Judge: Gail Killefer, Case: 22STCV06817, Date: 2023-05-09 Tentative Ruling
Case Number: 22STCV06817 Hearing Date: May 9, 2023 Dept: 37
HEARING DATE: May 9, 2023
CASE NUMBER: 22STCV06817
CASE NAME: Erik Malin v. FCA US, LLC, et al.
MOVING PARTY: Plaintiff, Erik Malin
OPPOSING PARTY: Defendant, FCA USA, LLC
TRIAL DATE: December 19, 2023
PROOF
OF SERVICE: OK
PROCEEDING: Plaintiff’s Motion to
Compel Deposition of Defendant’s Person Most Qualified
OPPOSITION: April 27, 2023
REPLY: May 2, 2023
TENTATIVE: Plaintiff’s motion is
denied. Plaintiff’s motion for sanctions is also denied. FCA is to give notice.
This is a lemon law action arising out of the purchase by Erik
Malin (“Plaintiff”) of a 2020 Dodge Ram 2500 (the “Vehicle”) on November 15,
2020. Plaintiff alleges that the Vehicle was purchased from Russel Westbrook
Chrysler Dodge Jeep Ram of Van Nuys (“Dealer Defendant”) and manufactured by
Defendant, FCA US, LLC (“FCA”). According
to Plaintiff’s Complaint, the Vehicle allegedly developed defects to a variety
of areas during the warranty period, including defects involving the electrical
system and the engine. Plaintiff allegedly presented the Vehicle to Defendants
on multiple occasions for repair but Defendants were unable or failed to
service the Vehicle, impairing its safety, use and/or value.
Plaintiff’s Complaint alleges the following causes of
action: (1) violation of Civil Code § 1793.2(d); (2) violation of Civil Code §
1793.2(b); (3) violation of Civil Code § 1793.2(a)(3); (4) breach of the
implied warranty of merchantability (Civil Code §§ 1791.1, 1794); and (5)
negligent repair against Dealer Defendant.
Plaintiff now moves to compel the deposition of FCA’s Person
Most Qualified (“PMQ”) regarding certain topics and for production of documents
at deposition. FCA opposes the motion.
Meet and Confer
A motion to
compel deposition must be accompanied by a good faith meet and confer
declaration under CCP § 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(b)(2).)¿¿A¿declaration¿under section 2016.040¿must state facts
showing a reasonable and good faith attempt at an informal resolution of each
issue presented in the motion.¿ “[A]¿reasonable and good faith attempt at
informal¿resolution entails something more than bickering with [opposing]
counsel….¿ Rather, the law requires that counsel attempt to talk the matter
over, compare their views, consult, and deliberate.”¿¿(Clement v. Alegre¿(2009)
177 Cal.App.4th 1277, 1294¿(Clement).)¿¿“A determination of whether an
attempt at informal resolution is adequate involves the exercise of
discretion.”¿¿(Stewart v. Colonial W. Agency¿(2001)¿87 Cal.App.4th 1006,
1016, internal ellipses omitted.)¿
Plaintiff submits the declaration of their counsel, Rebecca E.
Neubauer (“Neubauer”), to demonstrate compliance with statutory meet and confer
requirements. Neubauer attests that on May 2, 2022, Plaintiff noticed the
deposition of FCA’s PMK. (Neubauer Decl. ¶¶ 18-19, Exh. 7.) According to Neubauer,
Plaintiff produced a First Amended Notice of Deposition of FCA’s PMK for
November 17, 2022. (Neubauer Decl. ¶ 19.) According to Neubauer, FCA has “not
provided a date to depose its PMK witness” and Neubauer points to meet and
confer letters, stipulations and protective orders filed with this court, and
correspondences between counsel. (Neubauer Decl. ¶¶ 28-45.)
The court here further notes that on February 8, 2023, the parties
held an Informal Discovery Conference (“IDC”) in Department 37 regarding the
issues raised in this motion.
The Neubauer
Declaration does not demonstrate that the parties sufficiently met and
conferred regarding the sufficiency of FCA’s responses, and a date for the PMK
deposition. However, the court exercises its discretion in not denying this
motion based on this failure to meet and confer around the issues. Thus, the
court will address the merits of the parties’ arguments.
Discussion
I.
