Judge: Joel L. Lofton, Case: 23AHCV02695, Date: 2024-07-01 Tentative Ruling

Case Number: 23AHCV02695    Hearing Date: July 1, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     July 1, 2024                                         TRIAL DATE: No date set.

CASE:                         JORGE LEDESMA, an individual, et al. v. NISSAN NORTH AMERICA, INC. a public entity; and DOES 1 through 10, inclusive.  

CASE NO.:                 23AHCV02695

Motion to Compel Deposition of Defendant Nissan North America, Inc.’s PMK

MOVING PARTY:               Plaintiffs Jorge Ledesma and Michelle Cardenas

RESPONDING PARTY:      No response or opposition filed.

SERVICE:                              Filed April 2, 2024

TENTATIVE RULING

Plaintiffs’ Motion to Compel Defendant’s Nissan’s PMK for Deposition and Request for Monetary Sanctions is GRANTED and Plaintiffs are awarded monetary sanctions in the reduced amount of $2,250.00.

BACKGROUND

             This is a Lemon Law Case arising out of Plaintiffs’ Jorge Ledesma (“Ledesma”) and Michelle Cardena’s (“Cardena”) (collectively “Plaintiffs”) Complaint filed on November 2023 for Restitution and Damages concerning an allegedly defective 2023 Nissan Kicks (“Vehicle”) Plaintiffs purchased from Defendant Nissan.

            On April 2, 2024, Plaintiffs filed the instant motion, along with a Proposed Order, a Separate Statement, and the Declaration of Scott A. Sanchez, one of Plaintiffs’ attorneys of record.

            Defendant Nissan did not file an Opposition.

            On June 25, 2024, Plaintiffs filed a Notice of Defendant Nissan’s Non-Opposition to the instant motion.

            Accordingly, there is no Reply.

DISCUSSION

            Motion to Compel Deposition

Plaintiffs seek to compel the deposition of Defendant Nissan’s PMK.

“If, after service of a deposition notice, a party to the action . . . , 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 . . . 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).)  

“A motion under subdivision (a) [above] shall comply with both of the following: 

1.     The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. 

2.     The motion shall be accompanied by a 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.” 

(Code Civ. Proc., § 2025.450, subd. (b).) 

A “motion [to compel compliance with a deposition notice or subpoena] shall be made no later than 60 days after the completion of the record of the deposition ….”  (Code Civ. Proc., § 2025.480, subd. (b).) 

            Meet and Confer Efforts

On December 19, 2023, Plaintiffs served their Notice of Deposition for Defendant Nissan’s PMQ. (Sanchez Decl., ¶ 5, Ex. A.) Then, on January 9, Plaintiffs sent Defendant Nissan a meet and confer correspondence regarding the upcoming deposition, as Plaintiffs had not yet received any objection or communication from Nissan. (Id. at ¶ 6, Ex. B.) Nissan subsequently replied and indicated to Plaintiffs that it would not be available for the deposition and it had not received the deposition notice. (Id.) Thus, on January 10, 2024, Plaintiffs sent Nissan a courtesy copy of the deposition notice and highlighted that the notice had been properly served. (Id. at ¶ 7, Ex. C.)

On January 12, 2024 Plaintiffs served their First Amended Notice. (Id. at ¶ 8, Ex. D.) On January 30, 2024, Nissan served objections to Plaintiffs’ First Amended Notice. (Id. at ¶ 9, Ex. E.) On January 30, 2024 Plaintiffs called Nissan again to meet and confer. (Id. at ¶ 10.) Unable to reach Nissan, Plaintiffs left a voicemail and sent a follow up correspondence reminding Nissan of their request to meet and confer to coordinate the PMK deposition. (Id.) As a compromise, Plaintiffs agreed to withdraw the contested category of other similar buybacks and document requests. (Id.) Plaintiffs also suggested a protective order to cover Nissan’s production of its lemon law policy and procedure manuals. (Id., Ex. F.) However, Nissan did not reply. (Id.)

Accordingly, on February 2, 2024, Plaintiffs served their Second Amended Notice which no longer contained the contested category and document request regarding Nissan’s lemon law buybacks of other similar vehicles. (Id. at ¶ 11, Ex. G.) On February 22, 2024, Nissan served another set of objection-only responses which were identical to their first objection-only responses. (Id. at ¶ 12, Ex. H.)

On March 1, 2024, Plaintiffs again called Nissan to meet and confer. Unable to reach Nissan and receiving no option to leave a voicemail, Plaintiffs sent another written meet and confer correspondence, reminding Nissan of their efforts to coordinate the deposition. (Id. at ¶ 13, Ex. I.) Plaintiffs also reiterated to Nissan of their concession in withdrawing a contested category and document request, as well as suggesting a protective order for the second time. (Id.) Nissan did not reply. (Id.)

