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1 KNIGHT LAW GROUP, LLP
E-FILED
Steve Mikhov (SBN 224676) 12/14/2020 7:33 PM
2
stevem@knightlaw.com Superior Court of California
3 Amy Morse (SBN 290502) County of Fresno
amym@knightlaw.com By: C. York, Deputy
4 10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
5
Telephone: (310) 552-2250
6 Fax: (310) 552-7973
7 Attorneys for Plaintiffs,
JANET CORONA and
8 FELIPE HERNANDEZ
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF FRESNO
11
12 JANET CORONA and Case No.: 19CECG02708
FELIPE HERNANDEZ, Unlimited Jurisdiction
13
PLAINTIFFS’ NOTICE OF MOTION
14 AND MOTION TO COMPEL
Plaintiffs, DEPOSITION ATTENDANCE AND
15 PRODUCTION OF DOCUMENTS;
vs. MEMORANDUM OF POINTS AND
16 AUTHORITIES; AND REQUEST FOR
SANCTIONS
17
NISSAN NORTH AMERICA, INC., a
California Corporation, and DOES 1 [Filed concurrently with [Proposed] Order,
18
through 10, inclusive, and Declaration of Amy Morse and Exhibits
19 Thereto]
20 Hearing Date: May 11, 2021
Defendants.
21 Hearing Time: 3:30 p.m.
Department: 501
22
Complaint Filed: July 25, 2019
23 Trial Date: May 10, 2021
24
25
26
27
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 YOU ARE HEREBY NOTIFIED that on May 11, 2021 at 3:30 p.m. in Department 501 of
3 the Fresno County Superior Court, located at 1130 O Street, Fresno, CA 93721 Plaintiffs JANET
4 CORONA and FELIPE HERNANDEZ will, and hereby do, move this court pursuant to California
5 Code of Civil Procedure section 2025.450, subdivision (a), for an order compelling Lithia Nissan
6 of Clovis to produce its Person Most Qualified, Service Advisor Timothy Bowden, Service
7 Advisor #172577 Latoya Thomas, Service Advisor Fred Erese, and Technician #78762, to be
8 deposed in accordance with Code of Civil Procedure, section 2025.230.
9 Plaintiffs also move this court for an order awarding monetary sanctions against Lithia
10 Nissan of Clovis, and counsel of record for Nissan North America, Inc., Wilson Turner Kosmo
11 LLP, pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), for their willful,
12 intentional, and unjustified failure to comply with the Discovery Act. Plaintiffs move for an order
13 for sanctions in the amount of $2,185, which is comprised of attorney fees incurred in drafting this
14 motion, reviewing and analyzing the opposition, drafting a reply, attending the hearing on this
15 matter, and the filing fee incurred for filing the motion.
16 This motion is based upon the Memorandum of Points and Authorities attached hereto, the
17 Declaration of Amy Morse, the Separate Statement of Issues in Dispute, the papers and records on
18 file, and upon such oral and documentary evidence that may be presented at the hearing on this
19 matter.
20
21 Dated: December 14, 2020 KNIGHT LAW GROUP, LLP
22
23
24
Steve Mikhov (SBN 224676)
25 Amy Morse (SBN 290502)
Attorneys for Plaintiffs,
26 JANET CORONA and
FELIPE HERNANDEZ
27
28
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs JANET CORONA and FELIPE HERNANDEZ seek to compel the deposition of
4 several of Lithia Nissan of Clovis employees who have personal knowledge of the handling and
5 repair of Plaintiffs’ vehicle in this case brought for violations of the Song-Beverly Act. Despite
6 the fact that Plaintiffs personally served Lithia Nissan of Clovis with notices seeking deposition
7 testimony and document production from certain employees, Lithia Nissan of Clovis failed to
8 produce its dealership personnel for deposition and failed to communicate with Plaintiffs’ counsel
9 for purposes of rescheduling deposition. As the law is clear—notice of a deposition makes personal
10 attendance, testimony, and the specified document production mandatory—Plaintiffs seek an order
11 compelling the deposition testimony and document production by Lithia Nissan of Clovis’
12 dealership personnel and an order awarding sanctions against Lithia Nissan of Clovis and
13 Defendant’s counsel of record, Wilson Turner Kosmo LLP.
14 II. STATEMENT OF FACTS
15 This case arises out of Nissan North America, Inc.’s, (“NNA”) failure to abide by its
16 statutory duties under the Song-Beverly Consumer Warranty Act. On October 8, 2016, Plaintiffs
17 purchased a new 2016 Nissan Titan. (Declaration of Amy Morse (“Morse Decl.”), ¶ 2.) Express
18 and implied warranties were provided to Plaintiffs with the sale of the vehicle. (“Morse Decl.”),
19 ¶ 2.) Shortly after purchasing the vehicle, Plaintiffs began to experience issues with the vehicle’s
20 engine, transmission, and suspension. (“Morse Decl.”), ¶ 2.) Even though Plaintiffs had delivered
21 the vehicle to Lithia Nissan of Clovis, a NNA-authorized repair facility, NNA was unable to
22 conform the vehicle to its applicable warranty and has refused to offer restitution or replacement
23 of Plaintiffs’ vehicle as required under the Song-Beverly Act. (Ibid.) As a result, Plaintiffs filed a
24 complaint alleging violations of the Song-Beverly Act on July 25, 2019. (Ibid.)
25 On November 2, 2020, Plaintiffs served Lithia Nissan of Clovis with Notices of Deposition
26 for its Person(s) Most Qualified, Service Advisor Timothy Bowden, Service Advisor #172577
27 Latoya Thomas, Service Advisor Fred Erese, and Technician #78762 (collectively “dealership
28 personnel”). (Morse Decl., ¶ 3; Ex. A-B.) The notices set the depositions for November 18, 2020.
