Judge Ralph C. Hofer, Case Number: 22GDCV00514, Date: 2023-08-18 Tentative Ruling

Plaintiff Khristopher Kobaian alleges that in March of 2018, plaintiff entered into a warranty contract with defendant Ford Motor Company regarding a 2018 Ford F-150 vehicle which was manufactured or distributed by defendant Ford Motor Company. Plaintiff alleges that the warranty contract contained various warranties, including a bumper-to-bumper warranty, powertrain warranty, and emissions warranty.

Plaintiff alleges that since entering into the warranty agreement, and during the warranty period, the vehicle manifested defects and nonconformity to warranty, including but not limited to, the electrical system, the engine, and the transmission, which defects substantially impair the use, value, or safety of the vehicle.

Plaintiff alleges that defendant Ford Motor Company and its representatives have been unable to service or repair the vehicle to conform to the applicable express warranties after a reasonable number of opportunities, and have failed to promptly replace the subject vehicle or make restitution to plaintiff as required under Civil Code sections 1793.2 and Civil Code section 1793.1, and that plaintiff has been damaged by defendant’s failure to comply with its obligations. It is also alleged that defendant’s failure to comply was willful, in that defendant and its representatives were aware they were unable to service or repair the vehicle to conform to applicable express warranties and does not maintain a qualified third party dispute resolution process complying with statute, entitling plaintiff to civil penalties.

The complaint alleges that plaintiff delivered the subject vehicle to defendant Star Ford Lincoln for substantial repair on at least one occasion and that defendant Star Ford Lincoln failed to properly store, prepare and repair the subject vehicle in accordance with industry standards, proximately causing plaintiff damages.

The complaint alleges causes of action for violation of subdivision (D) of Civil Code section 1793.2, violation of subdivision (B) of Civil Code section 1793.2, violation of subdivision (A)(3) of Civil Code section 1793.2, breach of the implied warranty of merchantability, fraudulent inducement, and negligent repair.

Plaintiff seeks an order striking defendant Ford’s objections to plaintiff’s Third Amended and Agreed Notice of Deposition of the Person Most Knowledgeable of for Ford Motor Company and Demand to Produce Documents at Depositions, and seeks testimony concerning Category Nos. 1-4, 7-9, 11-19, and 21-24, and the production of documents responsive to Requests Nos. 1, 3, 12, 15, 17, 19, 31, 36, 40, 44, 46, 47, 57, 58, 59, 69, 70, 71, 74, 75, 76, 77, and 78.

The moving papers concede that the response served by defendant Ford agreed to produce witnesses in response to certain categories, and in fact defendant produced two PMK witnesses, each for two separate sessions of deposition beginning in December of 2023. Specifically, defendant produced PMK Thea Wilson to testify regarding categories 4-5 and 7, and PMK Greg West to testify regarding categories 1-4, 6-8, 10 and 20. [Exs. 6-10].

Categories Nos. 4-5 and 7 concern communications between Ford and any other person regarding the subject vehicle, Ford’s refusal to promptly repurchase the subject vehicle, and communications with plaintiff.

Categories Nos. 1-4, and 6-8 concern the nature and extent of all service and warranty history of the subject vehicle, the warranties provided by Ford, service advisory notices, technical service bulletins, recalls, defect investigations and other repair documents relating to the subject vehicle, communications regarding the subject vehicle, repair documents with respect to the subject vehicle, and communications with plaintiff.

Category No. 10 concerns the efforts of Ford to understand and repair the transmission defect including efforts undertaken in response to the defect in Ford vehicles equipped with the same transmission as the subject vehicle. The witness was produced only with respect to procedures performed on the subject vehicle.

Category No. 20 concerns the terms of Ford’s owner’s manual, maintenance schedule and warranties as related to the transmission defect. The witness was again produced to testify only as to the warranty that accompanied the subject vehicle.

This matter remains subject to the Addendum to Case Management Conference Order (Song-Beverly Litigation) (Order) applicable to Song-Beverly Litigation, now posted and available on the Los Angeles Superior Court website in connection with this Department, Glendale Courthouse, Department D. The Order was signed by the court on January 24, 2023.

Pursuant to that Order, “any formal discovery propounded and currently pending or outstanding by a party in this matter prior to the date of this CMC Order is stayed pending further order of the Court.”

