Judge: Ronald F. Frank, Case: 23TRCV02169, Date: 2024-07-30 Tentative Ruling
Case Number: 23TRCV02169 Hearing Date: July 30, 2024 Dept: 8
Tentative Ruling
HEARING DATE: July 30, 2024
CASE NUMBER: 23TRCV02169
CASE NAME: Alex D. Branzburg v. Jaguar Land Rover North America, LLC, et al.
MOVING PARTY: Plaintiff, Alex D. Branzburg
RESPONDING PARTY: Defendant, Jaguar Land Rover North America, LLC
TRIAL DATE: March 24, 2025
MOTION: (1) Plaintiff’s Motion to Compel Deposition of Defendant’s PMK
Tentative Rulings: (1) GRANT in part and ARGUE in part. The Court is inclined to grant the compelled deposition for a date sooner than December 2024, and to discuss which of the 16 categories of documents remain at issue given Jaguar’s non-specific opposition on this aspect of the MTC. The Court will need to hear from defense counsel as to the delay in offering any alternative deposition dates last November or December.
I. BACKGROUND
A. Factual
On July 6, 2023, Plaintiff, Alex D. Branzburg (“Plaintiff”) filed a complaint against Defendants, Jaguar Land Rover North America, LLC, and DOES 1 through 10. The complaint alleges causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act section 1793.2.
Plaintiff notes that on November 6, 2023, he served a notice of deposition of Defendant’s Person Most Knowledgeable (“PMK”) which detailed thirty-four (34) matters for examination requested and containing sixteen (16) written requests for production of documents for the deposition, which was noticed for November 21, 2023. On November 14, 2023, Plaintiff notes that Defendant served its objections and did not provide a PMK witness as noticed on a rather short time frame. Plaintiff argues that Defendant’s response consisted of “boilerplate” objections to each matter for examination, as well as “boilerplate” objections to each and every request for production of documents.
Plaintiff contends that on December 7, 2023, he served an amended deposition notice of Defendant’s PMK that was noticed for December 21, 2023. On December 12, 2023, Plaintiff notes that Defendant served objections to Plaintiff’s amended deposition, and no alternative dates were provided. Apparently, the parties or their counsel have a past history of discovery disputes that would lead to unilateral notices of a deposition on such short notice very close the holidays. There is nothing in the record that shows a genuine effort to meet and confer on future availability of the deponent for the desired PMK deposition when the PMK designess was not available last November or December.
Belying the apparent urgency for such short notices in November and December of 2023, it was not until June 11, 2024, that Plaintiff served his second amended deposition notice of Defendant’s PMK, and once again unilaterally noticed it for June 25, 2024. Not surprisingly, on June 13, 2024, Defendant again served the same boilerplate objections, and again failed to provide alternative dates.
As such, Plaintiff has brought this motion to compel the deposition of Defendant’s PMK and production of documents.
B. Procedural
On July 1, 2024, Plaintiff filed this motion to compel the deposition of Defendant’s PMK and production of documents. On July 17, 2024, Defendant filed an opposition brief. On July 24, 2024, Plaintiff filed a reply brief.
II. ANALYSIS
Preliminarily, this Court notifies the parties that it will be granting the motion and issuing an order compelling the attendance of a Jaguar PMK or PMKs to appear for deposition. This Court will seek oral argument from defendant was to why no alternative dates were previously offered, and oral argument from Plaintiff as to why the subject of a re-scheduled date for the jaguar witness’ deposition were not discussed between mid-December of 2023 and June of 2024. The declaration of defense counsel, Robert Cho, indicates that on July 17, 2024, after this motion was filed, and the same day the opposition was filed, Defendant finally offered the date of December 17, 2024, as the earliest availability for the deposition of Defendant’s PMK. The Court finds that surprising and will need confirmation at the hearing as to asserted lack of availability of a knowledgeable witness for such a long period.
A. Legal Standard
Code of Civil Procedure section 2025.450, section (a) provides:
“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 under Section 2025.230, 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.”
(Code Civ. Proc., § 2025.450, subd. (a).)
The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)
B. Discussion
i. Meet and Confer
Plaintiff notes that he has made good faith efforts to meet and confer prior to the bringing of this action. Plaintiff’s counsel originally sent a meet and confer letter on December 7, 2023, which encouraged Defendant to provide alternative dates for the PMK deposition, should it have been necessary. Further, Plaintiff notes that on June 18, 2024, after receiving Defendant’s objections to Plaintiff’s second amended notice of PMK deposition, Plaintiff’s counsel emailed Defendant, requesting alternative dates for the deposition to occur. Based on the fact that Defendant has not raised meet and confer issues in its opposition, and that the declaration from Plaintiff’s counsel as well as attached exhibits indicate that Plaintiff sufficiently attempted to meet and confer prior to bringing this motion, this Court finds that Plaintiff has sufficiently done so.
ii. Document Categories at PMK Deposition
The motion to compel also seeks production of 16 categories of documents at the PMK deposition. While Plaintiff prepared a separate statement concerning the Defendant’s opposition indicates that it either stands on all of its objections to each and every category of documents, but also indicates that it has already produced some of the documents, the minimalist opposition brief makes no mention at all of the duces tecum for the PMK deposition or any response to Plaintiff’s separate statement.