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 (Ibid.)
2 On November 12, 2020, Defendant served objections to Plaintiffs’ deposition notices
3 containing a litany of boilerplate objections, while also stating that “neither deponent nor their
4 counsel would be present,” due to unavailability. (Morse Decl., ¶ 5; Ex. C-F.) On November 2,
5 2020, Plaintiffs’ counsel sent an email as a means of obtaining alternative dates in order to ensure
6 the deposition went forward. (Morse Decl., ¶ 6.) Defendant’s only response was to serve
7 objections to the notices of deposition. (Ibid.)
8 On November 18, 2020, Plaintiffs took a statement of non-appearance. (Morse Decl., ¶ 7;
9 Ex. G.) Trial is set for January 4, 2021 and Plaintiffs are still without the pertinent information
10 sought, due to Lithia Nissan of Clovis’ blatant disregard to Plaintiffs’ requests. (Morse Decl., ¶ 8.)
11 Accordingly, Plaintiffs request that this court compel the deposition of several of Lithia Nissan of
12 Clovis’ employees who have personal knowledge of the handling and repair of Plaintiffs’ vehicle
13 in this case brought for violations of the Song-Beverly Act, and sanctions for its failure to do so.
14 III. ARGUMENT
A. Plaintiffs are Entitled to an Order Compelling Lithia Nissan of Clovis to
15
Produce Its Dealership Personnel for Deposition
16 The Discovery Act allows “[a]ny party [to] obtain discovery . . . by taking in California the
17 oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)
18 The service of a deposition notice makes attendance by any party deponent—including the
19 designated Person Most Knowledgeable—and production of any requested document mandatory.
20 (Code Civ. Proc., § 2025.280, subd. (a).) This notice must be served at least 10 days prior to the
21 date scheduled for the deposition. (Code Civ. Proc., § 2025.270, subd. (a).) If the deponent is not
22 a natural person, the notice must “describe with reasonable particularity the matters on which
23 examination is requested.” (Code Civ. Proc., §§ 2025.230, 2020.310, italics added.) The deponent
24 is then required to “designate and produce at the deposition those of their officers, directors,
25 managing agents, employees, or agents who are most qualified to testify on their behalf as to those
26 matters to the extent of any information known or reasonably available to the deponent.” (Code
27 Civ. Proc., § 2025.230, italics added.) “[T]he deposition proceeding is initiated by notice alone.
28 The statutes confer upon litigants the right to take the deposition in a pending case . . . without
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 prior court order and without a showing of good cause.” (Snyder v. Superior Court (1970) 9
2 Cal.App.3d 579, 585.) The discovery authorizes the taking of depositions “as a matter of right and
3 without prior court order.” (Greyhound Corp. v. Superior Court In and For Merced County (1961)
4 56 Cal.2d 355, 388.)
5 If, after receiving notice, a party fails to appear, to answer any question, or to produce any
6 document or tangible thing specified in the deposition notice, the party seeking discovery may
7 move the court for an order compelling attendance and production. (Code Civ. Proc., § 2025.450,
8 subd. (a).) Where the deponent “fails to attend the deposition and produce documents,” the moving
9 party is not required to “meet and confer.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) Instead, all
10 that is required is a declaration stating that the moving party contacted the deponent “to inquire
11 about the nonappearance.” (Ibid.)
12 Here, Plaintiffs personally served Lithia Nissan of Clovis with notices of deposition that
13 sought the deposition testimony and document production from several dealership personnel. This
14 notice was served more than two (2) weeks before the scheduled deposition date. As to the
15 deposition of Lithia Nissan of Clovis’ PMK, the notice described the matters for examination with
16 reasonable particularity. These matters specifically relate to Plaintiffs’ particular vehicle and their
17 specific claims. For example, these matters seek information related to the repair of Plaintiffs’
18 particular vehicle, Lithia Nissan of Clovis communications with Plaintiffs or NNA related to
19 Plaintiffs’ particular vehicle, and Lithia Nissan of Clovis’ considerations about whether Plaintiffs’
20 particular vehicle should be repurchased under the Song-Beverly Act. There can be no confusion
21 about the information that Plaintiffs’ matters seek because they are all tailored to one vehicle.
22 Similarly, as will be discussed below, matters related to Lithia Nissan of Clovis’ and NNA’s
23 policies and procedures are narrowly tailored to elicit information relevant Plaintiffs’ Song-
24 Beverly Act claims. Because these matters are narrowly tailored to Plaintiffs’ claims, they provide
25 sufficient detail and specificity to allow Lithia Nissan of Clovis to determine the information
26 sought. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222 [finding
27 that the “reasonably particularized” standard in a similar discovery statute implies a requirement
28 that the “categories be reasonably particularized from the standpoint of the party who is subjected
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 to the burden of producing the materials”].)
2 As to the requirement that the moving party contact the deponent “to inquire about the
3 nonappearance,” any such inquiry would be futile as Plaintiffs have attempted to secure dates with
4 Defendant’s counsel, to no avail. Indeed, Defendant objected to Plaintiffs’ deposition notices
5 stating that it was not appearing to the noticed deposition because it was unavailable on the
6 unilaterally noticed deposition dates. Any inquiry would necessarily lead to the same information.
7 Coupled with Defendant’s failure to provide any alternative dates of availability, no further inquiry
8 should be required. Thus, Lithia Nissan of Clovis should be ordered to produce its dealership
9 personnel for deposition and the requested documents.
