Defendant Food N Fuel’s Motion to Compel Deposition of Plaintiff
However, an action for deceit does not require contractual privity. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1549.) “[A] defendant cannot escape liability if he or she makes a representation to one person while intending or having reason to expect that it will be repeated to and acted upon by the plaintiff.” (Id. at p. 1548.) A duty to disclose may arise from a seller to a subsequent purchaser when it has reason to expect the item will be resold. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859.)
The facts here are analogous to the examples outlined in Shapiro because Plaintiff is only one step removed from the dealer’s acquisition of the car from Defendant FCA, with FCA reasonably expecting that a car sold to a dealership would then be sold to a consumer. Per the Complaint’s allegations, Defendant FCA had exclusive knowledge of, or had a superior position of knowing, the issues existing in the engine [¶¶25-26, 59-61], and it could reasonably know an authorized dealership would sell the vehicle to a consumer, and the dealership would not be able to pass on material information about the vehicle being purchased. Thus, an indirect transactional relationship appears to exist. Additionally, the Complaint alleges a transactional relationship by Defendant FCA warranting the vehicle.
Economic Loss Rule – The Economic Loss Rule provides that a tort recovery for noninsurance contract breaches is precluded unless the alleged violation arises from an independent duty founded on principles of tort law. (Aas v. Superior Court (2000) 24 Cal.4th 627, 636, 643; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) However, the economic loss rule also does not lie when the contract was fraudulently induced. (Rattagan, supra, 17 Cal.5th at p. 41.) Here, the 5th cause of action pleads fraud in the inducement via fraudulent concealment. It is properly sitting outside the Economic Loss Rule because it concerns conduct before the contract was formed.
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17. Thompson v. Food N Fuel, et al, Case No. CIVSB2520712 Defendant Food N Fuel’s Motion to Compel Deposition of Plaintiff 8/6/26, 9:00 a.m., Dept. S-17
Tentative Rulings The Court would GRANT the motion to compel Plaintiff’s deposition for August 17, 202, at 1:00 p.m. The Court would also GRANT sanctions in the amount of $440, payable within thirty days.
Case Summary This is a slip-and-fall personal injury case. Plaintiff alleges that on March 11, 2025, she tripped and fell on a curb in the City of San Bernardino. She alleges that Food N Fuel owned or controlled the premises and was aware of the condition of the curb. As such she filed suit on July 18, 2025, against Food N Fuel, Del Taco, City of San Bernardino, and San Bernardino County. All the parties were dismissed except Food N Fuel. The Complaint alleges negligence and premises liability against Food N Fuel.
Relevant here, on August 25, 2025, Food N Fuel first served a notice of the deposition of Plaintiff, originally setting the deposition for January 29, 2026. On January 23, 2026, Plaintiff sent an email cancelling the deposition. (Howell Decl., ¶¶2-3, Exh. A.) Defendant Food N Fuel responded by requesting new dates by January 29, 2026, but no dates were provided. (Howell Decl., ¶¶6-8, Exh. C.) As such, Food N Fuel sent an amended notice this time setting Plaintiff’s deposition for June 5, 2026. Plaintiff again cancelled the deposition a couple days prior citing unavailability. On June 5, 2026, Food N Fuel again reached out to Plaintiff and asserted that it needed available dates by June 8, 2026, or it would proceed with a motion to compel. No deposition dates were provided, and this motion was filed on July 2, 2026.
Analysis
Here, Plaintiff argues that the motion is now moot because the parties have agreed on a deposition date of August 17, 2026. Based on this representation, the Court would grant the motion and require the Plaintiff’s deposition on that date.
Plaintiff also opposes sanctions, arguing that she has complied with Food N Fuel’s request for the deposition. However, Plaintiff did not provide a date to reschedule her deposition until after Defendant filed its motion to compel. Before that, Plaintiff was not working to set her deposition and the facts support the conclusion that motion work was necessary. Further, while Plaintiff’s initial deposition was unilaterally set, it was set five months out, and Plaintiff waited until six days before the deposition to cancel it. Similarly, when the deposition was set again, it was again cancelled days before without the provision of new dates. Finally, when defense counsel requested new dates, none were provided. Thus, from the record, it appears that Plaintiff’s counsel’s unresponsiveness necessitated the motion.
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