Judge: James L. Crandall, Case: 20-1154815, Date: 2022-07-28 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Plaintiff Jim O. Whitworth’s Motion to Compel Defendant Ford Motor Company’s Person Most Knowledgeable to appear for deposition is GRANTED.

Code Civ. Proc. Section 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, 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.”

Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear or produce documents, without having served a valid objection, the noticing party 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. Subdivision (b) provides that any motion to compel deposition “shall be accompanied . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Although no “meet and confer” is required where the deponent “fails to attend the deposition and produce the documents … described in the deposition notice,” the moving party must show that he or she has contacted the deponent “to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2).)

Leko v. Cornerstone Bldg. Inspection Serv. (Leko) (2001) 86 Cal. App. 4th 1109, 1124 provides: “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue. Here, the failure to appear was due to oversight and opposing counsel expressed a willingness to reschedule the depositions at a mutually convenient date.”

Code Civ. Proc. § 2025.450(g)(1)(2) states: “On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party 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.”

Krotin v. Porsche Cars N. Am., Inc., (1995) 38 Cal. App. 4th 294, 302, as modified on denial of reh'g (Sept. 14, 1995) provides: “[T]he Act creates an affirmative duty upon the manufacturer or its representative to provide restitution or replacement when a covered defect, i.e. a “nonconformity” (Civ. Code, § 1793.22, subd. (e)(1)), is not repaired after a reasonable number of attempts. As Porsche and amici curiae emphasize, Civil Code section 1794 does bring the Commercial Code into play.”

Here, Plaintiff’s counsel has noticed the deposition twice and Defendant refused to produce a witness. The topic at issue is: “Why YOU failed to replace or repurchase the SUBJECT VEHICLE pursuant to the Song-Beverly Consumer Warranty Act prior to the filing of this lawsuit (“YOU” and “YOUR” includes FORD MOTOR COMPANY, its agents, its employees, its insurance companies, its accountants, its investigators, its attorneys where not protected under the attorney-client privilege, its authorized service and repair facilities, their agents, their employees, their accountants, their investigators, their attorneys where not protected under the attorney-client privilege, and anyone else acting on FORD MOTOR COMPANY’s behalf. “SUBJECT VEHICLE” means that certain 2019 FORD SUPER DUTY F-350, bearing Vehicle Identification Number 1FTBW3BT2KED83665 (VIN), which is the subject of this lawsuit).

Defendant’s refusal is based on Plaintiff’s admission that he did not request repurchase of the vehicle. However, based on the case law, an affirmative may arise regardless of whether Plaintiff affirmatively requested a repurchase. Defendant must produce a witness to testify regarding this topic. If the reason why Defendant did not repurchase the vehicle is that Plaintiff did not request a repurchase, Defendant’s witness can state this. Plaintiff is entitled to testimony regarding this subject under oath.

Based on the foregoing, the Court GRANTS Plaintiff Jim O. Whitworth’s Motion to Compel Defendant Ford Motor Company’s Person Most Knowledgeable to appear for deposition.

The Court declines to award sanctions given the Plaintiff’s poor efforts to meet and confer prior to filing the Motion.

Plaintiff to give notice.

Future hearing dates:

10/13/22 – Motion for Terminating Sanctions

2/6/23 – Jury Trial