10
B. This Court Should Grant Plaintiffs’ Motion to Compel Because the Information
11 Sought Is Relevant and Material to Plaintiffs’ Claims
12 There is good cause to compel the deposition of the dealership personnel and production
13 of documents because the evidence sought is relevant to Plaintiffs’ claims under the Song-Beverly
14 Act. Code of Civil Procedure section 2017.010 provides in relevant part that “any party may obtain
15 discovery regarding any matter, not privileged, that is relevant to the subject matter . . . if the matter
16 either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of
17 admissible evidence . . . .” (Code Civ. Proc., § 2017.010.) Courts construe the discovery statutes,
18 like the one above, broadly so as to uphold the right to discovery wherever possible. (Greyhound
19 Corp. v. Superior Court (1961) 56 Cal.2d 355, 377-78.) To that end, courts have interpreted the
20 relevance standard in section 2017.010 to mean that information is relevant if it “might reasonably
21 assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (See Gonzalez
22 v. Superior Court (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Superior Court (1996) 48
23 Cal.App.4th 1599, 1611.) Similarly, courts have construed the phrase “reasonably calculated to
24 lead to the discovery of admissible evidence” to mean that “discovery extends to any information
25 that reasonably might lead to other evidence that would be admissible.” (See Lipton v. Superior
26 Court, supra, 48 Cal.App.4th at p. 1611.) “When disputed facts provide a basis for the exercise of
27 discretion, those facts should be liberally construed in favor of discovery.” (Zellerino v. Brown
28 (1991) 235 Cal.App.3d 1097, 1108-09.)
Here, the listed matters and the requested document production described in the notice are
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 relevant because they relate to the underlying facts of this case and to Plaintiffs’ claims. These
2 matters seek testimony or document production related to the handling of Plaintiffs’ vehicle
3 including its repairs; Lithia Nissan of Clovis’ communications regarding Plaintiffs’ vehicle; any
4 considerations Lithia Nissan of Clovis had regarding the repeated problems, any considerations
5 Lithia Nissan of Clovis had regarding whether Plaintiffs’ vehicle should be repurchased under the
6 Song-Beverly Act; and certain policies and procedures implemented by Lithia Nissan of Clovis or
7 NNA. To succeed on their claims under the Song-Beverly Act, Plaintiffs must prove (among other
8 things) that their vehicle contained a defect, covered by NNA’s warranty, which substantially
9 impaired its use, value, or safety and which NNA or its agents were unable to repair after a
10 reasonable number of repair attempts. (Civ. Code §§ 1790 et seq.; CACI No. 3201.) Additionally,
11 the Song-Beverly Act provides for an award of a civil penalty if NNA’s violation of the Act was
12 willful. (Civ. Code, § 1794, subd. (c).)
13 Lithia Nissan of Clovis’ conduct, determinations, and policies and procedures related to
14 Plaintiffs’ vehicle are relevant because Lithia Nissan of Clovis serves as an agent for NNA. (Civ.
15 Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 889.) For purposes of
16 establishing Plaintiffs’ entitlement to reimbursement based on previous repair efforts, the
17 “legislative history of [section 1793.2] demonstrates beyond any question that [] a differentiation
18 between manufacturer and local representative is unwarranted.” (Ibrahim v. Ford Motor Co.,
19 supra, 214 Cal.App.3d at p. 889) The repair efforts of both Lithia Nissan of Clovis and NNA are
20 “aggregated for the purpose of calculating whether the same nonconformity has been subject to”
21 a reasonable number of repair attempts. (Id.) Lithia Nissan of Clovis’ handling of Plaintiffs’
22 vehicle and its considerations or communications regarding the same are relevant because they
23 show whether Lithia Nissan of Clovis was provided with a reasonable number of repair attempts,
24 the efforts Lithia Nissan of Clovis took to repair the vehicle, the procedures Lithia Nissan of Clovis
25 followed in assessing the problems related to the vehicle, and whether Lithia Nissan of Clovis’
26 attempts to repair the issues were covered under warranty. They also are relevant to determining
27 whether Lithia Nissan of Clovis believes the vehicle should be repurchased based on its inability
28 to repair the vehicle and whether itbelieves the vehicle’s safety, value, or use were affected.
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 Indeed, Lithia Nissan of Clovis’ dealership personnel are in a good position to testify about the
2 repair attempts and any considerations that were made about the vehicle because they were the
3 ones who actually performed the repair attempts and diagnoses.
4 Furthermore, matters for examination that relate to various policies and procedures are
5 relevant to proving that NNA’s violation was willful. As the court recognized in Jensen, one of
6 the factors that juries should consider when determining whether NNA’s conduct amounts to a
7 willful violation is whether “[NNA] knew the vehicle had not been repaired within a reasonable
8 period or after a reasonable number of attempts.” (Jensen v. BMW of North America, Inc. (1995)
9 35 Cal.App.4th 112, 136.) Courts have also recognized that “[a] decision made without the use of
10 reasonably available information germane to that decision is not a reasonable, good faith decision”
11 and warrants a civil penalty. (Lukather v. General Motors, LLC, supra, 181 Cal.App.4th at p.
12 1051.)
13 Here, Plaintiffs sought testimony and document production about Lithia Nissan of Clovis’
14 policies and procedures and the policies, procedures, or instructions that NNA provided to Lithia
15 Nissan of Clovis related to the handling of multiple repairs, notifying NNA that a vehicle has been
16 out of service for a certain number of days, and notifying NNA that a vehicle has been subject to
17 a certain number of repairs for the same or similar concern, defect, or nonconformity. These
18 matters are relevant because they tend to show whether NNA knew that Plaintiffs were
19 experiencing numerous issues with the vehicle, whether NNA knew how many repair attempts had
20 been performed on the vehicle, whether NNA knew the nature of the vehicle’s issues and repair
21 attempts, whether NNA knew how long Plaintiffs had been experiencing these issues, and whether
22 NNA knew that these issues were widespread. Overall, this information can be used to prove that
23 NNA “knew the vehicle had not been repaired within a reasonable period or after a reasonable
24 number of attempts,” (Jensen, p. 136), or that NNA formed its response “without the use of
25 reasonably available information germane to that decision.” (Lukather, at p. 1051).
