Judge: Cynthia A Freeland, Case: 37-2022-00005374-CU-CO-NC, Date: 2023-08-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - July 27, 2023

07/28/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Contract - Other Discovery Hearing 37-2022-00005374-CU-CO-NC TENNISON VS NISSAN NORTH AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 07/03/2023

Plaintiff Laura Tennison ('Plaintiff')'s motion to compel the deposition of Defendant Nissan North America, Inc. ('Defendant')'s person most qualified ('PMQ') and to produce documents, and for sanctions, is granted.

California Code of Civil Procedure ('CCP') § 2025.010 authorizes a party to obtain discovery by way of a deposition of any person, including any party to the action. See Cal. Code Civ. P. § 2025.010. When the deponent is a corporate entity, the deposition notice must describe with reasonable particularity the matters upon which examination is requested. See Cal. Code Civ. P. § 2025.230. CCP § 2025.230 prescribes that '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.' Ibid.

Moreover, '[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do[.]' Maldonado v. Super. Ct. (2002) 94 Cal. App. 4th 1390, 1395-1396. In addition, '[w]hen a request for documents is made . . . the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.' Ibid. at 1396.

Proper service of a deposition notice 'is effective to require any deponent who is a party to the action . . .

to attend and to testify . . . .' Cal. Code Civ. P. § 2025.280(a). 'If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . or to produce for inspection any document . . . 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 . . . described in the deposition notice.' Cal. Code Civ. P. § 2025.450(a). The propounding party must 'set forth specific facts showing good cause justifying the production for inspection of any document . . . described in the deposition notice.' Cal. Code Civ. P. § 2025.450(b)(1). 'To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.' Digital Music News LLC v. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. If the propounding party establishes good cause, the burden shifts to the deponent to justify its objections. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221.

Initially, the court must respectfully disagree with Defendant that its agreement to produce its PMQ for Calendar No.: Event ID:  TENTATIVE RULINGS

2978605 CASE NUMBER: CASE TITLE:  TENNISON VS NISSAN NORTH AMERICA INC [IMAGED]  37-2022-00005374-CU-CO-NC his or her deposition on July 31, 2023 moots the present motion. As Plaintiff correctly notes in her reply brief, a careful review of Defendant's Separate Statement reveals that Defendant has indicated a willingness to produce its PMQ and documents on a narrower range of topics than what is called for in Plaintiff's Second Notice of Deposition (the 'Deposition Notice'). For example, notwithstanding the fact that the PMQ Categories broadly seek, inter alia, all communications between Plaintiff and Defendant/Defendant's counsel, all communications between Defendant and Defendant's authorized repair facility(s) regarding the subject vehicle, Defendant's policies or guidelines regarding the handling of Song-Beverly Consumer Warranty Act claims, Defendant's policies or guidelines that ensure it is in compliance with the Song-Beverly Act, the basis for Defendant's denial of and/or failure to provide Plaintiff restitution, Defendant substantively responds as follows: NISSAN will produce, on a mutually agreeable date, a witness to testify generally regarding repairs performed on the subject vehicle as referenced in warranty and non-warranty claim records, in any communications between NISSAN and its dealers regarding technical inquiries or concerns from the subject vehicle, and in repair records in NISSAN's possession regarding the subject vehicle obtained in discovery or from independently owned and operated NISSAN dealerships. However, NISSAN did not perform these repairs, and its testimony will be limited to what is reflected in those records.

As a further example, Defendant's responses to several RFPs, inclusive of RFP Nos. 1 and 4, suggest that Defendant will not be producing any documents responsive to those requests. Defendant cites no authority for the proposition that it can unilaterally narrow the scope of the Deposition Notice's requested information.