Legal Standard
CCP § 2025.480 provides in relevant part:
(a) If
a deponent fails to answer any question or to produce any document,
electronically stored information, or tangible thing under the deponent’s
control that is specified in the deposition notice or a deposition subpoena,
the party seeking discovery may move the court for an order compelling that
answer or production.
II.
Analysis
Plaintiff moves to compel a deposition of FCA’s PMK in all
categories listed in the First Amended Notice, excluding categories 11, 12, 13,
and 17, and for production of documents responsive to request Nos. 3, 11, 18,
20, 25, 27, 33, 35, 36, 54, 76, 78, 82, 83, 84, 85, and 89.
A.
Timeliness of Motion
A motion to compel deposition 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(b)(2).)¿¿A¿declaration¿under section
2016.040¿must state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented in the motion.¿¿(CCP § 2016.040.)¿
Pursuant to CCP § 2025.480(d), a motion to compel further
deposition “shall be made no later than 60 days after the completion of the
record of the deposition.”
CCP § 2025.480, provides in relevant part:¿¿¿
“(a) If a deponent fails to answer any question or to produce
any document, electronically stored information, or tangible thing under the
deponent's control that is specified in the deposition notice or a deposition
subpoena, the party seeking discovery may move the court for an order
compelling that answer or production”¿¿
Additionally, “If, after service of a deposition notice, 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, without having served a valid objection under Section 2025.410, 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, 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.” (CCP § 2025.450(a).) The motion must
set forth specific facts justifying the production for inspection of any
document, electronically stored information, or tangible thing described in the
deposition notice.¿ (CCP § 2025.450(b)(1).)¿
As Plaintiff’s motion shows several Notices of deposition
were served on FCA and FCA’s PMK deposition has yet to take place, the court
accepts the Neubauer Declaration as sufficient evidence that the motion was
timely filed and will consider the merits of the motion.
B.
Testimony from PMK
Plaintiff moves for an order striking FCA’s objections and
compelling FCA to produce for deposition its PMK on all categories except
numbers 11-13 and 17. (Motion, 1.)
Plaintiff asserts that a deposition of FCA’s PMK is required
because FCA refused to make a witness available for fifteen of the 26
categories, and limited the scope of the witness’s availability with regards to
other categories. (Motion, 3-4.) Plaintiff argues that the identified
categories in their Separate Statement are directly relevant to establishing
his claims against FCA, and provide for discovery of necessary information for
supporting such claims. (Motion, 9-12.)
FCA’s response to the First Amended Notice of deposition
confirmed that the witness would not be produced for categories 6, 8-24, and 26
in Plaintiff’s Deposition Notice. (Neubauer Decl., Exh. 8.)
In opposition, FCA first contends Plaintiff failed to meet
and confer in good faith, as Plaintiff failed to respond to FCA’s December 15,
2022 letter. (Opposition, 3-4.) Further, FCA contends Plaintiff has failed to
establish justification for discovery on these matters as
“this is a straight Song Beverly action. There is no fraud
alleged. As such information regarding other vehicles is inappropriate.
Plaintiff need only show there was substantial impairment to the use value or
safety of the 2020 RAM 1500.” (Motion, 4.)
FCA further outlines that the objected categories of
information sought are“not relevant to the claims and defenses in this action”
as “the proof to establish FCA US’s liability relates only to the service
records for Plaintiff’s individual vehicle.” (Opposition, 4-5.) Additionally,
FCA asserts it has a right to object to overbroad, burdensome, or unduly
categories, has already produced all responsive, written discovery regarding
Plaintiff’s requests, and:
“Plaintiff’s discovery must be tailored to the dispute in
this lemon law case: Plaintiff’s Vehicle. Plaintiff’s discovery demands include
requests that bear no indication to the dispute in this case, namely, whether
Plaintiff’s vehicle suffered a non-conformity and if so, whether a sufficient
number of attempts have been made to correct that condition if it substantially
impairs the use, value or safety of Plaintiff’s vehicle. Plaintiff makes these
requests without limitation to the actual complaints made by Plaintiff that
might actually support their claims – as opposed to every repair ever performed
on a Jeep Cherokee and indeed other vehicles. All additional discovery is
disproportionate to the actual dispute in this case.” (Opp., 5-7.)
In reply, Plaintiff again contends that testimony is
required on these topics because evidence of nonconformities in other vehicles
is potentially admissible at trial in a lemon law action. Plaintiff again cites
to cases, including Doppes v. Bentley Motors, Inc. (2009) 174
Cal.App.4th 967, 973-974 (Doppes) and Donlen v. Ford Motor Co.