26 Additionally, courts have long recognized that a manufacturer’s policies—or lack of
27 policies—related to how it deals with consumer complaints and their decision on whether to
28 replace or repurchase are important in determining whether a manufacturer has committed a willful
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1 violation of the Act. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136
2 [explaining that among the relevant factors a jury should consider in determining whether a
3 manufacturer’s violation is willful is “whether the manufacturer had a written policy on the
4 requirement to repair or replace.”]; Oregel v. American Isuzu Motors Inc. (1995) 90 Cal.App.4th
5 1094 [finding liability for a civil penalty where manufacturer’s corporate policy discounted a repair
6 attempt under the Song-Beverly Act if the problem could not be verified]; Kwan v. Mercedes-Benz
7 of North America (1994) 23 Cal.App.4th 174, 186 [“Whether the lack of a written policy
8 demonstrates [manufacturer’s] lack of good faith is a question to be answered by a properly
9 instructed jury. . . .”].) Accordingly, testimony about the policies and procedures that NNA has put
10 in place instructing Lithia Nissan of Clovis how to handle multiple repair attempts, how or when
11 to notify NNA about vehicles that have been out of service a certain number of days, and how or
12 when to notify NNA that a vehicle has been subjected to a certain number of repairs for the same
13 or similar concern, defect, or nonconformity are relevant to showing whether NNA has
14 implemented policies that satisfy its duty under the Act or whether it has no such policies in effect.
15 Because Plaintiffs’ categories for examination are relevant, material and reasonably
16 calculated to lead to the discovery of admissible evidence, Plaintiffs request that this Court compel
17 Lithia Nissan of Clovis to produce its dealership personnel including its PMQ to testify as to these
18 matters and the requested documents.
19
C. Defendant’s Objections Do Not Obviate Its Obligation to Produce its Dealership
20 Personnel
21 In response to Plaintiffs’ first properly served notice, Defendant served long lists of
22 objections. Although Defendant is likely to argue that its objections provide justification for its
23 wholesale refusal to produce a deponent who can testify about the matters listed in Plaintiffs’
24 notices, objecting to a deposition notice alone does not stay the deposition pending determination
25 of the validity of the objections. (Code Civ. Proc., § 2025.410.) To stay the taking of the deposition
26 until a determination is made regarding the validity of the objections, the objecting party must take
27 the affirmative step of filing a motion for an order staying the deposition and quashing the
28 deposition notice. (Ibid.) Defendant made the decision not to file any motion and, therefore, cannot
refuse to produce its PMQ and dealership personnel.
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
1
D. This Court Should Award Sanctions Against Lithia Nissan of Clovis for Its
2 Failure to Appear for Deposition
3 The court shall impose a monetary sanction against any party, person, or attorney who
4 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that
5 the one subject to the sanction acted with substantial justification or that other circumstances make
6 the imposition of sanctions unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).)
7 Here, Defendant failed to produce its dealership personnel to testify at its properly noticed
8 deposition. Although Defendant has objected to Plaintiffs’ notice, Defendant has failed to provide
9 any dates of availability despite Plaintiffs’ efforts to obtain such dates. Defendant’s conduct is
10 without substantial justification and there are no circumstances making the imposition of sanctions
11 unjust. Therefore, Plaintiffs request that monetary sanctions be awarded against Defendant Lithia
12 Nissan of Clovis, and Nissan’s counsel of record, Wilson Turner Ksomo LLP, in the amount of
13 $2,185. (See Morse Decl., ¶¶ 8-10.)
14 IV. CONCLUSION
15 For the foregoing reasons, Plaintiffs request that this Court grant an order (i) compelling
16 Lithia Nissan of Clovis to produce its dealership personnel for deposition and the requested
17 document production, and (ii) awarding monetary sanctions in the amount of $2,185.00.
18
19
20 Dated: December 14, 2020 KNIGHT LAW GROUP, LLP
21
22
23 Steve Mikhov (SBN 224676)
Amy Morse (SBN 290502)
24
Attorneys for Plaintiffs,
25 JANET CORONA and
FELIPE HERNANDEZ
26
27
28
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PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS
PROOF OF SERVICE
1
(Code of Civil Procedure §1013a)
2
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 years and not a party to the within action. My business address is 10250 Constellation Blvd.,
Suite 2500, Los Angeles, CA 90067.
4
5 I served the foregoing document described as:
6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL
DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS;
7 MEMORANDUM OF POINTS AND AUTHORITIES; AND REQUEST FOR
SANCTIONS
8
Said document was served on the interested parties in this action, by placing true copies
9 thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows:
10
Robert A. Shields, Esq.
11 WILSON TURNER KOSMO LLP
402 West Broadway, Suite 1600
12
San Diego, CA 92101
13 E-Mail: warrantyeservice@wilsonturnerkosmo.com
Counsel for Defendants,
14 NISSAN NORTH AMERICA, INC., et al.
(via E-Mail only)
15
16 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused
17 the documents to be sent to the persons at the e-mail addresses listed above. I did not
receive, within a reasonable time after the transmission, any electronic message or other
18
indication that the transmission was unsuccessful.
19
XX I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21
Executed on December 14, 2020 at Los Angeles, California.