The Order sets forth the following provision concerning discovery in Song-Beverly matters which appear to address the discovery disputes raised by the current motion and opposition. With respect to depositions, the Order provides:

4. Deposition: Within the time limits allowed by law. Defendant may depose plaintiff, and plaintiff may depose the person most knowledgeable (PMK) as to up to 5 categories of information, plus a deposition of the PMK as to why the subject vehicle was not repurchased, in addition to depositions of any experts identified by the parties, after a formal demand and exchange of expert witness information, per CCP § 2034. Parties shall meet and confer as to whether there is a need to take any additional depositions. Any additional depositions may only be noticed and taken by stipulation and/or court order (via motion upon showing of good cause).

If a deponent resides out of state, the deposition may be taken by video conference or telephone. The parties will not be required to travel to California, and the attorneys will not be required to travel out of state.”

“Production of Documents: Within 60 days of service of this Order both plaintiff and defendant shall provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side(s):

a. Purchase or lease contracts concerning the subject vehicle, including any associated documents reflecting OEM or aftermarket equipment installed at the dealership, ELWs or service contracts, and any other writings signed by the plaintiff at the point of sale.

f. Warranty Policy and Procedure Manual or similar policies or claim-handling procedures published by Defendant from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

g. Defendant’s written statements of policy and/or procedures used to evaluate customer requests for repurchase or replacement pursuant to “Lemon Law” claims, including ones brought under the Song-Beverly Consumer Warranty Act, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

h. A list of or compilation of customer complaints in defendant’s electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff, in vehicles purchased in California for the same year, make and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items. The list provided by defendant may be in the chart or spreadsheet format, and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers’ reported complaint, but shall not include the other customers’ names, addresses, phone numbers, e-mail addresses, or other personal identifying information.

If a party believes any of this information should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same. The default will be the standard Protective Order provided by the LASC in its website.

The parties are also directed to the Notice to All Counsel Re: Lemon Law Cases for Department D, entitled Customary Rulings Re Document Requests (Song Beverly Litigation) (Notice). That Notice provides:

“When the court is faced with a discovery dispute in a Song-Beverly case, the court will usually order that the plaintiff and defendant provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side:

1. Defendant shall produce the “Warranty Policy and Procedure Manual” published by Defendant and provided to its authorized repair facilities, within the State of California, for the period of [date of purchase] to present.

2. Defendant shall produce any internal analysis or investigation regarding defects alleged in plaintiff's complaint in vehicles for the same year, make and model of the subject vehicle. This includes Recall Notices and Technical Service Bulletins. Defendant is not required to do a search of emails.

3. Defendant shall produce any customer complaints relating to defects alleged in plaintiff’s complaint in vehicles purchased in California for the same year, make and model of the subject vehicle.

4. Defendant shall produce all documents evidencing policies and procedures used to evaluate customer requests for repurchase pursuant to the Song-Beverly Consumer Warranty Act, for the period of [date of purchase] to present.

This motion concerning compelling the further deposition and production of requested documents will accordingly be denied without prejudice to permit the parties the opportunity to comply with the Order, and to further meet and confer in good faith concerning the outstanding discovery in light of the Order and Notice, and, if necessary, reschedule the motion and file new papers and a separate statement reflecting the then current status of the discovery disputes, including in that separate statement as to each request and response any applicable language of the Order and Notice.

The court notes that the current motion is accompanied by a separate statement which makes no reference to the Order or Notice and does not appear to reference any specific testimony of the PMK witnesses which have already been produced which was somehow insufficient, or to set forth any specific question which was asked in the previous depositions which was not answered, insufficiently answered or improperly objected to. The court under such circumstances is unable to address the specific disputes.

The court also notes that the Order provides for PMK depositions for up to 5 categories of information, plus a deposition of the PMK as to why the subject vehicle was not repurchased. It appears that PMK witnesses have already been produced and deposed as to 12 categories of information, beyond the five categories permitted, and those categories included the additionally permitted category of why the subject vehicle was not repurchased (Category No. 5). Plaintiff has not complied with the requirement of the Order that any additional depositions may only be noticed and taken by stipulation or court order, via a motion upon a showing of good cause.

