Judge: Ashfaq G. Chowdhury, Case: 23GDCV02120, Date: 2024-06-14 Tentative Ruling
Case Number: 23GDCV02120 Hearing Date: June 14, 2024 Dept: E
Hearing Date: 06/14/2024 – 8:30am
Case No: 23GDCV02120
Trial Date: 10/28/2024
Case Name: ROBERT FELIX II, an individual v. GENERAL MOTORS, LLC, and DOES 1-10
inclusive
TENTATIVE
RULING MOTION TO COMPEL DEPO
BACKGROUND
Plaintiff,
Robert Felix II, filed the instant action against General Motors, LLC on 10/06/2023
alleging two causes of action: (1) Violation of the Song-Beverly Consumer
Warranty Act and (2) Violation of the Magnuson-Moss Warranty Act.
RELIEF REQUESTED
“Plaintiff
Robert Felix II (“Plaintiff”) will move this Court for the following:
1. An Order compelling
the deposition of Defendant General Motors, LLC’s Person or Persons Most
Qualified, with production of documents, within thirty (30) days; and
2. An Order imposing
monetary sanctions against Defendant General Motors, LLC in the amount of
$2,250.00, or in any other amount the Court deems just.
This Motion is made
pursuant to Code of Civil Procedure §§ 2025.230, 2025.450, and other applicable
statutes. This Motion is further based upon this Notice, the attached
Memorandum of Points and Authorities in support thereof, the concurrently filed
Separate Statement, the Declaration of Christopher R. Hunt, and all pleadings,
records, and papers on file herein, as well as such other oral arguments as may
be presented at the hearing on this Motion.”
(Pl. Mot. p. 2.)
PROCEDURAL
Moving Party: Plaintiff, Robert Felix II
Responding Party: Defendant, General Motors LLC
Moving Papers: Motion;
Separate Statement; Proposed Order
Opposing Papers: Opposition; Separate Statement; Major
Declaration
Reply Papers: Reply; Evidentiary Objections to Major
Declaration
Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b), CRC 3.1300(a)): Ok
Correct Address: (CCP § 1013, § 1013a, § 1013b): Ok
LEGAL STANDARD – MOTION TO COMPEL
DEPOSITION
Under CCP § 2025.450:
(b) A
motion under subdivision (a) shall comply with both of the following:
(1) The motion shall set forth specific facts
showing good cause justifying the production for inspection of any document,
electronically stored information, or tangible thing described in the
deposition notice.
(2) The
motion shall be accompanied by a meet and confer declaration under Section
2016.040, or, when the deponent fails to attend the deposition and produce the
documents, electronically stored information, or things described in the
deposition notice, by a declaration stating that the petitioner has contacted
the deponent to inquire about the nonappearance.
(CCP
§2025.450(a)-(b).)
ANALYSIS
Section 2025.450(a)
“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.” (CCP §2025.450(a).)
Here, Plaintiff’s motion is not entirely
clear which deposition notice the motion/separate statement is based off of.
Plaintiff mentions how it served five total deposition notices on Defendant,
the last one being the Fourth Amended Deposition Notice. It appears, based on
the moving and opposition separate statements that include matters on which the
deponent is to be examined and items to be produced, that the parties are basing
this motion on the Fourth Amended Notice of Deposition.
The Hunt declaration (Plaintiff’s counsel)
is extensive and explains how on several occasions it has attempted to schedule
a deposition and meet and confer with Defendant about Defendant’s objections to
the deposition notices.
Section 2025.450(b)(1)
“The
motion shall set forth specific facts showing good cause justifying the
production for inspection of any document, electronically stored information,
or tangible thing described in the deposition notice.” (CCP § 2025.450(b)(1).)
Here, the Fourth Amended Notice of
Deposition contained 10 items to be produced. Both parties filed separate
statements. Defendant objected on several grounds to all requests.
The 10 items are as follows:
1. WRITINGS which refer to, evidence or
reflect service or repairs performed on the SUBJECT VEHICLE at any time,
including, but not limited to, the warranty repair history, service request
documents, work orders, repair orders, labor receipts, parts order forms,
computer printouts, parts receipts and billing statements.
2. Any and all correspondence with any
person, entity or organization other than YOUR attorney relating or referring
in any way to Plaintiff or the SUBJECT VEHICLE.
3. Your California lemon law policy and
procedure manual(s) used by your dealers or authorized customer service
representatives.