The Court has a factual vacuum for addressing the document production aspect of this motion to compel. The Court does not know what documents Defendant has allegedly already produced, and when it produced those documents, and what Plaintiff’s rejoinder might be as to which of the 16 categories remain at issue. With respect to the categories, the Court’s preliminary ruling on the objections raised by defendant are as follows:
1. The request for the deponent to bring JLRNA’s “entire original file” regarding plaintiff’s vehicle is rather vague. This is more a scope for an expert, not a PMK, as there may be no such thing as a “file” for the subject vehicle. Most of the defense objections do not pertain to this category in the duces tecum and would be overruled, but the Court would sustain the vagueness objection without some further showing as to what that means for a PMK.
2. The request for policies and procedures for JLRNA authorized repair facilities in handling customer complaints will be compelled, the objections other than attorney-client privilege being overruled. As to the privilege objection, the Court will require a privilege log for JLRNA to identify the documents, if any, being withheld on privilege grounds.
3. This category seeking communications between the South Bay dealer and some unnamed person cannot be compelled because it does not indicate the other party to the communications. If Plaintiff intends to seek documents between the dealer and JLRNA regarding the subject vehicle, this category does not so state; a separate or amended RFP could be served to obtain those responsive documents.
4. This category seeks all documents or files maintained by JLRNA regarding the subject vehicle is also vague but could be clarified by reference to types of files as learned from previous litigation that Plaintiff’s counsel may had with Jaguar, i.e., the vehicle history file, the warranty reimbursement records, the files from Jaguar’s customer assistance department, etc.
5. This category seeks all handwritten notes regarding Plaintiff’s request that Defendant repurchased the subject vehicle. Subject to the privilege limitations that in-house counsel or that a JLRNA employee might have reflecting notes of a discussion with inhouse or outside counsel, and subject to the limitation on production of documents in a party’s care, custody or control, the Court would compel production of these responsive documents.
6. Category 6 also seeks all handwritten notes JLRNA maintains “regarding” the subject vehicle. The Court is inclined to sustain some of the objections to this category including privilege and overbreadth. Normally, the parties’ meet and confer could narrow the scope of limit the breadth of what is being sought here, as noted with respect to category 4. The Court will discuss whether production of other more narrowly tailored categories will address what plaintiff sought by this category.
7. Call logs, a term of art in the motor vehicle industry as to records made of phone calls or emails from or with the plaintiff, are typically produced without objection in Lemon Law litigation. Subject to the privilege limitations that in-house counsel or that a JLRNA employee might have a call log of a discussion with inhouse or outside counsel, and subject to the limitation on production of documents in a party’s care, custody or control, the Court would compel production of these obviously discoverable documents.
8. The PMK’s job description, assuming one exists in writing, should be produced and objections to this category would be overruled.
9. Category 9 seeks documents that JLRNA reviewed in deciding whether to or how to respond to Plaintiff’s buyback requests. While this category on its face appears to assume that plaintiff made a buyback request and that JLRNA made a response, and subject to the privilege limitations that communications with in-house counsel or outside counsel would not be produced but identified in a privilege log, the Court would compel production of these responsive documents if any exist.
10. This category seeks document the deponent PMK consulted in preparing for the deposition. The Court sustains the attorney work product and attorney-client privilege objections to this category, but if there are non-privileged responsive document the Court would compel production of them.
11. Policy and procedure documents for Song-Beverly Act compliance including any “buy back manual” provided to decision makers would be ordered to be produced, at least such a manual or reference materials that were in effect as of the time Plaintiff or counsel made any pre-litigation request or demand for a buyback, subject to the privilege limitations that communications with in-house counsel or outside counsel would not be produced but identified in a privilege log.
12. Call 12 is overly broad because it is not limited to California or the time period when Plaintiff’s vehicle was subject to consideration for a buy back. This category would normally be narrowed (as per item 11 above).
13. This category, probably a subset of Category 11, is overly broad and would need to be narrowed to pertain to California and the time period when Plaintiff’s vehicle was subject to consideration for a buy back.
14. The Court’s review of this call is the same as call 13.
15. The TSB category is one as to which the Court normally grants a motion to compel, but limited to a repair complaints or symptoms that Plaintiff reported during the repair history, as contrasted with broach characterizations of things such as “electrical system” or “transmission” complaints. Vehicles have a host of technical literature generated for repair technicians to use as to every system in a modern-day vehicle, and repair or installation instructions for nearly every component or body panel. It is overly broad to require production of every technical bulletin for the same make and model and model year as plaintiff’s and it is not reasonably calculated to lead to the discovery of admissible evidence as to repair procedures or bulletins for repair complaints plaintiff did not experience.
16. Documents that “support” an affirmative defense in the case appears to the Court to call for attorney work product, because which of the 30 affirmative defense JLRNA “intends to assert in this action” would involve defense counsel’s mental impression and case evaluation. The Court would sustain the objection to this category.
The Court will entertain oral argument as to a reasonable time period for defendant to gather responsive documents in advance of the PMK deposition, whenever it occurs.