22
23 _____________________________
24 Hector Almeyda
25
26
27
28
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PROOF OF SERVICE
Preview
1 KNIGHT LAW GROUP, LLP E-FILED Steve Mikhov (SBN 224676) 12/14/2020 7:33 PM 2 stevem@knightlaw.com Superior Court of California 3 Amy Morse (SBN 290502) County of Fresno amym@knightlaw.com By: C. York, Deputy 4 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 5 Telephone: (310) 552-2250 6 Fax: (310) 552-7973 7 Attorneys for Plaintiffs, JANET CORONA and 8 FELIPE HERNANDEZ 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 JANET CORONA and Case No.: 19CECG02708 FELIPE HERNANDEZ, Unlimited Jurisdiction 13 PLAINTIFFS’ NOTICE OF MOTION 14 AND MOTION TO COMPEL Plaintiffs, DEPOSITION ATTENDANCE AND 15 PRODUCTION OF DOCUMENTS; vs. MEMORANDUM OF POINTS AND 16 AUTHORITIES; AND REQUEST FOR SANCTIONS 17 NISSAN NORTH AMERICA, INC., a California Corporation, and DOES 1 [Filed concurrently with [Proposed] Order, 18 through 10, inclusive, and Declaration of Amy Morse and Exhibits 19 Thereto] 20 Hearing Date: May 11, 2021 Defendants. 21 Hearing Time: 3:30 p.m. Department: 501 22 Complaint Filed: July 25, 2019 23 Trial Date: May 10, 2021 24 25 26 27 28 PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 YOU ARE HEREBY NOTIFIED that on May 11, 2021 at 3:30 p.m. in Department 501 of 3 the Fresno County Superior Court, located at 1130 O Street, Fresno, CA 93721 Plaintiffs JANET 4 CORONA and FELIPE HERNANDEZ will, and hereby do, move this court pursuant to California 5 Code of Civil Procedure section 2025.450, subdivision (a), for an order compelling Lithia Nissan 6 of Clovis to produce its Person Most Qualified, Service Advisor Timothy Bowden, Service 7 Advisor #172577 Latoya Thomas, Service Advisor Fred Erese, and Technician #78762, to be 8 deposed in accordance with Code of Civil Procedure, section 2025.230. 9 Plaintiffs also move this court for an order awarding monetary sanctions against Lithia 10 Nissan of Clovis, and counsel of record for Nissan North America, Inc., Wilson Turner Kosmo 11 LLP, pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), for their willful, 12 intentional, and unjustified failure to comply with the Discovery Act. Plaintiffs move for an order 13 for sanctions in the amount of $2,185, which is comprised of attorney fees incurred in drafting this 14 motion, reviewing and analyzing the opposition, drafting a reply, attending the hearing on this 15 matter, and the filing fee incurred for filing the motion. 16 This motion is based upon the Memorandum of Points and Authorities attached hereto, the 17 Declaration of Amy Morse, the Separate Statement of Issues in Dispute, the papers and records on 18 file, and upon such oral and documentary evidence that may be presented at the hearing on this 19 matter. 20 21 Dated: December 14, 2020 KNIGHT LAW GROUP, LLP 22 23 24 Steve Mikhov (SBN 224676) 25 Amy Morse (SBN 290502) Attorneys for Plaintiffs, 26 JANET CORONA and FELIPE HERNANDEZ 27 28 -i- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs JANET CORONA and FELIPE HERNANDEZ seek to compel the deposition of 4 several of Lithia Nissan of Clovis employees who have personal knowledge of the handling and 5 repair of Plaintiffs’ vehicle in this case brought for violations of the Song-Beverly Act. Despite 6 the fact that Plaintiffs personally served Lithia Nissan of Clovis with notices seeking deposition 7 testimony and document production from certain employees, Lithia Nissan of Clovis failed to 8 produce its dealership personnel for deposition and failed to communicate with Plaintiffs’ counsel 9 for purposes of rescheduling deposition. As the law is clear—notice of a deposition makes personal 10 attendance, testimony, and the specified document production mandatory—Plaintiffs seek an order 11 compelling the deposition testimony and document production by Lithia Nissan of Clovis’ 12 dealership personnel and an order awarding sanctions against Lithia Nissan of Clovis and 13 Defendant’s counsel of record, Wilson Turner Kosmo LLP. 14 II. STATEMENT OF FACTS 15 This case arises out of Nissan North America, Inc.’s, (“NNA”) failure to abide by its 16 statutory duties under the Song-Beverly Consumer Warranty Act. On October 8, 2016, Plaintiffs 17 purchased a new 2016 Nissan Titan. (Declaration of Amy Morse (“Morse Decl.”), ¶ 2.) Express 18 and implied warranties were provided to Plaintiffs with the sale of the vehicle. (“Morse Decl.”), 19 ¶ 2.) Shortly after purchasing the vehicle, Plaintiffs began to experience issues with the vehicle’s 20 engine, transmission, and suspension. (“Morse Decl.”), ¶ 2.) Even though Plaintiffs had delivered 21 the vehicle to Lithia Nissan of Clovis, a NNA-authorized repair facility, NNA was unable to 22 conform the vehicle to its applicable warranty and has refused to offer restitution or replacement 23 of Plaintiffs’ vehicle as required under the Song-Beverly Act. (Ibid.) As a result, Plaintiffs filed a 24 complaint alleging violations of the Song-Beverly Act on July 25, 2019. (Ibid.) 25 On November 2, 2020, Plaintiffs served Lithia Nissan of Clovis with Notices of Deposition 26 for its Person(s) Most Qualified, Service Advisor Timothy Bowden, Service Advisor #172577 27 Latoya Thomas, Service Advisor Fred Erese, and Technician #78762 (collectively “dealership 28 personnel”). (Morse Decl., ¶ 3; Ex. A-B.) The notices set the depositions for November 18, 2020. -1- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 (Ibid.) 2 On November 12, 2020, Defendant served objections to Plaintiffs’ deposition notices 3 containing a litany of boilerplate objections, while also stating that “neither deponent nor their 4 counsel would be present,” due to unavailability. (Morse Decl., ¶ 5; Ex. C-F.) On November 2, 5 2020, Plaintiffs’ counsel sent an email as a means of obtaining alternative dates in order to ensure 6 the deposition went forward. (Morse Decl., ¶ 6.) Defendant’s only response was to serve 7 objections to the notices of deposition. (Ibid.) 8 On November 18, 2020, Plaintiffs took a statement of non-appearance. (Morse Decl., ¶ 7; 9 Ex. G.) Trial is set for January 4, 2021 and Plaintiffs are still without the pertinent information 10 sought, due to Lithia Nissan of Clovis’ blatant disregard to Plaintiffs’ requests. (Morse Decl., ¶ 8.) 