Judge: Michael Shultz, Case: 22CMCV00311, Date: 2023-10-31 Tentative Ruling
Case Number: 22CMCV00311 Hearing Date: October 31, 2023 Dept: A
[TENTATIVE] ORDER
I.
BACKGROUND FACTS
The
complaint alleges that Plaintiff bought a vehicle made and distributed by
Defendant. The vehicle suffered from widespread defects that Defendant failed
to repair within a reasonable number of attempts in violation of the
Song-Beverly Consumer Warranty Act.
Plaintiff
requests an order to compel Defendant to produce its person most qualified
(“PMQ”) to testify on the topics identified in Plaintiff’s Notice of Deposition
served on August 16, 2023. Defendant objected and refused to produce a witness
despite attempts to meet and confer. Plaintiff sent a video link for the
deposition set for August 31, 2023; however, Defendant did not appear. Plaintiff
requests imposition of monetary sanctions.
In
opposition, Defendant argues that Plaintiff failed to meet and confer and never
attempted to address Defendant’s objects or contested categories. Defendant
argues the categories of inquiry are patently irrelevant. Defendant agreed to
produce a witness on some of the categories of inquiry.
Plaintiff
argues in reply that Plaintiff has continued to meet and confer with Defendant who
refuses to produce a witness, although Defendant concedes that the deposition
must occur. Imposition of sanctions is warranted.
III.
LEGAL STANDARDS
If a party fails to appear
for a deposition after service of a deposition notice, without having served a
valid objection, the party giving notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any
document or tangible thing described in the notice. (Code Civ.
Proc., § 2025.450.) The
moving party must show good cause for the deposition and attempt to meet and
confer. (Id.)
IV.
DISCUSSION
Plaintiff
has attempted to meet and confer without success. Defendant offers no
substantive or persuasive argument for failing to produce its witness.
Defendant’s objections that Plaintiff’s requests for information regarding
“repairs” and “service” are vague and ambiguous are without merit. Defendant has
not supported its contention that it is entitled to unilaterally limit
Plaintiff’s inquiries to certain categories without moving for a protective
order. Refusing to produce a witness without requesting a protective order is
impermissible. Defendant’s contention that the information Plaintiff seeks will
“reveal nothing” is not a permissible objection. Plaintiff is entitled to
discover facts that fall within the broad scope of discovery.
As the Court has previously articulated
in the same lemon law motions involving General Motors, to prevail on a claim
for violation of the Song-Beverly Consumer Warranty Act (“the Act”) Plaintiff’s
burden is to establish that “(1) the vehicle had a nonconformity covered by the
express warranty that substantially impaired the use, value or safety of the
vehicle (the nonconformity element); (2) the vehicle was presented to an
authorized representative of the manufacturer of the vehicle for repair (the
presentation element); and (3) the manufacturer or his representative did not
repair the nonconformity after a reasonable number of repair attempts (the
failure to repair element). " (Oregel v. American Isuzu Motors, Inc.
(2001) 90 Cal.App.4th 1094, 1101.)
All categories of inquiry are relevant,
not vague, or ambiguous, or overbroad. To the extent Defendant objects to
testimony concerning confidentiality, trade secret, attorney-client privilege,
work product, or any other privilege, Defendant’s remedy is to object to the
question at the time of the deposition, not limit testimony as it deems
appropriate or refuse to produce a witness. Alternatively, Defendant could move
for a protective order, a remedy Defendant did not pursue.
None of the objections have merit.
Plaintiff is entitled to testimony requested. The scope of documents extending
to vehicles of the same make and model (“other vehicle evidence”) is relevant
because Plaintiff must establish Defendant’s knowledge of the power train
defect in the same vehicle as stated previously. The Act requires the manufacturer
to designate service and repair facilities throughout the state which enables
the manufacturer to become aware of every failed repair attempt. (Krotin v.
Porsche Cars North America, Inc. Krotin (1995) 38 Cal.App.4th,
294, 303; Donlen v. Ford Motor Co. (2013)
217 Cal.App.4th 138, 154 [Testimony about a defective transmission installed in
plaintiff’s truck and other trucks and what the manufacturer did to notify
dealers and technicians about problems with this transmission model was
“certainly probative and not unduly prejudicial."]
The categories of inquiry are equally
relevant to Plaintiff’s burden of establishing Defendant’s non-compliance with
its obligations under the Act to reasonably attempt to repair the vehicle. (Oregel
at 1101.) This is relevant to the recovery of civil penalties if the buyer can
show that “the manufacturer's failure to comply was willful. The penalty is
important ‘as a deterrent to deliberate violations. Without such a provision, a
seller or manufacturer who knew the consumer was entitled to a refund or
replacement might nevertheless be tempted to refuse compliance in the hope the
consumer would not persist, secure in the knowledge its liability was limited
to refund or replacement.’” (Jensen v. BMW of North America, Inc. (1995)
35 Cal.App.4th 112, 136.)
To establish this violation, the jury can
consider whether “(1) the manufacturer knew the vehicle had not been repaired within
a reasonable period or after a reasonable number of attempts, and (2) whether
the manufacturer had a written policy on the requirement to repair or replace.
(Id. at pp. 185-186.)” (Jensen at 136.)
Defendant has not established that
compliance with the deposition request will be unreasonably burdensome and
oppressive or will require trade secret material. Defendant’s remedy,
once again, is to move for a protective order, not refuse to respond or
unilaterally impose limitations on Plaintiff’s discovery. To support an
objection of oppression, there must be some showing by the opposing party
either of an intent to create an unreasonable burden or that the ultimate
effect of the burden is incommensurate with the result sought. (West Pico Furniture Co. v. Superior
Court (1961) 56 Cal.2d 407, 417.) Oppression must
not be equated with burden; “[t]he objection based upon burden must be
sustained by evidence showing the quantum of work required, … .” Id.
Defendant has not met its burden.
Plaintiff is entitled to imposition of
sanctions for Defendant’s failure to show substantial justification for
refusing to produce a witness with knowledge of all relevant categories of
inquiry designated by Plaintiff. The Court finds that Plaintiff’s hourly rate
of $450 per hour for this type of motion is reasonable. Plaintiff spent a total
of five hours to prepare the motion and reply and to appear at the hearing which
the Court finds is reasonable. Accordingly, sanctions of $2,250 in attorney’s
fees are reasonable plus costs of $60.00 for a total sanction of $2,310.00.
V.
CONCLUSION
Based on the foregoing, Plaintiff’s
motion is GRANTED. Defendant is ordered to produce a witness or witnesses
qualified to testify on the topics identified in Plaintiff’s Notice of
Deposition within 10 days without limitation. Defendant, General Motors, LLC,
and its attorney of record, Erskin Law Group, are ordered to pay sanctions of
$2,310.00 to Plaintiff’s counsel within 10 days.