Roger Horne et al vs Nissan North America Inc

Case Number

23CV04426

Case Type

Hearing Date / Time

Fri, 05/03/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For the reasons set forth herein, plaintiffs’ motion is granted. Counsel for both parties are ordered to appear at the hearing and be prepared to provide the court with no fewer than seven days that they, and the person most qualified, are available to conduct the deposition. The dates given are to be days prior to July 12, 2024.

Monetary sanctions in the amount of $2,000.00 are awarded in favor of plaintiffs and against defendant, to be paid to plaintiffs’ counsel no later than May 31, 2024.

Background:

This action commenced on October 6, 2023, by the filing of the complaint by plaintiffs Roger L. Horne and Kim St. Aubin (collectively, plaintiffs) against defendant Nissan North America, Inc. (Nissan) for breach of implied warranty and breach of express warranty in violation of the Song-Beverly Consumer Warranty Act.

As alleged in the complaint:

On July 7, 2023, plaintiffs purchased a new 2023 Nissan Rogue. (Complaint, ¶¶ 5, 6.) An express warranty accompanied the sale of the vehicle by which Nissan “undertook to preserve or maintain the utility or performance of the subject vehicle.” (Complaint, ¶ 9.) The vehicle was delivered to plaintiffs with “serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, electrical and other defects and nonconformities.” (Complaint, ¶ 11.)

Plaintiffs delivered the vehicle to an authorized Nissan repair facility for repair of the defects and nonconformities on multiple occasions, but Nissan has been unable or refused to conform the vehicle to the express and implied warranties after a reasonable number of attempts. (Complaint, ¶¶ 12, 13.)

Nissan filed the operative amended answer on November 27, 2023, asserting a general denial and 10 affirmative defenses.

In January 2024, Horne noticed the deposition of Nissan’ person most qualified (PMQ), with production of documents. (Ullman Dec., ¶ 2 & Exh. 1.) The deposition was noticed for February 7, 2024, and contained five matters on which the PMQ would be examined and 14 categories of documents to be produced. (Ibid.)

On February 2, 2024, Nissan served its objections to the notice of deposition. (Ullman Dec., ¶ 2 & Exh. 2.) [Note: Pursuant to the objections, Nissan agreed to produce its PMQ, after meeting and conferring regarding a mutually acceptable date, time, and location, except for topics 4 and 5 where it is indicated that no witness will be produced.]

On February 7, 2024, through February 20, 2024, the parties met and conferred regarding Nissan’s refusal to produce a witness for topic 4, as well as a mutually agreeable date for the deposition. (Ullman Dec., ¶¶ 3, 4.) It is not clear why, but topic 5 is not addressed in the meet and confer correspondence submitted by plaintiffs.

While it appears that the parties are still engaged in discussions to select a mutually agreeable date, as well as address topic 4, Horne filed the present motion to compel the deposition of Nissan’s PMQ and request for sanctions. It is unclear from the moving papers if topic 5 is in dispute and it does not appear to have been addressed in the meet and confer correspondence.

Nissan has not filed an opposition or any other responsive document to the motion.

Analysis:

            Motion to Compel Depositions

“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).)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc., § 2025.010.)

“(a) A party desiring to take the oral deposition of any person shall give notice in writing. The deposition notice shall state all of the following, in at least 12-point type:

“(1) The address where the deposition will be taken.

“(2) The date of the deposition, selected under Section 2025.270, and the time it will commence.

“(3) The name of each deponent, and the address and telephone number, if known, of any deponent who is not a party to the action. If the name of the deponent is not known, the deposition notice shall set forth instead a general description sufficient to identify the person or particular class to which the person belongs.

“(4) The specification with reasonable particularity of any materials or category of materials, including any electronically stored information, to be produced by the deponent.

“(5) Any intention by the party noticing the deposition to record the testimony by audio or video technology, in addition to recording the testimony by the stenographic method as required by Section 2025.330 and any intention to record the testimony by stenographic method through the instant visual display of the testimony. If the deposition will be conducted using instant visual display, a copy of the deposition notice shall also be given to the deposition officer. Any offer to provide the instant visual display of the testimony or to provide rough draft transcripts to any party which is accepted prior to, or offered at, the deposition shall also be made by the deposition officer at the deposition to all parties in attendance. Any party or attorney requesting the provision of the instant visual display of the testimony, or rough draft transcripts, shall pay the reasonable cost of those services, which may be no greater than the costs charged to any other party or attorney.