11 Accordingly, Plaintiffs request that this court compel the deposition of several of Lithia Nissan of 12 Clovis’ employees who have personal knowledge of the handling and repair of Plaintiffs’ vehicle 13 in this case brought for violations of the Song-Beverly Act, and sanctions for its failure to do so. 14 III. ARGUMENT A. Plaintiffs are Entitled to an Order Compelling Lithia Nissan of Clovis to 15 Produce Its Dealership Personnel for Deposition 16 The Discovery Act allows “[a]ny party [to] obtain discovery . . . by taking in California the 17 oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) 18 The service of a deposition notice makes attendance by any party deponent—including the 19 designated Person Most Knowledgeable—and production of any requested document mandatory. 20 (Code Civ. Proc., § 2025.280, subd. (a).) This notice must be served at least 10 days prior to the 21 date scheduled for the deposition. (Code Civ. Proc., § 2025.270, subd. (a).) If the deponent is not 22 a natural person, the notice must “describe with reasonable particularity the matters on which 23 examination is requested.” (Code Civ. Proc., §§ 2025.230, 2020.310, italics added.) The deponent 24 is then required to “designate and produce at the deposition those of their officers, directors, 25 managing agents, employees, or agents who are most qualified to testify on their behalf as to those 26 matters to the extent of any information known or reasonably available to the deponent.” (Code 27 Civ. Proc., § 2025.230, italics added.) “[T]he deposition proceeding is initiated by notice alone. 28 The statutes confer upon litigants the right to take the deposition in a pending case . . . without -2- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 prior court order and without a showing of good cause.” (Snyder v. Superior Court (1970) 9 2 Cal.App.3d 579, 585.) The discovery authorizes the taking of depositions “as a matter of right and 3 without prior court order.” (Greyhound Corp. v. Superior Court In and For Merced County (1961) 4 56 Cal.2d 355, 388.) 5 If, after receiving notice, a party fails to appear, to answer any question, or to produce any 6 document or tangible thing specified in the deposition notice, the party seeking discovery may 7 move the court for an order compelling attendance and production. (Code Civ. Proc., § 2025.450, 8 subd. (a).) Where the deponent “fails to attend the deposition and produce documents,” the moving 9 party is not required to “meet and confer.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) Instead, all 10 that is required is a declaration stating that the moving party contacted the deponent “to inquire 11 about the nonappearance.” (Ibid.) 12 Here, Plaintiffs personally served Lithia Nissan of Clovis with notices of deposition that 13 sought the deposition testimony and document production from several dealership personnel. This 14 notice was served more than two (2) weeks before the scheduled deposition date. As to the 15 deposition of Lithia Nissan of Clovis’ PMK, the notice described the matters for examination with 16 reasonable particularity. These matters specifically relate to Plaintiffs’ particular vehicle and their 17 specific claims. For example, these matters seek information related to the repair of Plaintiffs’ 18 particular vehicle, Lithia Nissan of Clovis communications with Plaintiffs or NNA related to 19 Plaintiffs’ particular vehicle, and Lithia Nissan of Clovis’ considerations about whether Plaintiffs’ 20 particular vehicle should be repurchased under the Song-Beverly Act. There can be no confusion 21 about the information that Plaintiffs’ matters seek because they are all tailored to one vehicle. 22 Similarly, as will be discussed below, matters related to Lithia Nissan of Clovis’ and NNA’s 23 policies and procedures are narrowly tailored to elicit information relevant Plaintiffs’ Song- 24 Beverly Act claims. Because these matters are narrowly tailored to Plaintiffs’ claims, they provide 25 sufficient detail and specificity to allow Lithia Nissan of Clovis to determine the information 26 sought. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222 [finding 27 that the “reasonably particularized” standard in a similar discovery statute implies a requirement 28 that the “categories be reasonably particularized from the standpoint of the party who is subjected -3- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 to the burden of producing the materials”].) 2 As to the requirement that the moving party contact the deponent “to inquire about the 3 nonappearance,” any such inquiry would be futile as Plaintiffs have attempted to secure dates with 4 Defendant’s counsel, to no avail. Indeed, Defendant objected to Plaintiffs’ deposition notices 5 stating that it was not appearing to the noticed deposition because it was unavailable on the 6 unilaterally noticed deposition dates. Any inquiry would necessarily lead to the same information. 7 Coupled with Defendant’s failure to provide any alternative dates of availability, no further inquiry 8 should be required. Thus, Lithia Nissan of Clovis should be ordered to produce its dealership 9 personnel for deposition and the requested documents. 