(2013) 217 Cal.App.4th 138, 154 (Donlen) in support of this argument.
(Reply, 6-9.)
First, Doppes does not stand for the general
proposition that evidence of nonconformities in other vehicles is admissible in
Song-Beverly Act actions. Although the cited portion of Doppes indicates
that the trial court granted a motion to compel deposition of PMK regarding
defects in other vehicles, the Court of Appeal did not reach the issue of
whether such discovery was appropriate in each Song-Beverly Act action.
In Donlen, the Court of Appeal held that the trial
court did not abuse its discretion when it denied Defendant’s motion in limine
to exclude testimony about other vehicles because the testimony Defendant
sought to exclude pertained to a type of transmission installed in Plaintiff’s
vehicle as well as the other vehicles the expert testified to. (Id. at
154.) As such, the Court of Appeal found this evidence probative and not unduly
prejudicial. (Id.)
Here, categories 6, 8-24, and 26 of the Deposition Notice
ask FCA to produce a witness for information regarding other FCA vehicles, and
not only relating to the Vehicle at issue here.
Although the Complaint alleges that the Vehicle suffered
from defects and as a result of FCA’s alleged liability, Plaintiff has failed
to demonstrate good cause for why testimony on each of the aforementioned topics
is required, other than general statements that discovery about defects in
other vehicles is relevant to the issue of civil penalties. Plaintiff also does
not seek damages in connection with defects in other vehicles. “The very existence of a warranty presupposes
that some defects may occur.” (Santana v. FCA US, LLC, (2020) 56
Cal.App.5th 334, 344.) Thus, the
existence of defects which involved vehicles Plaintiff did not own are not, by
themselves, enough to demonstrate that a defendant vehicle manufacturer
fraudulently concealed a defect from Plaintiff. (Id.) The court here
also notes FCA’s response affirmed their production of a PMK witness for the
remaining categories. Thus, the court finds that testimony from FCA’s PMQ on the
objected topics, as drafted, is not required.
C.
Production of Documents
Plaintiff moves to compel production of documents responsive
to requests Nos. 3, 11, 18, 20, 25, 27, 33, 35, 36, 54, 76, 78, 82, 83, 84, 85,
and 89.
The court here again notes FCA has asserted it has already
provided all responsive documents:
“FCA US has already provided the responsive documents to
Plaintiff’s requests, including documents related to Plaintiff’s “Defects”
definitions. Those documents were produced after conducting extensive document
searches for back up engineering and internal analysis related to the “Defects”
definitions. Therefore, there should be no dispute relating to the document
production or the responses to the requests for production.” (Opp., 5.)
FCA asserts that it has complied with this request in full
by producing all responsive documents within its possession, custody or
control. (Separate Statement in Support of Motion, 154-220.) FCA otherwise
objects to these requests on the grounds that they are vague, ambiguous,
overbroad, and are not reasonably calculated to lead to the discovery of admissible
evidence. (Id.)
Plaintiff asserts that FCA’s responses are insufficient
because FCA has failed to demonstrate that the requests are unduly burdensome,
overbroad, or regarding information Plaintiff is not entitled to receive during
the course of discovery. (Motion, 11-14.) According to Plaintiff, the requested
documents will show that FCA was aware of the Vehicle’s defects prior to its
sale to Plaintiff and FCA’s objections are without merit. (Motion, 9-11.)
The court has reviewed the discovery requests accompanying
the Amended Deposition Notice and finds that a further response to these
requests is not required. FCA has listed documents it produced that it contends
is all the documents in its possession which are responsive to these requests.
Plaintiff does not specifically demonstrate why such documents are
insufficient, other than general statements to this effect. Further, as
explained above, Plaintiff fail to show why discovery regarding other vehicles,
or other databases, beyond what FCA has already produced, is relevant to
establishing Plaintiff’s claims, beyond conclusory statements to this effect. For
these reasons, Plaintiff’s motion is denied.
As Plaintiff’s motion is denied, Plaintiff’s motion for
sanctions is also denied.
Thus, FCA is ordered to produce their PMK witness for
deposition within 21 days of this hearing, and upon the already asserted
categories and requests.
Conclusion
Plaintiff’s motion is denied. Plaintiff’s motion for
sanctions is also denied. FCA is to give notice.