Arbildo v. Ford Motor Company, et al. CASE NO. 113CV240186
DATE: 11 April 2014 TIME: 9:00AM LINE NUMBER: 5
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 10 April 2014. Please specify the issue to be contested when calling the Court and counsel.
On 11 April 2014, the motion of plaintiff Shannon Arbildo (“Plaintiff”) to compel the deposition of defendant Ford Motor Company (“Defendant”) and production of documents, request for leave to take the deposition after the discovery cut-off, and for monetary sanctions was argued and submitted. Defendant filed a formal opposition to the motion.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).
I. Statement of Facts
This is a lemon law action arising out of Plaintiff’s purchase of a motor vehicle from Defendant on 26 December 2008. Defendant manufactured and warranted the vehicle. Plaintiff alleges that the vehicle suffers from serious defects and nonconformities. Plaintiff further alleges that Defendant has failed to remedy the defects, issue a refund, or replace the vehicle. Consequently, Plaintiff filed this lawsuit, asserting two causes of action for violations of the Song-Beverly Consumer Warranty Act and the Magnus-Moss Warranty Act. The trial date is set for 5 May 2014 and the discovery cut-off date is 5 April 2014.
II. Discovery Dispute
On 5 June 2013, Plaintiff noticed the deposition of Defendant’s person most qualified for 18 June 2013. In her deposition notice, Plaintiff identified 15 matters for examination concerning procedures for complying with the Song-Beverly Consumer Warranty Act (Matters 1-4), all warranty claims, repairs, and documents of investigations with regard to the subject vehicle (Matter 5, 6, 9, and 14), all recalls and technical service bulletins with regard to the vehicle (Matter 7), all documents reviewed by the deponent in preparation for the deposition (Matter 8), all documents produced by Defendant in the litigation (Matter 8) , all documents Defendant cannot or will not produce (Matters 10-11), and all communications regarding Plaintiff or the vehicle (Matter 12 and 13).
On 13 June 2013, Defendant served a number of written objections to the deposition notice, including an objection as to the timing of the deposition.
On 14 June 2013, 21 June 2013, and 1 July 2013, Plaintiff’s counsel sent a series of meet-and-confer letters to defense counsel, requesting alternate dates for the deposition. In response, defense counsel indicated that he would only discuss the matter in person. Accordingly, Plaintiff’s counsel provided dates for a meet-and-confer conference in September, October or November. Defense counsel did not agree to meet on any of these dates.
After further correspondence between counsel, the parties held meet-and-confer discussions on 3 January 2014, 20 January 2014, and 19 February 2014, regarding the deposition. On 12 March 2014, dissatisfied with the meet-and-confer process, Plaintiff’s counsel indicated that Plaintiff would file a motion to compel.
On 19 March 2014, Plaintiff filed this motion to compel the deposition of Defendant’s person most qualified and production of documents, a request for leave to take the deposition after the discovery cutoff, and for monetary sanctions. On 28 March 2014, Defendant filed its opposition. Plaintiff filed her reply on 4 April 2014.
III. Discussion
Plaintiff moves for an order compelling the deposition of Defendant’s person most qualified (“PMQ”), compelling production of documents attendant to the deposition notice, and allowing the deposition to take place after the discovery cut-off.
A. Motion to Compel Deposition
Plaintiff seeks to compel the deposition of Defendant’s PMQ, arguing that the Defendant’s objections to the deposition notice are meritless.
1. Legal Standards
If, after service of a deposition notice, a party to the action, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for the examination or to produce documents for inspection, 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 described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) The moving party must set forth specific facts showing good cause exists for the production of any document described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).)
2. Analysis
Plaintiff contends that Defendant’s objections to each of the matters for which examination is requested are meritless, and therefore, the deposition should be compelled. Defendant argues that the matters are all irrelevant to this action and its PMQ’s appearance at the deposition would be unduly burdensome.
While Defendant objected to each matter in the deposition notice on a number of grounds, the only objections it attempted to justify are those discussed below. The remaining objections are therefore overruled. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221 [burden on the responding party to justify any objections].)
(a) Relevance
Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
Defendant argues that the only matters relevant to this action are specific factual inquiries concerning Plaintiff’s vehicle. Defendant’s argument is without merit.