“(6) Any intention to reserve the right to use at trial a video recording of the deposition testimony of a treating or consulting physician or of an expert witness under subdivision (d) of Section 2025.620. In this event, the operator of the video camera shall be a person who is authorized to administer an oath, and shall not be financially interested in the action or be a relative or employee of any attorney of any of the parties.

“(7) The form in which any electronically stored information is to be produced, if a particular form is desired.

“(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:

“(i) The deposition officer.

“(ii) The entity providing the services of the deposition officer.

“(B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.” (Code Civ. Proc., § 2025.220, subd. (a).)

“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 the 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.” (Code Civ. Proc., § 2025.230.)

Plaintiff’s notice fully complies with Code of Civil Procedure sections 2025.220 and 2025.230.

Plaintiffs are asking for two things: (1) That a date for the PMQ deposition be set; and (2) That the Nissan PMQ be ordered to testify as to all 5 topics. Those topics are:

1. “Questions relating to the nature and extent of the service history and warranty history relating to the SUBJECT VEHCLE.”
2. “Questions relating to all COMMUNICATIONS between YOU and Plaintiff, or anyone on Plaintiff’s behalf.”
3. “Questions relating to all COMMUNICATIONS between YOU and other PERSONS regarding the SUBJECT VEHICLE.”
4. Questions relating to any affirmative steps taken by YOU to determine if the SUBJECT VEHICLE qualified for repurchase or replacement prior to the date Plaintiff’s lawsuit was filed.” and
5. “Questions relating to the WARRANTY NONCONFORMITY(S) complained of by Plaintiff or made on behalf of Plaintiff.”

“SUBJECT VEHICLE” is defined as: “the 2023 Nissan Rogue purchased by Plaintiff.”

As noted above, Nissan has, in theory, agreed to produce its PMQ for all topics except for Nos. 4 and 5, but has refused to provide available dates.

Plaintiffs argue that the topic 4 information is relevant and discoverable as follows: “This matter seeks information on the steps that Defendant took to determine whether the vehicle qualified for repurchase prior to the lawsuit being filed. Manufacturers have an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts. Lukather, 181 Cal.App.4th at 1050. See also Krotin v. Porsche Cars N. Am., Inc. (1995) 38 Cal.App.4th 294, 303. Plaintiff contacted Defendant or its authorized service facilities on multiple occasions regarding the vehicle’s defects. It is proper for Plaintiff to seek discovery into steps Defendant took in response to Plaintiff’s complaints about the vehicle’s defects, including communications with others at Defendant, Defendant’s technical assistance hotline, and authorized dealership personnel. Testimony on this matter could guide this dispute toward a swift resolution, and would assist the finder of fact in determining whether Defendant willfully violated the Act.” (Sep. Stmnt., p. 9, ll. 12-22.)

The court agrees with plaintiffs that the topic seeks information that would either be admissible or lead to the discovery of admissible evidence. Nissan has failed to justify any of the objections in either an opposition or in the meet and confer correspondence attached to the declaration of plaintiffs’ counsel. Nissan’s objections are without merit.

Nissan will be ordered to provide dates of availability for the deposition of its PMQ and produce the PMQ relative to each of the 5 topics set forth in the deposition notice.

            Sanctions

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

The court does not find that Nissan acted with substantial justification in failing to provide dates for producing their PMQ for nearly three months and failing to provide any legal authority for their refusal to provide a PMQ to testify regarding topic No. 4. No other circumstances make the imposition of sanctions unjust.

Plaintiffs’ counsel declares that he has spent four hours preparing the motion. He anticipates spending an additional one hour reviewing Nissan’s opposition and two hours preparing a reply. (Ullman Dec., ¶ 5.) Plaintiff counsel’s hourly rate is $625.00 per hour. As Nissan did not file and serve an opposition, no review of one is necessary, nor is preparation of a reply. If requested, plaintiffs would be entitled to $625.00 per hour for the four hours spent preparing the motion. That amounts to $2,500.00. However, plaintiff only requests total sanctions of $2,000.00. Monetary sanctions in the amount of $2,000.00 will be ordered.