Judge Michelle C. Kim, Case Number: 21STCV39005, Date: 2023-08-07 Tentative Ruling

Judge: Michelle C. Kim, Case: 21STCV39005, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV39005 Hearing Date: August 7, 2023 Dept: 31

TENTATIVE

Plaintiffs’ motion to compel the deposition of Gavin Labeet is GRANTED. Gavin Labeet is ordered to appear for deposition within 30 days of this order. The request for production of documents is GRANTED as to items 1-4, and 6-7, but DENIED as to item 5. Plaintiffs’ request for sanctions is GRANTED. Defendant Kia America, Inc. and its counsel of record, Lehrman, Villegas, Chinery, & Douglas, LLP, are ordered to pay sanctions in the amount of $1,185 within 30 days of this order.

Legal Standard

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”¿ (Code Civ. Proc., § 2025.010.)

A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) A party-affiliated witness is an officer, director, managing agent, or employee of a party. (Id.)

Where a deponent fails to appear or produce documents at a deposition, Code of Civil Procedure § 2025.450 permits a party to seek a motion to compel a deposition. The motion is permissible after a party fails to appear without having served a valid objection pursuant to Code of Civil Procedure § 2025.410. (Code Civ. Proc., § 2025.450(a).)

The motion must include specific facts demonstrating good cause for the production of documents or items and must be accompanied by a declaration setting forth facts demonstrating that a good faith and reasonable attempt at informal resolution has been made. (Code Civ. Proc., § 2025.450(b).)

CCP section¿2025.450(g)(1) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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).)

Discussion

Plaintiffs seek to take the deposition of Defendant’s employee, Gavin LaBeet, who is the individual responsible for handling and evaluating the merits of Plaintiffs’ repurchase request. Plaintiffs anticipate that Defendant will argue that it extended a pre-litigation repurchase “offer” for a repurchase or replacement of Plaintiffs’ vehicle which absolves it of any liability for Plaintiffs’ damages under the Song-Beverly Act. Yet, Defendant will continue maintain that even though it extended a prelitigation repurchase letter, Plaintiffs’ vehicle never qualified for repurchase or replacement as a lemon in the first place. Rather, Defendant will attempt to argue that the offer was merely extended out of customer service or goodwill. As the final decision maker for Plaintiffs’ repurchase request, Plaintiffs seek to ascertain Mr. LaBeet’s rationale for extending a repurchase offer, what information and documents he considered when he evaluated Plaintiffs’ repurchase request, how he calculated the repurchase amount, whether the terms of the release referenced in Defendant’s pre-litigation offer was disclosed to Plaintiffs, and whether he found that the vehicle qualified for repurchase or replacement since Defendant maintains a policy not to document the rationale for its decisions in writing. To that end, Plaintiffs are entitled to conduct discovery into how Mr. Labeet evaluated and handled Plaintiffs’ repurchase request due to his personal involvement.

On January 19, 2023, Plaintiffs served a notice of deposition for Defendant’s employee, Gavin LaBeet, with 7 requests for documents, which was noticed for February 3, 2023. (Samra Decl., ¶ 2; Ex. 1.) On January 26, 2023, Defendant served objections to Plaintiffs’ Notice of Deposition of LaBeet, including stating that the witness will not be appearing for deposition at the unilaterally noticed date and time. Counsel for defendant advised that Defendant is willing to meet and confer as to available dates. (Samra Decl., ¶ 3; Ex. 2.) On January 31, 2023, Plaintiffs sent Defendant a meet and confer letter addressing Defendant’s objections and invited Defendant to propose dates and times for the necessary deposition to be completed by the close of business on February 2, 2023. (Samra Decl., ¶ 4; Ex. 3.) On February 2, 2023, Plaintiffs’ counsel emailed Defendant to follow up on Plaintiffs’ meet and confer correspondence. Plaintiffs requested Defendant to provide an alternative, mutually-convenient date so that the deposition at issue could be re-noticed accordingly. (Samra Decl., ¶ 5; Ex. 4.)

On February 3, 2023, having received no response from Defendant, Plaintiffs were forced to take a statement of nonappearance for Mr. LaBeet’s failure to appear for deposition. (Samra Decl., ¶ 6; Ex. 5.) Plaintiffs’ counsel informed Defendant that a non-appearance was taken for the deposition of Mr. Labeet. Plaintiffs once again requested that Defendant provide alternate dates for this deposition as indicated in Defendant’s objections. Defendant never responded. (Samra Decl., ¶ 7; Ex. 6.)

Plaintiffs argue that there is good cause to compel the deposition and production of documents of LaBeet because the information sought is highly relevant to Defendant’s anticipated defense at trial that (1) the vehicle never qualified for repurchase, (2) that Defendant’s offer was made out of customer satisfaction interests or goodwill, and (3) Defendant’s offer extinguishes it of liability under the Song-Beverly Act.

First, the information, documents, and criteria used by Mr. LaBeet that led him to arrive to the decision to extend a repurchase offer is highly relevant as to whether Defendant determined that the vehicle qualified for repurchase because it had a substantial impairment of its use, value, or safety that was not repaired within a reasonable number of repair attempts. Such evidence and testimony is relevant to negate any contention that Kia extended its pre-litigation repurchase letter due purely out of goodwill or customer service.

Further, evidence and testimony as to how Mr. Labeet calculated the financial terms contained in the pre-ligation repurchase letter is highly relevant to the issue of whether Defendant’s offer complied with the Song-Beverly Act. Evidence of a “lowball” pre-litigation offer is evidence of a willful violation of the Song-Beverly act. (Bishop v. Hyundai (1996) 44 Cal.App.4th 750, 758.)

