Judge Jill Feeney, Case Number: 22STCV24418, Date: 2023-08-14 Tentative Ruling

This is an action for breach of express and implied warranty, violation of civil code, section 1793.2(b), and fraud. Plaintiffs Lisa and Wade Thomas allege that they leased a new 2022 Nissan Leaf in April 2022. (Compl., ¶8.) Defendant Nissan North America made express warranties and undertook to preserve or maintain the utility or performance of the vehicle or to provide compensation if there was a failure in the utility or performance. (Compl., ¶8.) The vehicle had serious defects and nonconformities, including electrical, infotainment, and interior component defects. (Compl., ¶9.)

On July 28, 2022, Plaintiffs filed their Complaint alleging four causes of action for breach of express warranty, breach of implied warranty, violation of civil code section 1793.2(b), and fraud.

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 he 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 he served a deposition notice on January 3, 2023. (Daghighian Decl., ¶8.) Defendant served objections and refused to produce a PMK. (Id., ¶¶15.) After efforts to meet and confer failed, Plaintiffs sent another meet and confer letter requesting that Defendant confirm that it would produce a PMK by February 2, 2023. (Id., ¶18.) Defendant failed to respond. (Id., ¶19.) As of the filing of this motion, Defendant has not agreed to produce a PMK or provide deposition dates. (Id., ¶20.)

Defendant’s counsel represents that Plaintiffs served a new deposition notice on May 23, 2023, setting the deposition for July 12, 2023. (Khan Decl., ¶5.) Defendant served objections on July 6, 2023. (Id., ¶6.) The deposition of Defendant’s PMK went forward on July 12, 2023. (Id., ¶7.) Plaintiffs’ counsel on reply alleges that Defendant failed to produce witnesses for 3-9 of the matters noted in their deposition notice. (Martinez Decl., ¶6.) These categories concern Defendant’s policies and procedures for compliance with the Song-Beverly Act. (Id., ¶22.)

Defendant first argues that this motion should be denied because Plaintiffs failed to meet and confer over Defendant’s objections before the deposition of Defendant’s PMK Joe Sorzano. However, Defendant’s counsel’s declaration shows the parties met and conferred after the first deposition as to Defendant’s failure to produce a PMK as to matters 3-9. (Khan Decl., ¶9, Exh. A, Exh. E.) The Court is satisfied the Plaintiffs satisfied the meet and confer requirements of Code Civ. Proc., § 2025.450, subd. (a)(2).

Although Defendant argues that this motion is moot because it produced a PMK for deposition, Defendant was required to produce PMKs qualified to testify as to the matters specified in the deposition notice. Here, Plaintiffs allege Defendant failed to produce a PMK as to matters 3-9 which were included in the deposition notice. This motion will turn on whether Defendant’s objections were valid. If Defendant’s objections were not valid, Defendant is required to produce a PMK as to the matters specified in the deposition notice.

Matter number 3 seeks “All DOCUMENTS that Defendant reviewed, if any, in investigating the cause of the complaints regarding the SUBJECT VEHICLE and determining Defendant’s response to any of Plaintiff’s buyback requests.” Matter number 4 seeks “All facts, evidence, and identity and roles of persons concerning YOUR communications with Plaintiff and YOUR decision(s) to not repurchase/replace the Subject Vehicle.” Defendant’s objections to matters 3 and 4 state as follows:

“Nissan objects to this Matter because Plaintiffs fail to define the testimony sought with reasonable particularity. Nissan objects to this Matter as overbroad, including as to scope and time, and thus not reasonably calculated to lead to the discovery of admissible evidence. This Matter also calls for premature expert discovery or privileged information. Nissan also objects to the extent Plaintiffs seek information that is not within Nissan’s possession, custody, or control.”

The objections with respect to reasonable particularity and scope are not valid because matters 3 and 4 are properly limited to communications and documents about the subject vehicle. The objection that the information is not discoverable is not valid because documents about and the names of people involved in customer requests for repurchase are relevant to whether Defendant complied with and performed its obligations under the Song-Beverly Consumer Warranty Act. To the extent that the deposition notice would require production of documents that include materials covered by the attorney client or attorney work product privilege, those materials do not be produced.

There is also nothing about these requests that would require premature expert discovery. It is also unreasonable to state that Defendant does not have access to its own communications or the names of its own employees. Therefore, Defendants objections as to these matters are not valid.

Matter number 5: “Defendant’s policies, procedures, or other guidelines for repurchasing or replacing vehicles under the Song-Beverly Consumer Warranty Act and/or Magnusson-Moss Warranty Act, from 2017 to the present.”

Matter number 6: “YOUR efforts, policies, and procedures, from 2017 to the present, to comply with YOUR “affirmative duty to replace a vehicle or make restitution to the buyer if [YOU are] unable to repair the new vehicle after a reasonable number of repair attempts.”

Matter number 7: “YOUR policies and procedures with respect to YOUR authorized dealerships’ sales and warranty repair of vehicles under warranty, from 2017 to the Present.”

Defendant’s objections include similar objections as matters 3 and 4 and that the information has no bearing on whether Defendant was required to repurchase the vehicle under the Song-Beverly Consumer Warranty Act.

Defendant’s objections as to the scope of the requests are valid because the deposition notice seeks information about Defendant’s policies from up to five years before the subject vehicle was leased to Plaintiffs. Plaintiffs fail to explain how records from up to five years before the relevant events took place will lead to discovery of admissible evidence. Therefore, Defendant’s objections are valid as to matters 5-7.

Defendant’s objections to these matters are similar to its objections to Matters 3 and 4. These matters are not overbroad in scope because they are properly limited to the instant action and the issues raised in the Complaint and Answer. Additionally, this information is discoverable because the facts relate to Defendant’s denial of the allegations of the Complaint and the affirmative defenses raised in the Answer. Defendant’s objections as to these matters are therefore not valid.

Plaintiffs also allege that Defendant failed to produce responsive documents to Request for Production Numbers 12-23. These requests include requests for records of Defendant’s policies, procedures, instructions, and guidelines from 2017 to present. Defendant objected to these requests on the grounds that they are overbroad and not discoverable. The Court finds that these requests are overbroad because Plaintiffs fail to explain why records from up to five years before the events described in the Complaint will lead to the discovery of admissible evidence.

If a motion to compel deposition is granted, sanctions are mandatory 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. (Code Civ. Proc., § 2025.450, subd. (g)(1).)