Judge Ralph C. Hofer, Case Number: 23GDCV00207, Date: 2024-09-06 Tentative Ruling

Plaintiffs Davin Lamont Stovell and Roshaun Carlise Stovell allege that in July of 2020, plaintiffs purchased a 2021 Kia Telluride, with an accompanying written warranty from defendant Kia America Inc., pursuant to which Kia America, Inc. agreed to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiffs allege that the vehicle was delivered to plaintiffs with serious defects and nonconformities to warranty, and developed other serious defects and nonconformities to warranty, including the vehicle’s structural, electrical, engine and emission system defects.

Plaintiffs allege that the defects and nonconformities to warranty manifested themselves within the express warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiffs delivered the vehicle to manufacturer’s authorized repair facility for repair of the nonconformities, and defendant has been unable to conform plaintiff’s vehicle to the applicable express warranties after a reasonable number of repair attempts. The complaint alleges that notwithstanding plaintiffs’ entitlement, defendant has failed to either promptly replace the new motor vehicle or to promptly make restitution in accordance with the Song-Beverly Act.

“(a) 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, …the party giving the notice may move for an order compelling the deponent's attendance and testimony…”

The moving papers establish here that plaintiffs were served with a deposition notice on February 28, 2023, for a deposition to take place on May 4, 2023. [Maxwell Decl., para. 2, Ex. A]. On April 20, 2023, plaintiffs served objections to the notice based on unavailability and unilateral notice. [Maxwell Decl., para. 3; Exs. B, C].

Since then, in response to plaintiffs’ objections, defendant has emailed counsel for plaintiffs requesting dates for plaintiffs’ depositions, on April 20, 2023, May 26, 2023, August 11, 2023, September 19, 2023, and November 29, 2023, but no response has been provided. [Maxwell Decl., paras. 4-9; Ex. D]. As of the date of the filing of the motion, on January 16, 2024, plaintiffs have not responded to defendant’s numerous attempts to obtain alternate deposition dates. [Maxwell Decl., para. 9].

This showing is sufficient to establish that plaintiffs, parties to the action, have failed to appear for deposition. There is no timely opposition to this motion, so plaintiffs have not met plaintiffs’ burden of establishing that any of plaintiffs’ objections are valid. Also, any objections concerning unavailability are no longer valid in light of plaintiffs’ failure to provide available dates for well over a year. The court orders the depositions to proceed on a date certain.

(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.”

The documents requested appear related to the claims being made by plaintiffs in this action, including, for example, documents concerning the purchase of the vehicle, and those reflecting repairs, maintenance, estimates or other service or maintenance work performed on the vehicle. There appears to be good cause for the production of documents at deposition. As discussed above, defendant has made numerous attempts to meet and confer concerning the deposition notice. Again, plaintiffs have failed to file timely opposition to this motion, so have failed to meet their burden to justify objections. The motion accordingly is granted. The deposition and production of documents also is ordered as requested.

The parties are reminded that this matter is 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 and entered by the Court on January 24, 2023, and was revised, signed and entered on January 11, 2024

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 provisions concerning discovery in Song-Beverly matters which appear to address the discovery disputes raised by the current motion. 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.

With respect to the documents requested, production is to be made and the depositions conducted in accordance with the Order and Notice. If there is some further dispute concerning the production of documents or the conduct of the depositions, the parties must comply with the Order and Notice, and meet and confer in good faith concerning any outstanding discovery in light of the Order and Notice, and, if necessary, pursue a further motion which must be accompanied by a separate statement reflecting the then current status of any 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 file shows that on May 8, 2023, the parties lodged a Stipulation and Protective Order—Confidential Designation Only, which was signed by the court as its order and filed on May 9, 2023. This protective order should eliminate the need for the parties to assert any objections based on confidentiality, trade secrets or private or propriety information.

Plaintiffs Davin Lamont Stovell and Roshaun Carlise Stovell are ordered to appear for depositions and give testimony in this matter by no later than October 4, 2024 (within thirty days) at 9:00 a.m., at the law offices of plaintiff’s counsel, and at the same location, respectively. Good cause appearing, plaintiffs are ordered to produce for inspection at the depositions any and all materials described in the Notice of Taking Deposition of Plaintiffs and Request for Production of Documents at Time of Deposition served on February 28, 2023, which are 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 materials which are consistent with this Court’s Notice to All Counsel Re: Lemon Law Cases for Department D, Customary Rulings Re Document Requests (Song Beverly Litigation).

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