Further, Defendant's general objections to the Deposition Notice, which Defendant submitted on April 20, 2023, are not well taken. First, to the extent Defendant has refused to produce its PMQ on the grounds that Plaintiff unilaterally noticed the deposition, such contention is not well taken. CCP § 2025.270(a) provides that a notice of deposition may be served on only 10 days' notice. See Cal. Code Civ. P. § 2025.270(a). CCP § 2025.270(a) does not require that counsel meet to agree upon the deposition date before the notice is served. Indeed, the lack of consultation prior to the issuance of the Deposition Notice served no prejudice to the parties given that Defendant, in its objections, noted that it was not available on the date noticed but would appear at a mutually convenient time and place.

Second, to the extent Defendant contends that the subject categories and topics are ambiguous or vague, such objection is unavailing unless the discovery request is so unintelligible that Defendant cannot reasonably respond. Defendant has made no such showing. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Super. Ct. (1961) 56 Cal. 2d 423, 428. In addition, the court finds that the language used in the requests is not vague or ambiguous given that the requests contain fairly general terms with commonly understood definitions and connotations.

Third, to the extent Defendant has contended that producing its PMQ to testify as to certain categories or to produce the requested documents would be unduly burdensome, it was incumbent upon Defendant to provide evidence that the quantum of work required to respond would create an undue burden and that the ultimate effect of the request would be incommensurate with the result sought. See Williams v. Superior Court (2017) 3 Cal. 5th 531, 549-50; West Pico Furniture Co. of Los Angeles v. Superior Court In and For the County of Los Angeles (1961) 56 Cal. 2d 407, 417. Defendant failed to make the requisite showing.

Fourth, to the extent that Defendant has asserted the attorney-client privilege and/or attorney work-product doctrine, Defendant must provide to Plaintiff 'sufficient factual information for [Plaintiff] to evaluate the merits of that claim including, if necessary, a privilege log.' Cal. Code Civ. P. § 2031.240(c)(1). Defendant failed to do so.

Fifth, to the extent that Defendant has asserted that the requests seek to disclose privileged confidential, proprietary, and/or trade secret information, Defendant bore the initial burden of proving that the privilege applies. See Amgen Inc. v. Health Care Services (2020) 47 Cal. App. 5th 716, 733. Defendant Calendar No.: Event ID:  TENTATIVE RULINGS

2978605 CASE NUMBER: CASE TITLE:  TENNISON VS NISSAN NORTH AMERICA INC [IMAGED]  37-2022-00005374-CU-CO-NC failed to meet its burden. To the extent any of the categories or RFPs implicate Defendant's confidential, proprietary, and/or trade secret information, the parties are directed to meet and confer as to the terms of a protective order before Defendant is required to produce any information in connection with those categories and/or RFPs.

Finally, the court must respectfully disagree with Defendant that the subject categories and RFPs are not relevant to the subject matter of this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence. 'Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Cal. Code Civ. P. § 2017.010. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. See Gonzalez v. Sup. Ct. (City of San Fernando) (1995) 33 Cal. App. 4th 1539, 1546. Courts generally recognize that the right to discovery is broad, and disclosure is favored 'unless the request is clearly improper by virtue of well-established causes for denial.' Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541. That being said, an objection that the request is not relevant to the subject matter of the lawsuit may be a valid objection. See Cal. Code Civ. P. § 2017.010. Indeed, while the scope of discovery is broad, it is not limitless. Discovery that is not reasonably calculated to lead to the discovery of admissible evidence or is not helpful in preparing for trial is not authorized. See Digital Music News LLC v. Sup. Ct.

(2014) 226 Cal. App. 4th 216, 224. To determine whether discovery requested is reasonably calculated to lead to the discovery of admissible evidence, the court must look to the allegations in the operating pleading. See John B. v. Sup. Ct. (2006) 38 Cal. 4th 1177, 1206.

