Judge Ralph C. Hofer, Case Number: 23GDCV01698, Date: 2025-03-14 Tentative Ruling

Plaintiff Maria Funes alleges that in October of 2021 plaintiff purchased a 2022 Kia Sorento, in connection with which defendant Kia America, Inc. issued a written warranty, in which defendant Kia America, Inc. undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that the vehicle was delivered to plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities, including engine, electrical, and emission system defects.

Plaintiff alleges that the defects manifested themselves in the vehicle within the applicable warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff alleges that plaintiff delivered the vehicle to an authorized repair facility to repair the nonconformities, but defendant has been unable to conform the vehicle to warranty after a reasonable number of repair attempts.

Plaintiff seeks an order compelling defendant Kia America, Inc. (Kia) to produce its Person Most Knowledgeable to appear and testify at a deposition and produce documents requested in the deposition notice.

Plaintiffs indicate that despite numerous meet and confer efforts, defendant Kia continues to maintain its objections to the categories and document requests and refuses to produce its witness or provide an alternative date for the deposition. [Ardi Decl., paras. 17-20, Ex. 5].

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party..., 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.”

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event the deponent shall designate and produce at deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

The moving papers sufficiently establish that defendant, a party to the action, for its person most knowledgeable to testify, was served with deposition notice, and that the objections to those notices objected to the selected deposition date, but defendant has failed since January of 2024 to provide mutually agreeable dates for the deposition, and has failed to appear for examination as noticed. [Ardi Decl., paras. 14-23]. Plaintiff is accordingly entitled to an order compelling defendant’s attendance and testimony. The opposition indicates that defendant Kia intends to provide its PMK for deposition, and that there is a newly assigned PMK and defendant is working on getting a deposition date. [Proudfoot Decl., para. 5]. Given the delay in providing a firm date for the deposition, the failure to offer such a date in the opposition papers, and the upcoming discovery cut off, the court orders that the deposition take place on a date certain to be determined at the hearing.

(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 memorandum argues that there is good cause for production of the requested documents because they are relevant to whether defendant complied with the Song-Beverly Act, including breach of the express warranty and implied warranty of merchantability, and are calculated to obtain admissible evidence of defendant’s willful violation of the Act. The requests seek documents pertaining to the subject vehicle, and other documents which appear pertinent to the lawsuit.

Defendant in the opposition argues that this motion was not necessary as Kia has always maintained it will produce its PMK on a mutually agreeable date and time, and Kia has already produced or referred plaintiff to responsive documents. There is no indication that any date was ever offered for a PMK deposition in this action.

It is not clear why defendant has not offered a single specific date in the many months since the deposition notice was served, and the period before this motion was filed, and even in the opposition itself. The motion is accordingly granted, and the deposition and production of documents is ordered. Any argument that documents already have been produced is rejected by the court, as plaintiff is entitled to documents responsive to the current form of discovery, and so that the deponent can be examined with respect to the documents produced. Any objection that the deposition was unilaterally set has not been justified by the opposition, given the failure to provide any proposal at all for a mutually convenient date.

Defendant also argues, despite its protestations of willingness to fulfill its discovery obligations, that plaintiff has failed to set forth specific facts showing good cause justifying their discovery requests. As discussed above, sufficient good cause has been established by the moving papers.

In addition, as conceded in the opposition, 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 provision 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.

The court 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. Plaintiff’s Notice of Deposition designates 34 matters on which the PMK is to be examined, in addition to subparts. [See Ex. 3]. There has been no motion made by plaintiff to show good cause for more than six subjects. The court will hear at the hearing which of the five categories plaintiff will be pursuing at the deposition, along with the issue as to why the vehicle was not repurchased. Defendant will be ordered to designate a person or persons to appear and testify on the designated subjects on a date certain within the next twenty days. The court will hear whether the parties will require a court order extending the discovery cut-off in this matter.

With respect to the documents requested, the production is to be made and the deposition conducted in accordance with the Order and Notice. If there is some further dispute concerning the production of documents or the conduct of the deposition, 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 reflects that on November 9, 2024, this court signed and filed as its order a Stipulation and Protective Order—Confidential Designation Only submitted by the parties. The entry of such a protective order should make it unnecessary for the parties to assert any further objections that the discovery seeks confidential, proprietary or trade secret information.

Defendant Kia America, Inc. is ordered to designate and produce witness(es) to appear for deposition and to give testimony on a mutually convenient date and time as to the matters requested in Plaintiff’s Notice of Deposition of Defendant Kia America, Inc.’s Person(s) Most Knowledgeable and Custodian(s) of Record and Request for Production of Documents served on January 31, 2024, no later than April 18, 2025, limited to the following five designated categories of information, plus deposition of the PMK as to why the subject vehicle was not repurchased.

Good cause appearing, the deponent(s) is (are) also ordered to produce for inspection at the deposition any and all materials described in the subject notice 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).

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. Department D is now requiring either live or VIDEO appearances, not audio appearances. Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.