Plaintiffs declare that rather than addressing the relevant issues and providing dates of availability for the deposition, Nissan is remaining silent and now ignoring Plaintiffs’ meet and confer efforts. (Id. at ¶17.) Plaintiffs’ Counsel, Sanchez, states Plaintiffs’ and Defendant’s counsel frequently oppose each other on other Nissan matters and Nissan has consistently maintained this pattern of being unresponsive and unwilling to produce a witness in response to deposition notices. (Id. at ¶¶ 14-18.)

Counsel Sanchez maintains that as of the date of the filing of the instant motion, Nissan still has not responded to Plaintiffs’ latest meet and confer efforts, nor proposed any potential dates for deposition.

For the foregoing reasons, the Court finds Plaintiffs’ counsel have satisfied their meet and confer efforts.

Good Cause

Plaintiffs argue good cause exists to justify the production for inspection of documents described in the deposition notice, as well as compel the deposition of Nissan’s PMK because Plaintiffs’ seven categories of testimony and ten document requests go to the essential elements of Plaintiffs’ express and implied warranty and damage claims. (Motion to Compel (“Mot.”), pg. 9.)

Thus, the following categories are essential elements of Plaintiffs’ claims: (1) why Nissan did not repurchase the vehicle pursuant to the lemon law pre-suit; (2) questions about the service, repair and communication history related to the vehicle and Plaintiffs; (3) questions relating to Nissan’s investigation of the service history; and (4) questions about the warranty nonconformities of which Plaintiffs complain. The document requests seek: (1) documents evidencing repairs to the vehicle; (2) photographs or videos Nissan may have of the vehicle; (3) communications not involving attorneys about the vehicle or Plaintiffs; (4) Nissan’s  customer service file; (5) the recalls and technical bulletins that apply to Plaintiffs’ vehicle; (6) Nissan’s and its dealers’/customer service representatives’ lemon law policies and procedures; and (7) copies of the documents Nissan relied on when it chose not to repurchase the vehicle pre-litigation. (Id. at pgs. 9-10.) Plaintiffs contend that these categories are straightforward, relevant to the claims in the case, are not overbroad in scope, and are not privileged or otherwise protected. (Id.) Moreover, this information is universally discoverable in lemon law cases. (Id.)

The Court finds Plaintiffs categories of testimony and document requests demonstrate good cause to support the deposition notice of Nissan’s PMK, as well the document requests. Plaintiffs’ action against Nissan is grounded in the express and implied warranties provided by lemon law. As such, discovery pertaining to Nissan’s service and repair history, warranty nonconformities, prior recalls, and lemon law policies and procedures are highly relevant.

Thus, Plaintiffs’ Motion to Compel Nissan’s PMK for deposition is GRANTED.

Sanctions

The Code of Civil Procedure section 2025.450(g)(1) provides in relevant part that if the motion is granted,   

“The court shall impose a monetary sanction under [Section 2023.010] 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.(g)(1).) 

Counsel Sanchez declares he has spent at least five hours preparing the instant Motion and related documents and meeting and conferring about this issue. (Sanchez Decl., ¶ 20.) Additionally, Sanchez anticipated spending at least two more hours reviewing Nissan’s Opposition, preparing Plaintiff’s Reply brief, and appearing at the hearing for a total of seven hours. (Id.) Sanchez’s hourly fee is $375.00 per hour. Thus, Plaintiffs request that the Court order sanctions in the amount of $2,625.00 against Defendant Nissan North America, Inc.

In this case, the Court finds Defendant Nissan has not demonstrated any substantial justification or circumstance that would deem the imposition of sanctions unjust. The Court has read Nissan’s objections and finds Nissan has been non-compliant and uncooperative with Plaintiffs’ meet and confer efforts and request to take the PMK’s deposition. The Court finds Nissan is obstructing the discovery process and that sanctions for the instant motion are, therefore, appropriate. Sanchez’s rate of $375 per hour is reasonable, as are the five hours billed for preparing the instant motion and engaging in the meet and confer efforts. However, Defendants did not file an opposition, and thus, Sanchez did not review one or draft a reply. As such, the Court will deduct one hour from Plaintiffs’ estimation of hours.

Thus, the Court awards $2,250 in sanctions against Defendant Nissan.

CONCLUSION

            Plaintiffs’ Motion to Compel Defendant’s Nissan’s PMK for Deposition and Request for Monetary Sanctions is GRANTED and Plaintiffs are awarded monetary sanctions in the reduced amount of $2,250.00.

Plaintiffs to give notice.

Dated:   November 9, 2023                                        ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court