10 B. This Court Should Grant Plaintiffs’ Motion to Compel Because the Information 11 Sought Is Relevant and Material to Plaintiffs’ Claims 12 There is good cause to compel the deposition of the dealership personnel and production 13 of documents because the evidence sought is relevant to Plaintiffs’ claims under the Song-Beverly 14 Act. Code of Civil Procedure section 2017.010 provides in relevant part that “any party may obtain 15 discovery regarding any matter, not privileged, that is relevant to the subject matter . . . if the matter 16 either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of 17 admissible evidence . . . .” (Code Civ. Proc., § 2017.010.) Courts construe the discovery statutes, 18 like the one above, broadly so as to uphold the right to discovery wherever possible. (Greyhound 19 Corp. v. Superior Court (1961) 56 Cal.2d 355, 377-78.) To that end, courts have interpreted the 20 relevance standard in section 2017.010 to mean that information is relevant if it “might reasonably 21 assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (See Gonzalez 22 v. Superior Court (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Superior Court (1996) 48 23 Cal.App.4th 1599, 1611.) Similarly, courts have construed the phrase “reasonably calculated to 24 lead to the discovery of admissible evidence” to mean that “discovery extends to any information 25 that reasonably might lead to other evidence that would be admissible.” (See Lipton v. Superior 26 Court, supra, 48 Cal.App.4th at p. 1611.) “When disputed facts provide a basis for the exercise of 27 discretion, those facts should be liberally construed in favor of discovery.” (Zellerino v. Brown 28 (1991) 235 Cal.App.3d 1097, 1108-09.) Here, the listed matters and the requested document production described in the notice are -4- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 relevant because they relate to the underlying facts of this case and to Plaintiffs’ claims. These 2 matters seek testimony or document production related to the handling of Plaintiffs’ vehicle 3 including its repairs; Lithia Nissan of Clovis’ communications regarding Plaintiffs’ vehicle; any 4 considerations Lithia Nissan of Clovis had regarding the repeated problems, any considerations 5 Lithia Nissan of Clovis had regarding whether Plaintiffs’ vehicle should be repurchased under the 6 Song-Beverly Act; and certain policies and procedures implemented by Lithia Nissan of Clovis or 7 NNA. To succeed on their claims under the Song-Beverly Act, Plaintiffs must prove (among other 8 things) that their vehicle contained a defect, covered by NNA’s warranty, which substantially 9 impaired its use, value, or safety and which NNA or its agents were unable to repair after a 10 reasonable number of repair attempts. (Civ. Code §§ 1790 et seq.; CACI No. 3201.) Additionally, 11 the Song-Beverly Act provides for an award of a civil penalty if NNA’s violation of the Act was 12 willful. (Civ. Code, § 1794, subd. (c).) 13 Lithia Nissan of Clovis’ conduct, determinations, and policies and procedures related to 14 Plaintiffs’ vehicle are relevant because Lithia Nissan of Clovis serves as an agent for NNA. (Civ. 15 Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 889.) For purposes of 16 establishing Plaintiffs’ entitlement to reimbursement based on previous repair efforts, the 17 “legislative history of [section 1793.2] demonstrates beyond any question that [] a differentiation 18 between manufacturer and local representative is unwarranted.” (Ibrahim v. Ford Motor Co., 19 supra, 214 Cal.App.3d at p. 889) The repair efforts of both Lithia Nissan of Clovis and NNA are 20 “aggregated for the purpose of calculating whether the same nonconformity has been subject to” 21 a reasonable number of repair attempts. (Id.) Lithia Nissan of Clovis’ handling of Plaintiffs’ 22 vehicle and its considerations or communications regarding the same are relevant because they 23 show whether Lithia Nissan of Clovis was provided with a reasonable number of repair attempts, 24 the efforts Lithia Nissan of Clovis took to repair the vehicle, the procedures Lithia Nissan of Clovis 25 followed in assessing the problems related to the vehicle, and whether Lithia Nissan of Clovis’ 26 attempts to repair the issues were covered under warranty. They also are relevant to determining 27 whether Lithia Nissan of Clovis believes the vehicle should be repurchased based on its inability 28 to repair the vehicle and whether itbelieves the vehicle’s safety, value, or use were affected. -5- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 Indeed, Lithia Nissan of Clovis’ dealership personnel are in a good position to testify about the 2 repair attempts and any considerations that were made about the vehicle because they were the 3 ones who actually performed the repair attempts and diagnoses. 4 Furthermore, matters for examination that relate to various policies and procedures are 5 relevant to proving that NNA’s violation was willful. As the court recognized in Jensen, one of 6 the factors that juries should consider when determining whether NNA’s conduct amounts to a 7 willful violation is whether “[NNA] knew the vehicle had not been repaired within a reasonable 8 period or after a reasonable number of attempts.” (Jensen v. BMW of North America, Inc. (1995) 9 35 Cal.App.4th 112, 136.) Courts have also recognized that “[a] decision made without the use of 10 reasonably available information germane to that decision is not a reasonable, good faith decision” 11 and warrants a civil penalty. (Lukather v. General Motors, LLC, supra, 181 Cal.App.4th at p. 12 1051.) 13 Here, Plaintiffs sought testimony and document production about Lithia Nissan of Clovis’ 14 policies and procedures and the policies, procedures, or instructions that NNA provided to Lithia 15 Nissan of Clovis related to the handling of multiple repairs, notifying NNA that a vehicle has been 16 out of service for a certain number of days, and notifying NNA that a vehicle has been subject to 17 a certain number of repairs for the same or similar concern, defect, or nonconformity. These 18 matters are relevant because they tend to show whether NNA knew that Plaintiffs were 19 experiencing numerous issues with the vehicle, whether NNA knew how many repair attempts had 20 been performed on the vehicle, whether NNA knew the nature of the vehicle’s issues and repair 21 attempts, whether NNA knew how long Plaintiffs had been experiencing these issues, and whether 22 NNA knew that these issues were widespread. Overall, this information can be used to prove that 23 NNA “knew the vehicle had not been repaired within a reasonable period or after a reasonable 24 number of attempts,” (Jensen, p. 136), or that NNA formed its response “without the use of 25 reasonably available information germane to that decision.” (Lukather, at p. 1051). 