Judge Carolyn M. Caietti, Case 37-2022-00016480-CU-BC-CTL 2023-09-15 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2022-00016480-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Discovery Hearing 37-2022-00016480-CU-BC-CTL MYERS VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 04/17/2023

Plaintiff Shannon Myers' Motion to Compel the Deposition of General Motors LLC's Person Most Knowledgeable and for Monetary Sanctions is MOOT IN PART AND GRANTED IN PART.

Plaintiff Shannon Myers' Motion to Compel the Deposition of Dave McWhorter is GRANTED with modifications as set forth below.

Plaintiff Shannon Myers' Motion to Compel the Deposition of Holly Remillard is GRANTED with modifications as set forth below.

Preliminary Matters The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) As this was the case here, the Court has considered the supplemental declarations of Larry Chae. (ROA 110, 115.) As to Plaintiff's motion to compel the deposition of Defendant's Person Most Knowledgeable, the Court has not considered other trial court rulings. (ROA 102 – Declaration of Cameron Major, at Ex. A-B; Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 [a 'written trial court ruling has no precedential value.'].) Plaintiff's reply objections (ROA 112) to the declaration of Cameron Major (ROA 102) Nos. 1-3 are overruled. Objection No. 4 to the declaration of Huizhen Lu is sustained. The declaration of Huizhen Lu is five-years outdated, does not concern this case and fails to comply with California Rules of Court, rule 3.1115 as it does not 'specifically identify the motion or other proceeding that it supports or opposes.' The Court addressed the issue of the Huizhen Lu declaration with Defendant in this case (See, ROA 59, at p. 1) and other cases. The Court will consider setting an OSC re: Sanctions if Defendant continues to use this declaration as evidence.

As to Plaintiff's motions to compel the depositions of Dave McWhorter and Holly Remillard, Plaintiff's reply objections (ROA 116) to the declarations of Cameron Major (ROA 105, 108) Nos. 1-2 are overruled.

Discussion Deposition of General Motors LLC (Person Most Knowledgeable) Calendar No.: Event ID: TENTATIVE RULINGS

2961971 42 CASE NUMBER: CASE TITLE: MYERS VS GENERAL MOTORS LLC [IMAGED] 37-2022-00016480-CU-BC-CTL Service of a deposition notice requires a party witness to attend, testify and produce documents requested in the notice. (C.C.P., § 2025.280(a).) C.C.P. section 2025.450(a) permits a motion to compel when a party fails to appear for examination after service of a deposition notice.

Here, Plaintiff moves to compel Defendant to produce a person most knowledgeable for PMK Category Nos. 2, 3, 5-9, 12, and 13. Plaintiff also moves to compel the production of documents responsive to Request for Production No. 34.

In reply, Plaintiff asserts RFP No. 34 is no longer at issue, because Defendant has already produced the requested policies and procedures. (ROA 110, Reply, at 6: 18-22; ROA 111, at ¶ 11.) Thus, the motion is moot as to this request.

With regard to PMK Category Nos. 2, 3, and 12, Defendant agreed to produce a witness as to these categories to the extent these categories pertain to Plaintiff's vehicle. However, Defendant failed to produce a witness at the February 21, 2023 deposition despite Plaintiff's meet and confer efforts and multiple requests for alternatives dates before and after the deposition.

Defendant failed to substantiate its objections to PMK Category Nos. 2, 3, 5-9, 12, and 13. These categories are temporally limited from the date of Plaintiff's vehicle's manufacture to the present.

Further, evidence of the same defects in other vehicles of the same year, make, and model as Plaintiff's vehicle are both relevant and admissible. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973 (trial court granted motion to compel production of all warranty complaints received on vehicle models for certain years); see also, Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152-53 (ruling evidence concerning the same make and model vehicle showing the same non-conformities as the subject vehicle evidenced the defendant failed to conform the subject vehicle to warranty).) Additionally, Civil Code section 1794(c) provides if a buyer establishes the defendant willfully failed to comply with its obligations, he/she is entitled to recover a civil penalty and a decision made without the use of reasonably available information germane to that decision is not a reasonable, good faith decision. (See, Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 345-346 (holding evidence of a manufacturer's internal awareness of an ineffective repair to a defect was sufficient to support civil penalty damages under Civ. Code § 1794(c); Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051-52 (ruling the plaintiff's testimony and manufacturer's telephone logs permitted the trial court to make reasonably inferences the manufacturer 'knew or reasonably should have known from the information available from the dealer,' the vehicle was a lemon).) Thus, Defendant's objections to Category No. 13, which requests testimony and documents on policies and procedures for fulfilling obligations under the Song-Beverly Consumer Warranty Act, also lack merit.

To the extent Defendant's objections rest on privilege, the objections cannot be adequately assessed based on the limited information provided. The objections to declaration of Huizhen Lu are sustained and Defendant did not provide a privilege log or seek a protective order.

Accordingly, the motion to compel is granted as to PMK Category Nos. 2, 3, 5-9, 12, and 13.

Sanctions are mandatory under C.C.P. section 2025.450(g)(1). Here, Plaintiff seeks $6,532.03 in sanctions. Although the $425.00 hourly rate for Plaintiff's counsel is reasonable, the 7.9 hours incurred for engaging in the meet and confer process and preparing the motion are excessive and will be reduced by 2.9 hours ($1,232.50). Plaintiff's request for sanctions is granted in the amount of $5,299.53.

