Judge: Gregory Keosian, Case: 22STCV03771, Date: 2022-08-26 Tentative Ruling

Case Number: 22STCV03771    Hearing Date: August 26, 2022    Dept: 61

Plaintiff Jacqueline Rubio’s Motion to Compel Deposition of Defendant Nissan North America, Inc.’s Person Most Knowledgeable is GRANTED as to Categories of Examination No. 1–11 and 13, and Requests No. 1–8, and DENIED as to Category No. 12 and Request No. 9.

I.      MOTIONS TO COMPEL DEPOSITION AND INSPECTION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Plaintiff moves to compel the deposition of Defendant Nissan North America’s person most knowledgeable for 13 categories of information and nine document requests. Categories No. 7–10 and 13 asked about Defendant’s decision not to repurchase the vehicle and warranty policies and procedures, to which Defendant objected solely on scheduling grounds. (Separate Statement.) Categories No. 1, 11, and 12 sought to examine a witness regarding the repair of Plaintiff’s vehicle and Defendant’s repair policies and procedures, to which Defendant objected on the grounds that the dealership, and not itself, repaired the vehicle. (Ibid.) Categories No. 2–6 and 12 sought information concerning the technical service bulletins and recalls applicable to the subject vehicle, to which Defendant objected on grounds of overbreadth. (Ibid.)

As for document requests, Request No. 1 sought documents related to the subject vehicle, to which Defendant responded by referring to a list of documents, without indicating whether the response was complete. Requests No. 2–4 sought further information concerning the subject vehicle, to which Defendant again made reference to the categories referred to in its response to Request No. 1.Requests No. 5–8 sought documents concerning Defendant’s investigation of the subject vehicle and relevant warranty and repair policies, to which Defendant responded by referring once more to specific documents, without stating that they were producing all responsive documents in their possession, and also objecting that the repairing dealership was better suited to this inquiry. Finally, Request No. 9 sought documents related to the issuance of Technical Service Bulletin P9348, to which Defendant responded with objections based on overbreadth and burden.

 No order is warranted compelling Defendant to produce a witness or documents concerning TSB P9348 — meaning Category No. 12 and Request No. 9 — because Plaintiff has not articulated good cause for these requests. It remains unclear why information concerning this particular TSB is necessary or related to Plaintiff’s claims under Code of Civil Procedure § 2017.010. Defendant in opposition notes that this TSB pertains to an emissions service campaign that is not alleged as an issue in Plaintiff’s Complaint, which only names issues with loose molding, tire bubbles, engine noise, losing power, wheel misalignment, and repeated turbocharger replacement. (Complaint ¶ 11; Thomas Decl. Exh. B.)

Relief is warranted, however, as to Plaintiff’s other categories and requests. Categories No. 1–11 and 13 are supported by good cause, as they concern the subject vehicle, TSBs and recalls applicable to same, and Defendant’s warranty policies and procedures. To succeed on a claim brought under the Song-Beverly Consumer Warranty Act (“the Act”), the plaintiff bears the burden of proving several elements, including nonconformity of a vehicle that substantially impaired its use, value, or safety, presentation of a vehicle to a manufacturer or authorized representative for repair, and failure to repair the defect after a reasonable number of attempts. (Oregel v. Am. Isuzu Motors, Inc. (“Oregel”) (2001) 90 Cal.App.4th 1094, 1101.) A buyer may be entitled to a civil penalty of up to two times the actual damages upon a showing that the manufacturer willfully failed to abide by any of its obligations under the Act. (Civ. Code § 1794, subd. (c).) Evidence that a defendant “adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act,” is relevant to a determination of “willfulness” in relation to prayers for the civil penalty. (Oregel, supra, 90 Cal.App.4th at p. 1105.) Similarly evidence of similar defects in similar vehicles produced by a lemon law defendant may bear upon the same inquiry. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 993–994 [upholding sanctions against a manufacturer for failing to turn over discovery related to other vehicles]; Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138 [noting expert testimony related to other vehicles supported the existence of a defect in the subject vehicle].) Defendant’s objections concerning scheduling are unpersuasive, as Defendant has offered no dates for the deposition to be taken. (Quinn Decl. ¶ 9.) And Defendant’s objections that it did not repair the vehicle are also ill-taken, as Defendant’s knowledge of these repairs is relevant to its decision whether or not to repurchase the vehicle.

 Requests No. 1–8 also deserve a further response. To these requests, Defendant responded simply by referring to a list of documents that it was willing to produce, without indicating whether it was producing all responsive documents in its control, whether it was withholding responsive documents pursuant to any objection, or what the nature of the withheld documents was. (See Code Civ. Proc. § 2031.220, 2031.240, subd. (b).)

 Accordingly the motion is GRANTED as to Categories of Examination No. 1–11 and 13, and Requests No. 1–8, and DENIED as to Category No. 12 and Request No. 9.