With regard to the matters concerning Defendant’s corporate policies for repair and repurchase of vehicles, Plaintiff argues that testimony concerning these policies will provide evidence of willfulness relevant to the issue of civil penalties. Plaintiff’s argument is persuasive.
Pursuant to Civil Code section 1794, subdivision (c), if a purchaser of a vehicle establishes that the failure to comply with the provisions of the Song-Beverly Consumer Warranty act was willful, the judgment may include a civil penalty not to exceed two times the amount of actual damages. A violation is not considered “willful” if “the defendant’s failure to replace or refund was the result of a good faith and reasonable belief that facts imposing the statutory obligation were not present.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185 [e.g. manufacturer reasonably believed that product conformed to warranty].) Among the factors to be considered are: (1) whether the manufacturer knew the vehicle had not been repaired within a reasonable period or after a reasonable number of attempts, and (2) whether the manufacturer has a policy on the requirement to repair or replace. (Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 136.) While testimony concerning the corporate policies for repair and repurchase of vehicles does not appear to be relevant to Defendant’s liability for any specific defect in the subject vehicle or for failing to repair or repurchase, it may constitute circumstantial evidence of willfulness.
With regard to the remaining matters, testimony concerning all of them might reasonably assist Plaintiff in evaluating her case, preparing for trial, or facilitating settlement. Information concerning warranty claims, repairs, documents of investigations, and Defendant’s communications regarding her vehicle would allow her to determine whether Defendant improperly refused to repurchase her vehicle or refund her payments. Recalls and technical service bulletins would allow Plaintiff to establish that her vehicle was defective when purchased. Testimony concerning documents reviewed by the deponent in preparation for the deposition, documents produced, and documents Defendant could not or would not produce, could lead to the discovery of additional evidence in support of Plaintiff’s claims.
Accordingly, Plaintiff’s objections to the matters described in the notice of deposition on the ground of relevance are OVERRULED.
(b) Undue Burden
Next, Defendant contends that testimony concerning all of the matters at issue would be unduly burdensome. “[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (Id. at pp. 417-418.) In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (Ibid.) Defendant makes no particularized showing of facts demonstrating the hardship production of its PMQ for deposition would entail. Therefore, Plaintiff’s objections to the matters described in the notice of deposition on the ground of undue burden are OVERRULED.
3. Conclusion
Based on the foregoing, all objections to the matters described in the notice of deposition are overruled. Therefore, the production of Defendant’s PMQ for deposition is warranted, assuming that there is good cause to extend the discovery cut-off date to be discussed below in Section C.
B. Motion to Compel Attendant Production of Documents
Plaintiff also moves to compel the production of documents responsive to the notice of deposition. In its opposition, Defendant contends that the documents are irrelevant and production would be unduly burdensome.
As noted above, the moving party must set forth specific facts showing good cause exists for the production of any document described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)
The notice of deposition contains 15 categories of documents related to the matters of examination. As discussed more thoroughly above, all of the matters of examination are relevant to the subject matter of the action. Therefore, the documents relating to them are similarly relevant. Accordingly, good cause exists for the discovery sought.
While Defendant objected to the request for production of the documents on a number of grounds, the only objections it attempted to justify are those discussed below. The remaining objections are therefore overruled. (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)
Defendant objected to each request for production on the ground that it is irrelevant and the production of the discovery sought would be unduly burdensome. Defendant’s arguments are not persuasive. First, as noted above, each of the requests for documents is relevant to the subject matter of this action. Second, Defendant makes no particularized showing of facts demonstrating the hardship production of the documents pursuant to the notice of deposition would entail. (See West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at pp. 417-418.) Therefore, Defendant’s objections to the request for production of the documents on the grounds of relevance and undue burden are overruled.
Based on the foregoing, the production of documents pursuant to the notice of deposition is justified, assuming that there is good cause to extend the discovery cut-off date to be discussed below.
C. Request to Extend Discovery Cut-Off
Plaintiff requests leave to take the deposition of Defendant’s PMQ after the discovery cut-off date, contending that she has been attempting to depose Defendant’s PMQ since June of last year and Defendant has repeatedly reneged on its promise to produce its PMQ. In opposition, Defendant argues that the testimony sought is irrelevant to this case.
