Judge Jill Feeney, Case Number: 22STCV02983, Date: 2023-06-22 Tentative Ruling

Plaintiffs’ motion to compel the deposition of Defendant’s Person Most Qualified is GRANTED in part as to Categories 6, 9, 11, 12, 14, 16, 17, and 18 as set forth below and DENIED as to the remaining categories.

This is a lemon law action. Plaintiffs Brian Guadalupe Magallanes and Patricia Rodriguez allege that in March 2020, they purchased a 2020 Chevrolet Silverado 1500 from Defendant. Plaintiffs received an express written warranty in which Defendant undertook to preserve or maintain the utility or performance of the vehicle. After Plaintiffs took possession of the Vehicle and during the warranty period, the Vehicle contained or developed defects with its body system and suspension system. Defendant was unable to repair the Vehicle within a reasonable number of attempts.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)

If the deponent named in a deposition notice is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which the 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 Civ. Proc., section 2025.230.)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, or to proceed with it, 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.” (Code Civ. Proc., § 2025.450, subd. (a).)

Here, Plaintiffs’ counsel testifies that she served a deposition notice on March 7, 2022. (Oliva Decl., ¶13.) Defendant served objections and refused to produce a PMK. (Id., ¶14.) After efforts to meet and confer failed, the parties participated in IDC where the Court encouraged the parties to at least complete the deposition as to the categories agreed to be completed. (Id., ¶¶15-18.) The parties participated in a second IDC on March 9, 2023 where Defendant agreed to produce a PMQ for deposition in early May. (Id., ¶20.) On May 11, 2023, Defendant produced its PMQ witness on Categories 1-4, 7, and 10 as agreed by the parties. (Id., ¶23.)

Defendant argues that Plaintiffs ignored their obligation to meet and confer with Defendant in good faith because they made no attempt to address Defendant’s objections. Given that the parties participated in two IDCs, the Court is satisfied that Plaintiffs met their meet and confer requirements.

Defendant did not produce a PMQ as to matters 5,6, 8, 9, and 11-19. This motion will turn on whether Defendant’s objections were valid. If Defendant’s objections were not valid, Defendant is required to produce a PMQ as to the matters specified in the deposition notice.

Defendant generally objected to each disputed Category on the grounds that the requests were vague and ambiguous, improperly assumed there were defects, where overbroad, unduly burdensome, irrelevant, oppressive, and not limited to the subject vehicle. Defendant also objected to Categories 8, 9, and 11-19 on the grounds that the category sought information that was protected by attorney-client privilege and the attorney work-product doctrine.

Throughout Plaintiffs’ separate statement, Plaintiffs cite Donlen v. Ford Motor Company (2013) 217 Cal.App.4th, 138 and Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 in support of their position. However, Donlen concerned whether evidence of a non-warranty repair on the vehicle disputed in that case was relevant or prejudicial. It did not concern whether evidence of the manufacturer’s policies and procedures were relevant. Doppes likewise concerned whether an award of terminating sanctions was proper and did not concern the scope of discovery.

Plaintiff also argues that information that is relevant to whether a party’s violation of the Song Beverly Act was willful is discoverable because the information is relevant to whether a defendant is liable for a civil penalty. Plaintiff cites Oregel¿v. American Isuzu Motors, Inc.¿(2001) 90 Cal.App.4th 1094 in support of this argument. Thus, information about whether a violation of the Song Beverly Act was willful is discoverable.

On June 22, 2023, the Court previously granted Plaintiff’s motion to compel Defendant’s further responses to requests for production. However, Plaintiff’s requests were limited to documents pertaining to vehicles of the same make and model as the subject vehicle and to documents from the time of Plaintiff’s purchase to the present. As will be explained below, the motion is granted in part subject to the same limitations.

Category 9: Questions regarding YOUR ongoing efforts to repair or remedy the SUSPENSION DEFECT, including all internal tests, investigations and the number of modification made to YOUR vehicles with the suspension system used in the SUBJECT VEHICLE, including the number of such modifications made to YOUR vehicles which are the same year, make and model as the SUBJECT VEHICLE.

Category 14: Questions regarding any communications concerning the SUSPENSION DEFECT, including the cause of the SUSPENSION DEFECT, all available remedies, and discussions of any and all modifications of YOUR vehicles suspension system and related parts provided to date, and the efficacy of those modifications.

These categories are overbroad because they seek information about all Chevrolet vehicles equipped with the same suspension system. Defendant’s objections are valid as to these categories.

However, the Court grants the motion with respect to these categories. Consistent with the Court’s June 22, 2023 order, these categories that seek information about Defendant’s knowledge of and efforts to repair the suspension defect must be limited to vehicles of the same year, make, and model as the subject vehicle. This information is relevant to whether Defendant’s failure to comply with the Song Beverly Act was willful, which would entitle Plaintiff to a civil penalty under Civ. Code, section 1794(c).

Category 11: Questions regarding all REPAIR DOCUMENTS that YOU have issued to YOUR dealers and/or consumers regarding the SUSPENSION DEFECT or other non-conformities experienced by Plaintiff with respect to the SUBJECT VEHICLE.

These categories concern Defendant’s policies and procedures regarding the Song Beverly Consumer Warranty Act. The categories are overbroad because they are not limited in time and scope. Plaintiffs fail to explain how all of Defendant’s policies and procedures will lead to discovery of admissible evidence. Defendant’s objections are valid as to these categories.

However, the Court grants the motion with respect to these categories. Consistent with the Court’s June 22, 2023 order, these categories that seek information related to Defendant’s procedures for the handling of complaints by consumers must be limited to policy and procedure information from the time of Plaintiff’s purchase to present.

Category 19: Questions regarding YOUR preservation of, search for, and production of documents and data, both hard copy and electronically stored information, relevant to the claims and defenses in this litigation, including all steps taken to prevent or stop deletion, overwriting or modification of electronically stored information that may be relevant to this action.

Defendant objects to the category on the grounds it is impermissible “discovery on discovery,” citing Advante Int’l Corp. v. Mintel Learning Tech. (N.D. Cal. Nov. 21, 2006) No. C 05-01022, 2006 WL 3371576. The court in Avante held that discovery about discovery does not constitute information reasonably calculated to lead to the discovery of admissible evidence.

This category is not related to Plaintiffs’ claims. Rather, it seeks information about how Defendant preserved its discovery materials in preparation for litigation. There is no evidence that Defendant has withheld evidence. Defendant’s objections to this category are valid.

Category 8: Questions regarding the nature of the SUSPENSION DEFECT, including the cause of the POWERTRAIN DEFECT, all available fixes that have been made available to your authorized dealers to date, and the subsequent results of such fixes.

The Court finds that these categories seek information that is not relevant to Plaintiffs’ claims. Plaintiffs fail to explain how the remaining categories are relevant to their claims and this fails to show good cause justifying the production of these documents. Fixes for the suspension defect and powertrain defect in other vehicles are not relevant to Plaintiff’s claims.