4. YOUR Customer Relations file regarding
Plaintiff or the SUBJECT VEHICLE.
5. WRITINGS provided to YOUR Customer
Relations representatives, which refer, reflect or relate to rules, policies or
procedures concerning the issuance of vehicle purchase refunds or replacements
pursuant to the California Song-Beverly Consumer Warranty Act.
6. YOUR Technical Service Bulletin Index,
and any TSB’s that relate to the WARRANTY NONCONFORMITY(S) alleged in this
case.
7. Any recalls that apply to the SUBJECT
VEHICLE.
8. WRITINGS that YOU reviewed in
determining not to repurchase or replace the SUBJECT VEHICLE prior to the date
Plaintiff’s lawsuit was filed.
9. YOUR lemon law policy and procedure
manual.
10. A copy of any photographs or videos of
the SUBJECT VEHICLE.
(Pl. Ex. R.)
Here, Plaintiff has demonstrated good
cause for requests: 1, 2, 4, 6, 7, 8, and 10. Objections as to these requests
are overruled.
The Court fails to see how good cause is
demonstrated for 3, 5, and 9.
Further, the Court notes that the Fourth
Amended Deposition Notice included the following seven matters on which the
deponent is to be examined:
1. Questions relating to why YOU did not
repurchase or replace the SUBJECT VEHICLE.
2. Questions relating to why YOU have not
yet repurchased or replaced the SUBJECT VEHICLE.
3. Questions relating to the nature and
extent of all the service history, warranty history, and repairs relating to
the SUBJECT VEHICLE.
4. Questions relating to all
COMMUNICATIONS between YOU and anyone other than YOUR attorneys regarding
Plaintiff or the SUBJECT VEHICLE.
5. Questions relating to YOUR policies and
procedures for complying with the lemon law.
6. Questions relating to any investigation
by YOU to determine if the SUBJECT VEHICLE qualified for repurchase or
replacement prior to the date Plaintiff’s lawsuit was filed.
7. Questions relating to the WARRANTY
NONCONFORMITY(S) complained of by Plaintiff or made on behalf of Plaintiff.
(Pl. Ex. R.)
First, the Court notes that nothing in § 2025.450
mentions that movant has to demonstrate good cause as to the matters on which
the deponent is to be examined.
Defendant objected to all 7 matters on
which deponent is to be examined. However, the opposition states that it has
offered to produce a PMQ on six of the seven topics in this case.
The Opposition is not clear as to which
six topics they agree to produce a PMQ on.
However, the Opposition’s Separate
Statement seems to indicate that Defendant is agreeing to produce a PMQ on
topics 2-7. Therefore, objections to categories 2-7 are overruled.
As to the objections to category 1, the
Court does not find them availing. Objections to category 1 are overruled.
Discussion – § 2025.450(b)(2)
“The motion shall be accompanied by a meet
and confer declaration under Section 2016.040, or, when the deponent fails to
attend the deposition and produce the documents, electronically stored
information, or things described in the deposition notice, by a declaration
stating that the petitioner has contacted the deponent to inquire about the
nonappearance.” (CCP §2025.450(b)(2).)
“A meet and confer declaration in support
of a motion shall state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.” (CCP §2016.040.)
Here, Plaintiff’s counsel met and
conferred.
TENTATIVE RULING
Plaintiff’s
motion is GRANTED in part.
As to the items to be produced, Plaintiff
has demonstrated good cause for requests: 1, 2, 4, 6, 7, 8, and 10. Objections
as to those requests are overruled. The Court fails to see how good cause is
demonstrated for requests 3, 5, and 9; however, the Court is open to hearing
argument.
As to the 7 matters on which the deponent
is to be examined, Defendant agreed to produce a PMQ as to matters 2-7, thus
objections to producing a PMQ on matters 2-7 are overruled. Objections as to
matter 1 are overruled as well. Further, the Court notes that § 2025.450 does
not appear to require good cause for the topics of examination at the
deposition.
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.” (CCP § 2025.450(g)(1).)
Plaintiff’s counsel requests sanctions in the amount
of $2,250.00. This request is based on an hourly fee of $375.00. Plaintiff’s
counsel estimates 6 hours spent meeting and conferring and preparing the
documents.
Opposition argues that if Plaintiff met and conferred,
Court intervention would not have been needed.
Reply notes that GM never responded to numerous
correspondence to address substantive issues nor returned Plaintiff’s phone
calls on several occasions.
The Court will hear argument.