26 Additionally, courts have long recognized that a manufacturer’s policies—or lack of 27 policies—related to how it deals with consumer complaints and their decision on whether to 28 replace or repurchase are important in determining whether a manufacturer has committed a willful -6- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 violation of the Act. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136 2 [explaining that among the relevant factors a jury should consider in determining whether a 3 manufacturer’s violation is willful is “whether the manufacturer had a written policy on the 4 requirement to repair or replace.”]; Oregel v. American Isuzu Motors Inc. (1995) 90 Cal.App.4th 5 1094 [finding liability for a civil penalty where manufacturer’s corporate policy discounted a repair 6 attempt under the Song-Beverly Act if the problem could not be verified]; Kwan v. Mercedes-Benz 7 of North America (1994) 23 Cal.App.4th 174, 186 [“Whether the lack of a written policy 8 demonstrates [manufacturer’s] lack of good faith is a question to be answered by a properly 9 instructed jury. . . .”].) Accordingly, testimony about the policies and procedures that NNA has put 10 in place instructing Lithia Nissan of Clovis how to handle multiple repair attempts, how or when 11 to notify NNA about vehicles that have been out of service a certain number of days, and how or 12 when to notify NNA that a vehicle has been subjected to a certain number of repairs for the same 13 or similar concern, defect, or nonconformity are relevant to showing whether NNA has 14 implemented policies that satisfy its duty under the Act or whether it has no such policies in effect. 15 Because Plaintiffs’ categories for examination are relevant, material and reasonably 16 calculated to lead to the discovery of admissible evidence, Plaintiffs request that this Court compel 17 Lithia Nissan of Clovis to produce its dealership personnel including its PMQ to testify as to these 18 matters and the requested documents. 19 C. Defendant’s Objections Do Not Obviate Its Obligation to Produce its Dealership 20 Personnel 21 In response to Plaintiffs’ first properly served notice, Defendant served long lists of 22 objections. Although Defendant is likely to argue that its objections provide justification for its 23 wholesale refusal to produce a deponent who can testify about the matters listed in Plaintiffs’ 24 notices, objecting to a deposition notice alone does not stay the deposition pending determination 25 of the validity of the objections. (Code Civ. Proc., § 2025.410.) To stay the taking of the deposition 26 until a determination is made regarding the validity of the objections, the objecting party must take 27 the affirmative step of filing a motion for an order staying the deposition and quashing the 28 deposition notice. (Ibid.) Defendant made the decision not to file any motion and, therefore, cannot refuse to produce its PMQ and dealership personnel. -7- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS 1 D. This Court Should Award Sanctions Against Lithia Nissan of Clovis for Its 2 Failure to Appear for Deposition 3 The court shall impose a monetary sanction against any party, person, or attorney who 4 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that 5 the one subject to the sanction acted with substantial justification or that other circumstances make 6 the imposition of sanctions unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).) 7 Here, Defendant failed to produce its dealership personnel to testify at its properly noticed 8 deposition. Although Defendant has objected to Plaintiffs’ notice, Defendant has failed to provide 9 any dates of availability despite Plaintiffs’ efforts to obtain such dates. Defendant’s conduct is 10 without substantial justification and there are no circumstances making the imposition of sanctions 11 unjust. Therefore, Plaintiffs request that monetary sanctions be awarded against Defendant Lithia 12 Nissan of Clovis, and Nissan’s counsel of record, Wilson Turner Ksomo LLP, in the amount of 13 $2,185. (See Morse Decl., ¶¶ 8-10.) 14 IV. CONCLUSION 15 For the foregoing reasons, Plaintiffs request that this Court grant an order (i) compelling 16 Lithia Nissan of Clovis to produce its dealership personnel for deposition and the requested 17 document production, and (ii) awarding monetary sanctions in the amount of $2,185.00. 18 19 20 Dated: December 14, 2020 KNIGHT LAW GROUP, LLP 21 22 23 Steve Mikhov (SBN 224676) Amy Morse (SBN 290502) 24 Attorneys for Plaintiffs, 25 JANET CORONA and FELIPE HERNANDEZ 26 27 28 -8- PLAINTIFFS’ MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS PROOF OF SERVICE 1 (Code of Civil Procedure §1013a) 2 I am employed in the County of Los Angeles, State of California. I am over the age of 18 3 years and not a party to the within action. My business address is 10250 Constellation Blvd., Suite 2500, Los Angeles, CA 90067. 4 5 I served the foregoing document described as: 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS; 7 MEMORANDUM OF POINTS AND AUTHORITIES; AND REQUEST FOR SANCTIONS 8 Said document was served on the interested parties in this action, by placing true copies 9 thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: 10 Robert A. Shields, Esq. 11 WILSON TURNER KOSMO LLP 402 West Broadway, Suite 1600 12 San Diego, CA 92101 13 E-Mail: warrantyeservice@wilsonturnerkosmo.com Counsel for Defendants, 14 NISSAN NORTH AMERICA, INC., et al. (via E-Mail only) 15 16 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused 17 the documents to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other 18 indication that the transmission was unsuccessful. 19 XX I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed on December 14, 2020 at Los Angeles, California. 22 23 _____________________________ 24 Hector Almeyda 25 26 27 28 -1- PROOF OF SERVICE