance with the Court's Discovery Ruling from December 14, 2022; and Request for Monetary Sanctions is GRANTED.

This is Plaintiffs' second motion to compel Defendant's compliance with Court orders. The Court heard the first motion to compel compliance on December 1, 2023, and granted Plaintiffs' Motion for Order Compelling Defendant Kia Motors America, Inc.'s Compliance with Court Order dated February 10, 2023. (ROA 208 – Minute Order dated Dec. 1, 2023.) This second motion concerns the Court's order on December 9, 2022. There, the Court granted Plaintiffs' Motion to Compel Kia's Person Most Knowledgeable and awarded sanctions of $2,725. (ROA 101.) The deadline for the deposition and sanctions payment was January 27, 2023. In this motion, Plaintiffs maintain Defendant produced a person most knowledgeable as to Examination Nos. 1-11, 15, 17, 30-37, 39-42, but ignored Plaintiffs' request for deposition dates of Nos. 12-14, 16, 18-29, 38 and 43.

The motion first came on calendar on December 15, 2023. The Court continued the motion to allow Defendant to file an opposition, which it failed to do due to a calendaring error.

On January 12, 2024, Defendant opposed, maintaining Defendant produced a person most knowledgeable (PMK) 'on the topics within the scope of its role as a distributor of new Kia vehicles in the United States.' (Opp., at p. 2:6-7.) Further, and only through a declaration of counsel and not by someone at Kia, Defendant further claims the 'categories for which no PMK was provided reflect that no PMK exists.' (Declaration of Jacqueline Bruce Chinery, at ¶ 12.) C.C.P. section 2025.230 requires Defendant to '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.' Pursuant to C.C.P. section 2025.450(h), if a party fails to obey an order compelling attendance, testimony and production, the court may make orders that are just, including the imposition of sanctions, in addition to, monetary sanctions.

Here, Defendant's position and unilateral narrowing of the Court's order to topics 'within the scope of its role as a distributor' is unpersuasive. The Court already ordered a PMK produced for these categories.

The Court also reviewed Defendant's opposition to the underlying motion and notes its representations that it: (i) 'has every intention of producing its Person Most Knowledgeable (PMK) in this matter' (ROA 98 – Opposition filed Nov. 28, 2022, at p. 2:6-7); and (ii) 'there are nine KA personnel...who are available to testify as KA's Person Most Knowledgeable/Qualified...' (id., at p. 3:20-25.) Not once did Calendar No.: Event ID:  TENTATIVE RULINGS

3067043  43 CASE NUMBER: CASE TITLE:  DESORBO VS KIA AMERICA INC [IMAGED]  37-2021-00036852-CU-BC-CTL Defendant represent a PMK did not exist for these categories. Counsel's declaration is similarly unhelpful because it testifies on what Defendant does and does not do (ex., 'KA does not track the rate and frequency of warranty repairs for specific categories' at ¶ 11), but none of it is authenticated with a declaration from someone from Defendant itself. The random selection of deposition excerpts is similarly unhelpful and without any context. (Chinery Decl., at Ex. B.) In light of Defendant's failure to produce witnesses as ordered, Defendant is ordered to comply with the Court's previous order, produce the witness(es) and pay Plaintiff sanctions, which are authorized, reasonable and substantiated. (C.C.P., § 2025.450(h).) For these reasons, the motion is GRANTED.

Concluding Orders Defendant Kia America, Inc. is ordered to produce a person most knowledgeable as to Examination Nos. 12-14, 16, 18-29, 38 and 43 on a mutually agreeable date and no later than February 23, 2024.

Defendant Kia America, Inc. is ordered to pay Plaintiffs monetary sanctions in the amount of $2,125 by February 23, 2024.

If the Court's tentative ruling is confirmed without modification, the minute order will be the Court's final order. Plaintiffs are ordered to serve written notice of the Court's final ruling on all appearing parties by January 30, 2024.

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