The court further notes that the moving papers have simply attached entire deposition transcripts without highlighting or explaining in the separate statement what portions of those deposition transcripts are relevant to this dispute or what questions, responses or objections are at issue. This presentation is not helpful to the court, and violates CRC Rule 3.1116 (c), under which with respect to the submission of deposition testimony as an exhibit to law and motion papers, “The relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”

With respect to further meet and confer and defendant’s production of a PMK witness for further deposition and further production of documents, the court also notes that the Order and Notice expressly indicate that this court permits discovery into customer complaints relating to defects alleged in plaintiff’s complaint in vehicles purchased in California for the same year, make and model of the subject vehicle, and policies and procedures used to evaluate customer requests for repurchase pursuant to the Song-Beverly Consumer Warranty Act, for the period of the date of purchase of the subject vehicle to present, not limited to the subject vehicle.

The court expects with respect to this particular dispute that notwithstanding plaintiff having exceeded the categories ordinarily permitted, the court would find that plaintiff has established good cause to compel discovery, both through PMK deposition and the production of documents at such a deposition, concerning these subjects from the Order, and would overrule any further objections by defendant that discovery must be limited to the subject vehicle in connection with these subjects. This result is consistent with the authorities relied upon by plaintiff in the moving papers and reply.

In Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, for example, the court of appeal found the trial court had improperly granted a motion for new trial in an action claiming violation of the Song Beverly Act, finding that the trial court had properly denied a motion in limine to exclude evidence “of any vehicle other than plaintiff’s truck,” and noting that the evidence had included the opinions of an expert that the transmission in the vehicle was defective before the consumer purchased the truck, based on “the fact that Ford had issued a special service message to dealers” about a transmission problem prior to plaintiff’s purchase. Donlen, at 143-144.

In Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, a consumer had brought an action for violation of the Song-Beverly Act, and the trial court had entered judgment on a jury verdict finding that the act had been unintentionally violated, but the court of appeal found that the trial court had abused its discretion in failing to impose terminating sanctions against defendant for violating discovery orders, in conduct characterized as stonewalling in producing “highly relevant documents.” Doppes, at 994. Those documents included:

“all documents relating to (1) customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor used on the Bentley Arnage; (3) all warranty repairs during the period of January 2002 to date of the Bentley Arnage related to the rust inhibitor used on the vehicle; (4) all customer complaints of a wax oil smell caused by the rust inhibitor on the 2002 Bentley Arnage; and (5) vehicle tests conducted on the 2002 model year Arnage to confirm whether there was a wax oil smell arising from the vehicle's rust inhibitor.”

The Order here appropriately applies these authorities in expressly permitting discovery of customer complaints relating to defects alleged in plaintiff’s complaint in vehicles purchased in California for the same year, make and model of the subject vehicle. The Order also provides an appropriate method for the parties to determine a proper definition of the subject defect.

To the extent defendant argues in the opposition that the documents requested in the deposition notice are duplicative of documents which were requested in written Requests for Production of Documents, and that this court has previously denied a motion to compel further production of certain of those documents, or plaintiff did not pursue further responses to certain of those requests, the court does not find this argument persuasive, in light of the provision of the Order staying discovery pending compliance with the Order, and the court expressly denying plaintiff’s previous motion “WITHOUT PREJUDICE.” [Minute Order 8/18/2023, p. 6]. The court also does not find persuasive defendant’s cost shifting arguments, given the permissible scope of discovery, and the requirements and limitations imposed in the Order and Notice.

The court notes that the file does not include a stipulated protective order in connection with discovery. If a party believes that a protective order is warranted, the procedures outlined in the Order, as set forth above, shall be followed. [See Order, section 2(a), paragraphs following (k)].

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person Most Knowledgeable and to Produce Documents at Deposition is DENIED WITHOUT PREJUDICE, pursuant to this Court’s Addendum to Case Management Conference Order (Song-Beverly Litigation), signed and entered by the Court on January 24, 2023.

The parties are ordered to meet and confer within five days concerning the conduct of a PMK deposition and production of documents at the deposition consistent with this Court’s Standing Order Re Discovery (Song-Beverly Litigation), signed and entered by the Court on January 24, 2023 as revised, signed and entered on January 11, 2024, as well as in accordance with this Court’s Notice to All Counsel Re: Lemon Law Cases for Department D, Customary Rulings Re Document Requests (Song Beverly Litigation), and with this minute order.

The parties are ordered to meet and confer in good faith concerning compliance with the Order, and to serve any further discovery or further discovery responses, and engage in any further discovery proceedings, including depositions, or further discovery motions, in compliance with the Order, the Notice, and this minute order.

If a party believes any of the information requested should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same. The default will be the standard Protective Order provided by the LASC in its website.

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