TENTATIVE RULING

Calendar: 8

Date: 5/17/2024

Case No: 23 GDCV01010 Trial Date: October 20, 2025 

Case Name: Martinez, et al. v. KIA America, Inc.

MOTION TO COMPEL DEPOSITION

Moving Party: Defendant Kia America, Inc.     

Responding Party: Plaintiffs Ana I. Martinez and Alvaro O. Hernandez     

RELIEF REQUESTED:

Order compelling plaintiffs to attend and testify at a deposition and produce documents.

MONETARY SANCTION:

None sought 

DECLARATION SUPPORTING MOTION:

Reasonable and good faith attempt to resolve informally: Yes, Ex. C 

FACTUAL BACKGROUND:

Plaintiffs Ana I. Martinez and Alvaro O. Hernandez allege that in October of 2022, plaintiffs purchased a 2022 Kia EV6 with an accompanying written warranty issued by 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, including electrical and suspension 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 plaintiffs’ 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.  

The complaint alleges three causes of action under the Song-Beverly Consumer Warranty Act, for Breach of Express Warranty, Breach of Implied Warranty, and Civil Code section 1793.2. 

ANALYSIS:

Defendant Kia Motors America, Inc. seeks by this motion to compel plaintiffs to attend and testify at deposition and produce documents.  

CCP § 2025.450 (a) provides, in pertinent part:

“(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, or to produce for inspection any document, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

Defendant indicates that defendant has served a Notice of Taking Deposition of Plaintiffs and Request for Production of Documents at Time of Deposition, plaintiffs have served objections to the notice on the ground the depositions were unilaterally set on a date and time that plaintiffs and plaintiffs’ counsel were unavailable, and also objected to the requests for production of documents.  [Rabiee Decl., paras. 2, 3, Exs. A, B]. 

Defendant indicates that counsel has emailed plaintiffs’ counsel on three occasions requesting dates for plaintiffs’ depositions, but has not received a response to the emails. [Rabiee Decl., paras. 4, 5, Ex. C].     

The court notes 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 expressly provides with respect to Depositions:

“Deposition:  Within the time limits allowed by law, Defendant may depose plaintiff….”

[Order, section 4]. 

To the extent the Deposition Notice requests that documents be brought to the deposition, with respect to Production of Documents, the Order provides:

“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.

b. Work orders, repair orders, and invoices (including accounting and warranty versions) for any maintenance, service and repair activity concerning the subject vehicles.

c. Rental car or loaner agreements regarding alternative transportation provided during service or repair visits concerning the subject vehicle.

d. Records of communications with dealer personnel, and/or factory representatives and defendant’s call center or customer assistance personnel concerning the subject vehicle.

e. Warrant claims submitted to and/or approved by defendant concerning the subject vehicle.

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.

i. Technical Service Bulletins and Recall Notices for vehicle purchased or leased in California for the same year, make and model of the subject vehicle.

j. Copies of any repair instruction, bulletin, or other diagnostic/repair procedure identified in any of the repair order/invoice records for the subject vehicle.

k. Receipts or other written evidence supporting any incidental or consequential damages claimed by plaintiff….

The information may be provided to the opposing party in electronic form as a PDF at the option of the producing party….

Any additional requests for documents may only be propounded by stipulation and/or court order (via motion upon showing of good cause).

[Order section (2)(a)-(k)].

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. 

5. Repair orders and invoices concerning the subject vehicle.

6. Communications with dealer, factory representative and/or call center concerning the subject vehicle.

7. Warranty claims submitted to and/or approved by Defendant concerning the subject vehicle. 

8. Purchase and/or lease contract concerning the subject vehicle. 

9. Repair orders and invoices concerning the subject vehicle. 

10. Any documents supporting plaintiff’s claim for incidental and/or consequential damages.”

RULING:

Motion to Compel Deposition of Plaintiffs is GRANTED.  

Plaintiffs Ana I. Martinez and Alvaro O. Hernandez are ordered to appear for deposition and give testimony in this matter by June 21, 2024 (within about thirty days) at 9:00 a.m., at the law offices of plaintiff’s counsel.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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