Judge: Blaine K. Bowman, Case: 37-2022-00043463-CU-CO-NC, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 12, 2023

10/13/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Contract - Other Motion Hearing (Civil) 37-2022-00043463-CU-CO-NC GEOCON LEASING SERVICES VS. GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/01/2023

The Motion to Compel the Deposition of Defendant's Person Most Qualified and Production of Documents brought by plaintiff GeoCon Leasing Services (Plaintiff) is GRANTED. Defendant General Motors LLC (General Motors) is ORDERED to designate a 'person most qualified,' to make that person available for deposition by no later than October 23, 2023, and to bring and produce responsive documents at the time of that deposition.

General Motors is further ORDERED to pay monetary sanctions in the amount of $5,000.00 pursuant to Code of Civil Procedure § 2025.230. Said sanctions are to be sent to Attorneys Brian Cline and Mark Johnson of Cline APC at 7855 Ivanhoe Ave, Suite 400, La Jolla, California 92037 by not later than October 23, 2023.

In its opposition papers, General Motors argues that Plaintiff 'unilaterally served its Notice of Deposition of the Person Most Qualified for General Motors LLC... to take place on June 7, 2023. (Opposition, Section II, lines 14-16.) The discovery code allows a party to notice a deposition on only 10 days' notice.

(Code of Civil Procedure § 2025.270(a).) It also allows a party to notice a deposition 'unilaterally,' to use the word used in General Motors' opposition brief. As such, the fact that Plaintiff issued the deposition notice 'unilaterally' is not of critical importance to the Court.

General Motors argues that Plaintiff failed to meet and confer about a mutually convenient time to actually hold the deposition. While the code does require meet and confer prior to bringing a motion, it appears that General Motors' strategy here was to simply respond that: 'GM will not produce a witness at the date and time but will produce a witness at a mutually convenient time and place.' (Opposition, Section II (citation omitted).) The discovery code does not contemplate a party unilaterally refusing to appear for a properly noticed deposition. Moreover, in terms of good faith negotiation, simply referencing a 'mutually convenient time and place' is insufficient – General Motors did not propose any specific dates during which it would make its 'person most qualified' available for deposition when standard practice (and good faith negotiation) would generally requires a proposal of three dates so that the propounding party could select one. As it stands, General Motors' unilateral refusal to appear does not comply with the code and does not demonstrate good faith in trying to comply with the code.

Additionally, the Court, being readily familiar with its own docket, recognizes the argument made in the instant motion as being virtually the same as the argument made in the previous case of McMullen v. General Motors, LLC (22-15729). The declaration in support of the instant motion references the McMullen case, and thus, on its own motion, this Court takes judicial notice of the entire publicly-available record and files in that case. That case involved the same lawyers (Cline APC for the Calendar No.: Event ID:  TENTATIVE RULINGS

2993138 CASE NUMBER: CASE TITLE:  GEOCON LEASING SERVICES VS. GENERAL MOTORS LLC [IMAGED]  37-2022-00043463-CU-CO-NC plaintiff, and Erskine Law Group APC for the defendant), and involved the same named manufacturer defendant: General Motors LLC. As such, there is a 'cookie cutter' aspect to the instant motion that is becoming apparent.

The last time this motion was presented, this Court included the same language as above indicating that a deposition can be noticed 'unilaterally' under the Code and noting that refusing to appear for deposition simply by notifying the other side is not an acceptable means to refuse to sit for deposition.

While courts generally encourage professionalism and courtesy among counsel to schedule depositions by meeting and conferring to find mutually agreeable times, that is not actually required. Beyond that, it is now appearing from the repetition of this problem that General Motors is failing to appear for depositions routinely as a matter or practice and policy – rather than as a matter of circumstance and scheduling. The Court finds this troubling.

Moreover, as attorney fees are generally to be awarded in lemon law cases to a successful plaintiff, the compensatory aspect of the discovery code's fee-shifting statute provides little incentive for General Motors' counsel to work with Plaintiff's counsel to avoid the added costs of going through the process of bringing a motion to compel. Should the Court continue to see routine, boilerplate motions identifying this exact same problem and defending on grounds that a plaintiff 'unilaterally' set a deposition date, the circumstances may present a scenario in which it is appropriate to exercise discretion to move beyond the 'lesser sanctions first' approach typically utilized in discovery and perhaps award sanctions above and beyond mere monetary sanctions, as the awarding of monetary sanctions seems to have limited impact in terms of discouraging what is becoming routine behavior by defendant General Motors and its counsel.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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