Second, Defendant’s pre-litigation repurchase letter was conditioned on many improper terms—including requiring Plaintiffs to agree to a release agreement without disclosing those terms. (Samra Decl., ¶ 8; Ex. 7.) Plaintiffs seek to discover whether the release agreement terms were disclosed, and what are the terms of Defendant’s release.

Third, Defendant’s pre-ligation repurchase letter imposes an improper term that the vehicle must be returned in a certain condition or risk further deductions.

Defendant argues in opposition that the motion should be denied as moot because it has offered September 6, 2023 and September 7, 2023 for Mr. LaBeet’s deposition. Plaintiffs, however, refuse to either withdraw the Motion or postpone the hearing date until after the proposed deposition dates. Gavin LaBeet is a former Escalated Case Administrator (ECA) for Kia America, Inc. As an ECA, he evaluated customer requests for repurchases. Currently, Mr. LaBeet is in a different position and has other job responsibilities. Plaintiffs’ counsel has noticed Mr. LaBeet’s deposition in numerous other cases in which he was the ECA. Plaintiffs’ counsel refuses to accept a person most knowledgeable other than Mr. LaBeet or will insist on deposing Mr. LaBeet even if a PMK has been produced. As a result, Mr. LaBeet’s schedule is heavily impacted by these other depositions. Nevertheless, Defendant was able to offer two dates for the deposition.

Further, Defendant has already produced the documents relevant or reasonably calculated to lead to the discovery of admissible evidence to prove Plaintiffs’ prima facie case, including the Vehicle’s repair history, warranty covering Plaintiffs’ vehicle, relevant portions of the Call Matrix, warranty history, campaign list, Techline Assistance Center Case Reports, Consumer Assistance Case Reports, and relevant portions of the Service Policies and Procedures Manual.

Defendant contends that discovery concerning the settlement negotiations between the parties is not reasonably calculated to lead to the discovery of admissible evidence, because the settlement negotiations are inadmissible. Defendant argues, Plaintiffs may not, therefore, use Defendant’s settlement offers against it, as they admit they are attempting to do. However, the Court finds this information may nevertheless lead to the discovery of admissible evidence.

Defendant also argues that it is improper to ask a witness questions about legal issues, either at a deposition or in front of a jury, to explain the basis for a party's litigation conduct -- yet that is what Plaintiffs propose to do. Plaintiffs seek testimony regarding the legality of settlement agreements and releases under Song-Beverly; the calculation of repurchase offers under Song-Beverly; the amounts that may be deducted from a repurchase offer under Song-Beverly; and whether a manufacturer may require a vehicle to be returned in a certain condition as part of a settlement under Song-Beverly. All of these are legal issues that are not the proper subject of a deposition. The Court finds this argument is premature. There are no questions before the court demonstrating that Plaintiffs will be seeking improper testimony. Defendant’s general argument that the questioning will be improper is unconvincing.

Lastly, Defendant provides that if a Settlement Agreement was drafted, this will be produced. However, Plaintiffs are not entitled to templates used to draft settlement release agreements. These are writings that are created by and updated by Defendant’s attorneys. They reflect the conclusions, opinions, legal research and theories of Defendant’s attorneys and are “not discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd. (a).) The Court finds this argument has merit.

As Defendant’s employee was properly served with the notice of deposition and request for documents, and Defendant’s employee did not appear, the motion to compel Defendant’s employee to appear for deposition and produce documents is GRANTED. The Court finds Defendant’s objections based on the deposition being unilaterally sat invalid in light of Plaintiffs’ many attempts to meet and confer with Defendant over a date that would be suitable. Gavin LaBeet is ordered to appear for deposition within 30 days of this order.

As to the document requests, it appears Defendant has produced some documents at issue. But as Plaintiffs point out, Defendant has not stated which items of the document requests it will or has complied with, leaving Plaintiffs and the Court to guess. Defendant states it is amenable to producing a settlement agreement, if one exists. As such, the motion as to items 1-4 and 6-7 are granted. The Court orders the production of all nonprivileged documents responsive to items 1, 2, 3, 4, 6, and 7. The request for document production relating to the template of the settlement agreement (5) is denied, as Plaintiff has not made any substantive arguments to Defendant’s valid contention that this is work product.

As the motion is granted, Plaintiff’s request for sanctions under CCP section¿2025.450(g)(1) is also granted. The Court does not find that Defendant acted with substantial justification in delaying the taking of the deposition for about seven months. Defendant only proposed a date for LaBeet’s deposition when this motion was filed, requiring the Court the weigh in and compel the deposition. Nevertheless, the Court finds the amount requested unreasonable. The Court imposes sanctions in the amount of $1,185 (3 hours at $375 per hour, $60 filing fee,) against Defendant Kia and its counsel of record, Lehrman, Villegas, Chinery, & Douglas, LLP, to be paid within 30 days of this order.

Conclusion

Based on the foregoing, Plaintiffs’ motion to compel the deposition of Gavin Labeet is GRANTED. Gavin Labeet is ordered to appear for deposition within 30 days of this order. The request for production of documents is GRANTED as to items 1-4, and 6-7, but DENIED as to item 5. Plaintiffs’ request for sanctions is GRANTED. Defendant Kia America, Inc. and its counsel of record, Lehrman, Villegas, Chinery, & Douglas, LLP, are ordered to pay sanctions in the amount of $1,185 within 30 days of this order.

Moving party is ordered to give notice.