1. Legal Standard
Any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th before the date initially set for trial. (See Code Civ. Proc., § 2024.020, subd. (a).) The Court has discretion to allow a party to complete discovery proceedings closer to the initial trial date. (See Code Civ. Proc., § 2024.050.) In exercising its discretion to permit discovery beyond the cut-off date, the Court may consider: (1) the need and reasons for further discovery, (2) the diligence of the party seeking the discovery and the reasons the discovery was not completed earlier, and (3) the likelihood that permitting the discovery will prevent the case from going to trial on the date set or result in prejudice to any other party. (Code Civ. Proc., § 2024.050, subd. (b).)
2. Necessity for Further Discovery
Plaintiff contends that the deposition of Defendant’s PMQ is necessary to obtain Defendant’s corporate polices and procedures to establish her entitlement to civil penalties based on Defendant’s willful violation of the Song-Beverly Consumer Warranty Act.
As discussed in detail above, Defendant’s policies and procedures regarding the Song-Beverly Consumer Warranty Act will allow Plaintiff to uncover circumstantial evidence relevant to the issue of civil penalties. Therefore, the discovery of this information is necessary and this factor favors the extension of the discovery cut-off date.
3. Reasons Discovery Not Completed Earlier
Plaintiff argues that the deposition was not completed earlier because, though Defendant acknowledged that Plaintiff was entitled to the deposition of its PMQ, Defendant would not provide a firm date for the deposition. Apparently, Plaintiff was under the impression that the parties could informally resolve the scheduling of a deposition without the assistance of the Court. As noted above, despite numerous meet-and-confer letters to defense counsel by Plaintiff’s counsel, Defendant did not participate in a meet-and-confer conference on the subject until January 2014, approximately six months after the service of the deposition notice. Over the next two months, the parties engaged in three separate meet-and-confer conferences to no avail. After the final meet-and-confer conference, Plaintiff gave Defendant one final opportunity to agree to a time for the deposition. When Plaintiff did not respond, Defendant filed this motion.
This Court believes that the correspondence shows that Plaintiff was reasonably lulled into a sense of believing that Defendant wanted to ultimately provide individuals for the PMK deposition in question.
Based on the foregoing, Plaintiff was diligent in attempting to resolve the dispute. Defendant provides no specific argument to the contrary. Therefore, this factor favors the extension of the discovery cut-off date.
4. Interference with Trial Date and Prejudice
Plaintiff contends that, should the deposition of Defendant’s PMQ be ordered promptly, the deposition would not prevent the case from going to trial on 5 May 2014, and the deposition would not cause any other prejudice to Defendant.
Plaintiff’s argument is meritorious. There is no reason Plaintiff cannot complete this one deposition and still proceed with trial. Once again, Defendant provides no specific argument to the contrary. Therefore, this factor favors the extension of the discovery cut-off date.
5. Conclusion
Accordingly, the request for leave to take the deposition after the discovery cut-off is justified.
D. Conclusion
Based on the foregoing, the motion for an order compelling the deposition of Defendant’s PMQ, compelling production of documents attendant to the deposition notice, and allowing the deposition to take place after the discovery cut-off is GRANTED.
IV. Plaintiff’s Request for Monetary Sanctions
Plaintiff makes a code-compliant request for monetary sanctions against Defendant in the amount of $ 2,550 pursuant to Code of Civil Procedure section 2025.450, subdivision (g).
If a motion to compel a deponent’s attendance, testimony, and/or production of documents is granted, the Court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, 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).) Here, while Plaintiff prevailed on her motion, Defendant’s opposition was substantially justified by asserting that discovery had closed. The request for monetary sanctions is DENIED.
V. Conclusion and Order
Plaintiff’s motion for an order compelling the deposition of Defendant’s PMQ, compelling the production of documents pursuant to the deposition notice, and allowing the deposition to take place after the discovery cut-off is GRANTED. Accordingly, within 10 calendar days of the date of the filing of this Order, Defendant’s PMQ(s) shall appear for deposition at a date and time that is mutually agreed upon by the parties, and produce responsive documents at that time.
The request for monetary sanctions is DENIED.

________________¬¬¬____________
DATED: _________________________¬¬¬________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara