Judge Cherol J. Nellon, Case Number: 23STCV01205, Date: 2024-11-07 Tentative Ruling

Judge: Cherol J. Nellon, Case: 23STCV01205, Date: 2024-11-07 Tentative Ruling

Case Number: 23STCV01205 Hearing Date: November 7, 2024 Dept: 14

#17

Case Background

This is a lemon law case.

On January 19, 2023, Plaintiffs Nancy and Alfonso Rodriguez filed their Complaint against Defendant General Motors, LLC.

On October 10, 2024, Plaintiffs filed this motion to compel the deposition of Defendant’s Person Most Qualified (PMQ).

On October 25, 2024, Defendant filed an opposition.

On October 31, 2024, Plaintiffs filed a reply.

Instant Pleading

Plaintiffs move to compel the deposition of Defendant’s PMQ.

Decision

Plaintiffs’ motion to compel the deposition of Defendant’s PMQ is GRANTED.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., section 2025.010.) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., section 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., section 2025.410, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, or to proceed with it, or to produce for inspection any document, … 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 … described in the deposition notice.” (Code Civ. Proc., section 2025.450, subd. (a).)

Discussion

The Court first notes that it is now less than 30 days before trial, meaning discovery is closed. However, the Court granted Plaintiffs’ motion to advance the hearing date on this motion and will rule on this dispute.

Plaintiffs’ counsel, Vanessa Oliva, alleges that she originally noticed the deposition of Defendant’s PMQ, Bryan Jensen, in February 2023. (Oliva Decl., ¶19.) Defendant refused to produce a witness for categories 6, 8-9, 11-13, 15-16, 18-19, 21-22 and 24-27, and refused to give Plaintiffs Jensen’s availability. (Id., ¶18.) On August 9, 2024, Plaintiffs served an amended notice of deposition. (Id., ¶24.) On August 14, 2024, Plaintiffs served a second amended notice of deposition setting the deposition for the new agreed date of August 20, 2024. (Id., ¶25.) Oliva took Jensen’s first deposition on August 20, 2024. (Id., ¶26.) Defendant did not serve a response or objections to the second amended notice. (Id., ¶27.) Jensen only testified as to categories 1-4, 7, 14, and 20 at his deposition. (Id., ¶26.)

Defendant first argues that its objections to the deposition notice were not waived. Defendant alleges that it did not object to the second amended deposition notice due to mistake, inadvertence, or excusable neglect. However, this standard only appears in statutes governing written discovery. (Code Civ. Proc., sections 2030.290, 2031.300, and 2033.280.) Code Civ. Proc., section 2025.410 provides that objections to any error or irregularity with a deposition notice must be served at least three calendar days before the deposition date, or the objections are waived. The section does not contain any provisions allowing relief from waiver of objections. Here, Defendant’s objections to the deposition notice were waived because it did not serve timely objections.

The Court notes that the August 14, 2024, second amended notice of deposition was served less than 10 days before the deposition date. However, any objection to the timeliness of the notice was waived when Defendant failed to respond to the notice. In any event, the second amended notice includes the same categories as the first amended notice. The only change appears to be the date of the deposition, which both parties agreed to. Thus, the deposition was properly noticed.

Defendant next argues that Plaintiffs’ notice seeks information that is not relevant because Plaintiffs do not need information about other consumers or vehicles. Information about whether a violation of the Song Beverly Act was willful is relevant to whether a defendant is liable for a civil penalty. (Oregel¿v. American Isuzu Motors, Inc.¿(2001) 90 Cal.App.4th 1094.) Here, information about other vehicles is relevant to whether Defendant was aware of defects in vehicles of the same year, make, and model as Plaintiffs’ vehicle and willfully refused to repurchase the vehicle. Defendant’s argument with respect to relevance is without merit.

Finally, Defendant argues that Plaintiffs impermissibly seek production of trade secret material. This argument is without merit because, as Plaintiffs point out, there is already a protective order in place shielding trade secret material from discovery.

The Court finds Defendant failed to proceed with a deposition by failing to produce a witness for categories 6, 8-9, 11-13, 15-16, 18-19, 21-22 and 24-27. Defendant waived objections to the notice by failing to serve objections to the second amended notice of deposition. Therefore, Plaintiff’s motion to compel the deposition of Defendant’s PMQ is GRANTED. Plaintiffs do not seek sanctions.

Conclusion

Plaintiffs’ motion to compel the deposition of Defendant’s PMQ is GRANTED.