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PLAINTIFF’S MOTION FOR EVIDENTIARY SANCTIONS
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 20, 2026 TIME: 8:30 A.M.
(Michel Declaration ¶¶ 5-6.) However, based on the proposed amended cross-complaint, defendant was aware of plaintiffs’ debt collection efforts four years ago (as early as April 7, 2022), when Bill Knowlton attempted to collect $64,828.00 from defendant related to her remodel project. Mr. Moreno is being added as a cross-defendant for his role as an alleged unlicensed consumer debt collector based on his Notice of Pendency of Action (Lis Pendens) served on defendant over six months ago. (Proposed Second Amended Cross-Complaint, Exhibit 3.)
Instead of recently discovered evidence, this appears to be recently evaluated evidence. In light of the August 3, 2026 trial date, the two prior vacated trial dates, the age of this case, and the prejudice to plaintiffs in late discovery and added trial preparation costs related to a new cause of action and party, the court finds defendant’s delay unreasonable and denies the motion.
No. 25CV02857
SOTO v. SR AUTOMOTIVE HOLDINGS, INC., et al.
PLAINTIFF’S MOTION FOR EVIDENTIARY SANCTIONS
The motion is denied.
Plaintiff purchased a 2021 GMC Sierra from Watsonville Cadillac GMC, manufactured and distributed by defendant General Motors LLC (“GM”). Plaintiff alleges defects and nonconformities associated with the vehicle which manifested immediately upon purchase including engine and electrical defects. (FAC ¶ 24.) Plaintiff asserts seven causes of action: violations of the Consumers Legal Remedies Act (Civil Code § 1750 et seq.), fraud and deceit, negligent misrepresentation, violations of Song-Beverly Consumer Warranty Act, unfair competition, and violation of Vehicle Code section 11711.
Plaintiff seeks an order imposing Code of Civil Procedure section 871.261 subdivision (j)(4) evidentiary sanctions. Plaintiff asserts that a mandatory mediation of the case occurred on April 1, 2026, and that defendants failed to provide a representative in attendance with settlement authority as required by section 871.26, subdivision (d). The motion is accompanied by a declaration from plaintiff’s counsel who states that defense counsel “needed to contact someone to get authority to respond to the offer – because there was nobody with authority present at the mediation.” (Decl. of Klitzke at ¶ 5.)
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1 Unless otherwise specified, numerical code references are to the Code of Civil Procedure.
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 20, 2026 TIME: 8:30 A.M.
GM argues it fully complied with the statute because its representative with authority was available via telephone and after the unsuccessful mediation concluded it served a section 998 offer. GM asserts that plaintiff’s counsel was told at the mediation that its representative was available by telephone. GM maintains that after hearing this, plaintiff’s counsel “concluded the mediation, just minutes after being informed that Mr. Dufrane was, at that time, not available to appear via Zoom. Plaintiff’s counsel refused to proceed with Mr. Dufrane available telephonically and did not allow additional time for Mr. Dufrane to login in via Zoom.” (Decl. of Kay at ¶ 4.)
In reply, defendant asserts the opposition is a “fraud” because it is based on Mr. Kay’s declaration, yet he was not present at the mediation but instead sent attorney Romel Keshishian “who has no connection to the litigation ... .” (Reply at p. 1.) Plaintiff emphasizes that the mediation ended early because GM could not make or respond to the settlement offers. (Supp. Decl. of Klitzke at ¶ 2.) Further, plaintiff states that GM’s counsel failed to notify the other defendants, Watsonville Cadillac and Travelers, that there was a mediation, so they did not appear.
In response, Mr. Keshishian filed a supplemental declaration stating that he is an attorney at the firm that is counsel of record for GM, that he appeared at the mediation on April 1, 2026, via Zoom, and GM’s representative was available telephonically. Mr. Keshishian asserts that at the mediation “Plaintiff’s Counsel was adamant that a GM representative must be virtually present at the scheduled Zoom conference. Plaintiff made an opening demand and GM made a counteroffer ... .” (Decl. of Keshishian at ¶ 4.)
The mediator told Mr. Keshishian that plaintiff’s attorney took issue with GM’s inability to make a virtual appearance, and thus the mediation concluded after Plaintiff reiterated his opening demand.” (Ibid.) According to Mr. Keshishian, he conveyed plaintiff’s demand to GM telephonically and then told the mediator that GM would not authorize an “increase beyond a statutory repurchase, plus incidental damages Plaintiff may have incurred.” (Decl. of Keshishian at ¶ 5.)
Section 871.26, subdivision (d) provides that “[w]ithin 90 days after filing of the answer or other responsive pleading, all parties shall schedule a mediation to occur within 150 days after filing of the answer or other responsive pleading with a court-appointed or private mediator. (1) Costs shall be distributed equally, but costs may be recoverable by the plaintiff as part of a settlement or judgment. (2) The plaintiff and a person with settlement authority for the manufacturer shall attend the mediation in person or by remote means.” (Emphasis added.)
Subdivision (j) provides for a variety of sanctions against the parties for failure to comply. In particular section 871.26, subdivision (j)(4) states that “[f]or a manufacturer’s or defendant’s repeated noncompliance with subdivision (b), (c), or (d), a court shall order that evidentiary sanctions attach precluding the manufacturer or defendant from introducing evidence at trial regarding whether the motor vehicle had a nonconformity that substantially
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 20, 2026 TIME: 8:30 A.M.
impaired the use, value, or safety of the motor vehicle, or whether the motor vehicle was repaired to match the written warranty after a reasonable number of opportunities to do so.” (Emphasis added.)
Plaintiff argues that at the mediation “defense attorney needed to contact someone to get authority to respond to the offer – because there was nobody with authority present.” (Decl. of Klitzke at ¶ 5.) Section 871.26, subdivision (d) does not require personal attendance at the mediation; the statute specifically permits “remote means.” Defendant contends its representative was available via telephone, which is a remote means. (Decl. of Kay at ¶ 4; Decl. of Keshishian at ¶ 3.) Therefore, there is no basis for imposing the requested evidentiary sanctions.
Second, evidentiary sanctions are only called for in cases where there are repeated noncompliance issues. (See, section 871.26, subd. (j)(4).) There is no evidence of repeated noncompliance in this case; therefore, the motion is denied.