In this case, the court finds that the subject categories and RFPs are directly relevant to the subject matter of this action. For example, by virtue of Plaintiff's prayer, Plaintiff seeks penalties under California Civil Code ('CC') § 1794(c). CC § 1794(c) authorizes the imposition of a civil penalty up to two times the amount of actual damages if the buyer proves the manufacturer's failure to comply with the prescriptions of the Song-Beverly Act was willful. Manufacturers' policies, guidelines, and procedures are but one factor that a trier of fact may consider when determining whether a manufacturer's course of conduct was willful. See e.g., Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 136; CACI Jury Instruction No. 3244. In addition, Defendant has as part of its Answer asserted several affirmative defenses to which Plaintiff is entitled to the factual basis, including, without limitation, Defendant's claims that it believed in good faith that it was not under a statutory obligation to repurchase or replace Plaintiff's vehicle. In addition, the requested information is probative of whether the subject vehicle suffered from a defect(s), whether Defendant could repair it to conform to the express and implied warranties within a sufficient number of times, and whether Defendant provided its repair facilities with sufficient literature and parts to complete repairs during the warranty period.

The court must impose monetary sanctions '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.' Cal. Code Civ. P. § 2025.450(g)(1). Monetary sanctions are also appropriate for misuses of the discovery process including, but not limited to: (1) failing to respond or to submit to an authorized method of discovery; (2) making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and (3) failing to confer in a reasonable and good faith attempt to informally resolve a discovery dispute. See Cal. Code Civ. P. §§ 2023.010(d), (h)-(i), 2023.030(a). The party opposing sanctions bears the burden of proving that he or she acted with substantial justification in failing to comply with a discovery request. See Doe v. U.S. Swimming, Inc.

(2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480).

In this case, the court finds that Defendant has failed to demonstrate that it was substantially justified in objecting to the Deposition Notice, failing to produce its PMQ for deposition, and opposing the present Calendar No.: Event ID:  TENTATIVE RULINGS

2978605 CASE NUMBER: CASE TITLE:  TENNISON VS NISSAN NORTH AMERICA INC [IMAGED]  37-2022-00005374-CU-CO-NC motion. The court's finding is bolstered by Defendant's failure to meaningfully engage in the meet and confer process prior to the filing of this motion. The evidence shows that on November 1, 2022, Plaintiff's counsel attempted to meet and confer with Defendant's counsel to obtain three possible deposition dates by November 11, 2022. See Johnson Decl., Ex. 1. Defendant's counsel did not respond. On March 21, 2023, Plaintiff served Defendant with the Deposition Notice noticing Defendant's PMQ's deposition for April 27, 2023. Ibid., Ex. 2. On March 23, 2023, Plaintiff's counsel attempted to meet and confer with Defendant's counsel regarding various discovery as well as Defendant's PMQ's deposition but received no response. Ibid., ¶ 19. Defendant formally objected to the Deposition Notice on April 20, 2023. Ibid., Ex. 3. That same day, Plaintiff's counsel e-mailed Defendant's counsel requesting that Defendant's counsel provide, by April 27, 2023, three dates within the next 30 days for the deposition to take place. Ibid., Ex. 4. Defendant's counsel did not respond and did not produce a PMQ or documents responsive to the Deposition Notice on April 27, 2023. Moreover, Defendant did not even offer Plaintiff a potential deposition date until July 17, 2023 – the same day it filed its opposition to the motion. See Preston Decl., Ex. B. Based on the foregoing, the court finds that monetary sanctions are warranted in the amount of $5,000.00.

In light of the foregoing, the court grants the motion and: (1) directs Defendant's PMQ to provide deposition testimony and documents responsive to the Deposition Notice, and (2) awards Plaintiff $5,000.00 in sanctions against Defendant and its counsel, Kaitlin E. Preston, jointly and severally, due and payable to Plaintiff's counsel within thirty (30) days of this hearing. Defendant shall attend the hearing prepared with at least three dates within the next thirty (30) days for its PMQ's deposition from which Plaintiff shall come prepared to select one. Failure to comply in this regard will result in the court setting the date, which date would be subject to change only by written agreement between counsel or further court order.

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