Depositions of Dave McWhorter and Holly Remillard Plaintiff separately moves to compel the depositions of Dave McWhorter and Holly Remillard on the ground these individuals are Defendant's managing agents.

The service of a deposition notice under C.C.P. section 2025.240 is effective to require any deponent who is a party to the action or an 'officer, director, managing agent, or employee' of a party to testify and Calendar No.: Event ID: TENTATIVE RULINGS

2961971 42 CASE NUMBER: CASE TITLE: MYERS VS GENERAL MOTORS LLC [IMAGED] 37-2022-00016480-CU-BC-CTL produce documents at a deposition. (C.C.P. § 2025.280, subd. (a).) A subpoena is not necessary for a party-affiliated witness, but the 'affiliation' must exist at the time of the deposition. (Maldonado v. Sup.

Ct. (ICG Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390, 1398.) 'The question whether a particular deponent is a 'managing agent' of one of the parties for purposes of pretrial discovery proceedings must of necessity be answered pragmatically and is highly dependent on the particular factual circumstances before the court.' (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 601 (Lopez), citations omitted.) A managing agent need not also be an employee, officer, or director. (Ibid.) If the deponent is the party's employee, officer, or director, an entity has substantial practical control to compel the attendance of these individuals, including the ability to terminate an employee who refuses to appear at a noticed deposition or to end the relationship with its officer or director. (Id. at p. 603.) However, 'if the deponent has no formal or legal role within the party's organization, there must be some additional factual basis to establish the party has the practical ability to require the nonparty's compliance.' (Ibid.) The factors to determine whether a deponent is a managing agent are: (1) does the person exercise judgment and discretion in dealing with the party's matters; (2) can the person be expected to comply with the party's directive to appear; and (3) can the person be anticipated to identify himself or herself with the party's interests. (Lopez, supra, Cal.App.4th 566 at 603.) 'Generally, it is the party seeking to compel the deposition that has the initial burden to show the foundational facts to support a 'managing agent' finding.' (Id. at p. 601.) Here, Plaintiff has met her initial burden to show McWhorter and Remillard are Defendant's managing agents under the factors set forth in Lopez. As to the first factor, Plaintiff has provided evidence McWhorter and Remillard, as 'Senior Repurchase Reviewer' and 'Repurchase Reviewer' respectively, exercised judgment and discretion in evaluating Plaintiff's pre-litigation repurchase request of the subject vehicle on Defendant's behalf. (ROA 80, Chae Decl., at ¶ 5 and Ex. 1, pp. 7, 9.) As to the second factor, it is undisputed McWhorter and Remillard work at 'GM's California Customer Engagement Center.' (Id., at Ex. 5, p. 2: 1-3; Ex. 6, p. 2: 2-3.) Plaintiff has also provided evidence McWhorter and Remillard hold themselves out on their LinkedIn pages as working for Defendant. (Id. at Ex. 10, p. 1 [McWhorter represents he has worked for Defendant for eighteen years]; Ex. 11, p. 1 [Remillard represents she has worked for Defendant for eleven years].) Together, this evidence indicates Defendant exercises some level of control over these witnesses such that Defendant has the legal or practical ability to influence their decisions to attend their depositions. (See, Lopez, supra, 246 Cal.App.4th at pp. 602-603.) This evidence, coupled with the fact that Plaintiff seeks the witnesses' testimony on their roles in Defendant's denial of the repurchase request, also indicates these witnesses would identify themselves with Defendant's interests under the third factor. Defendant has not objected to or opposed Plaintiff's evidence. Nor has Defendant provided contradicting evidence. Accordingly, McWhorter and Remillard are Defendant's managing agents under C.C.P. section 2025.240, and the deposition notices are sufficient to require Defendant to produce these individuals to testify and produce documents.

Defendant failed to substantiate most of its objections to Requests for Production Nos. 1-4 in the amended deposition notices. However, the Court agrees RFP No. 1, which seeks all documents reviewed and relied on by these witnesses for all the Case Reviews they completed in April 2022, is overbroad. The Court narrows the scope of RFP No. 1 to all documents reviewed and/or considered by these witnesses in connection with the Case Reviews they completed for Plaintiff's 2018 Acadia in April 2022.

Based on the foregoing, Plaintiff's motions to compel the depositions of McWhorter and Remillard are granted, with the modifications to RFP No. 1 set forth above.

Concluding Orders Defendant General Motors is ordered to designate and produce the person(s) most knowledgeable as to Calendar No.: Event ID: TENTATIVE RULINGS

2961971 42 CASE NUMBER: CASE TITLE: MYERS VS GENERAL MOTORS LLC [IMAGED] 37-2022-00016480-CU-BC-CTL PMK Category Nos. 2, 3, 5-9, 12, and 13 at a mutually agreeable date and time (no later than October 15, 2023), as noticed by Plaintiff.

Defendant General Motors is ordered to produce Dave McWhorter for deposition and the related document production no later than October 15, 2023. Plaintiff must duly-notice the deposition.

Defendant General Motors is ordered to produce Holly Remillard for deposition and the related document production no later than October 15, 2023. Plaintiff must duly-notice the deposition.

The parties may conduct these depositions remotely pursuant to C.C.P. section 2025.310.

Defendant is ordered to pay Plaintiff monetary sanctions in the amount of $5,299.53 by October 15, 2023.

This minute order will be the final order of the Court if the tentative ruling is confirmed without modification. Plaintiff is ordered to serve written notice of the Court's final order on all parties by September 19, 2023, unless all parties submit on the Court's tentative ruling or waive notice at the hearing.

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