Judge Christopher K. Lui, Case Number: 22STCV05568, Date: 2023-09-28 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff ASLI, LLC moves to compel the deposition of Defendant’s person most knowledgeable.

Plaintiff ASLI, LLC’s motion to compel the deposition of Defendant’s person most knowledgeable with production of documents is DENIED as to deposition categories Nos. 1, 13 – 16 and GRANTED as to deposition categories Nos. 2 – 12. The motion to compel production of documents is GRANTED as to requests for production Nos. 1, 2, 3, 4, 5, 6, 7, 8 and DENIED as to requests for production Nos. 9 – 12.

Plaintiff ASLI, LLC moves to compel the deposition of Defendant’s person most knowledgeable.

(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[1], 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.

(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.

. . .

(g)

(1) 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.
. . .

Relating to this action, Defendant failed to produce a PMK at the April 8, 2022 deposition. (Pascal Decl., ¶ 6.) On April 12, 2022, Defendant reiterated that it would only produce a PMK as to certain categories and would not produce any documents at the deposition, and failed to provide alternative dates. On April 18, 2022, Plaintiff requested Defendant’s availability to meet and confer regarding the PMK Depo.

It was not until over a year later—on May 3, 2023—when Plaintiff sent another correspondence requesting a meet and confer, having not received a response from Defendant. On May 10, 2023 and August 18, 2023, Plaintiff attempted to meet and confer with Defendant, but Defendant’s counsel did not respond. (Pascal Decl., ¶ 10.)

Due to Defendant’s failure to meet and confer in good faith, the Court finds that Plaintiff satisfied the meet and confer requirement. (Pascal Decl., ¶¶ 5 – 10.)

(a) The service of a deposition notice under 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 attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

Defendant is required to designate and produce a PMK on the 16 noticed deposition topics, absent having obtained a protective order pursuant to Civ. Proc. Code, § 2025.420[2] that a PMK need not be produced on certain topics.

On April 1, 2022, Defendant served Objections to the March 25, 2022 Notice of Deposition of the person most knowledgeable for General Motors LLC. (Pascal Decl., Exh. 2.) However, serving written objections, even if valid objections for failure to comply with Civ. Proc. Code, § 2025.210 et seq., does not stay the deposition or excuse attendance. If such objections are determined by the Court to be valid, this merely precludes using the deposition testimony as evidence pursuant to Civ. Proc. Code, § 2025.620.

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

The Court will address the objections asserted by Defendant as to each Category and Request for Production as set forth in the Separate Statement:

Defendant has agreed to produce a PMK regarding the subject vehicle’s repair history as reflected in the Global Warranty History Report. (See Sep. State., Page 2.) Defendant has also agreed to produce a witness to testify about any repair orders for the Subject Vehicle that GM may have obtained from GM-authorized dealership(s) who may have serviced, maintained, or repaired the Subject Vehicle. Plaintiff does not indicate there are other repair visits—of which it would necessarily have knowledge—that are not included in this scope.

The objection on the grounds of vagueness and ambiguity is OVERRULED as without merit. The common sense meaning of these words is apparent.

The objection on the grounds of overbreadth, undue burden, oppression is OVERRULED. The category relates to the subject vehicle only. The category requires Defendant to produce a witness relative to all documents within its possession, custody or control. (See Civ. Proc. Code, § 2031.230.)

“The objection based upon burden must be sustained by evidence showing the quantum of work required.” (W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) Moreover, “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (Id.) “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.” (Id. at 418 [recognizing the court’s discretionary power to grant in part and deny in party and to balance the equities between the purpose and need for information against the burden which production entails].) “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Defendant has not represented that it will produce a PMK as to the entire category of documents. Defendant agrees to produce a witness as to repairs actually performed pursuant to a TSB, but the scope is broader than this, requiring all TSBs applicable to the subject vehicle, included those superseded.

As Plaintiff argues, if a TSB was erroneously overlooked by the technician during the technician’s due diligence, it would necessarily not be included in the repair order. Superseded TSBs would reflect a continuing review and assessment by the manufacturer.

The objection on the grounds of overbreadth and undue burden is OVERRULED. Defendant did not justify these objections. (See discussion above re: Category No. 1.)

Defendant claims that Plaintiff needs to identify a reasonable number of specific TSBs, but Plaintiff is entitled to discover the reason and process applicable to each TSB applicable to the subject vehicle that was issued, even if superseded.

The objection on the grounds of overbreadth and undue burden is OVERRULED. Defendant did not justify these objections. (See discussion above re: Category No. 1.)

Defendant has only agreed to produce a witness as to a repurchase assessment for the subject vehicle. However, Plaintiff is entitled to discover company policies and procedures for repurchase assessments to see if they comply with the California Lemon Law.

Defendant’s objection on the ground of overbreadth and undue burden is OVERRULED. The polices and procedures for evaluating vehicle repurchases is presumably made on a broad basis, not specifically as to each model of a vehicle.

Defendant has only agreed to produce a witness as to the routine maintenance and new vehicle limited warranty for the subject vehicle. However, Plaintiff is entitled to discover company policies and procedures for warranty repairs to see if Defendant followed such policies and procedures properly. Plaintiff is also entitled to discover all warranties applicable to the subject vehicle, not just the new vehicle limited warranty.

The objection on the grounds of overbreadth and undue burden is OVERRULED. Defendant did not justify these objections. (See discussion above re: Category No. 1.)

Defendant claims that this question should be directed to GM-authorized dealerships, which diagnosed problems and performed the routine maintenance and warranty repairs reflected n the subject vehicle’s repair history. However, this category assumes that Defendant would be able to retrieve information regarding which of its diagnostic and repair procedures were consulted and followed. If this was not possible, a PMK must testify why not.

Defendant’s objection on the ground of burden and relevance is SUSTAINED. The burden of locating all of the information sought outweighs the information to be gained from this category.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

Where Defendant refers to other discovery responses, this is an improper response:

Answers must be complete and responsive. Thus, it is not proper to answer by stating, "See my deposition," "See my pleading," or "See the financial statement." Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).) As Plaintiff argues, Defendant knows whether a TSB or recall applies to the subject vehicle, whereas Plaintiff may not have the technical expertise to make such determination.

Where Defendant refers to other discovery responses, this is an improper response. (Deyo, supra, 84 Cal.App.3d at 783-84.)

The objection on the grounds of overbreadth and undue burden is OVERRULED. Indeed, there is no indication that all applicable TSBs cannot be located and retrieved with an electronic search.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

Defendant’s response does not address the documents requested. Where Defendant refers to other discovery responses, this is an improper response. (Deyo, supra, 84 Cal.App.3d at 783-84.)

Defendant’s objection on the ground of attorney-client privilege and attorney work-produce doctrine is SUSTAINED to the extent that such privileged information is responsive. The Court does not agree that an investigation necessarily involves attorneys, as it can be a purely technical (not legal) determination. However, Defendant is to produce a privilege log identifying which documents were withheld, and on what basis.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

Defendant’s response does not address the documents requested. Where Defendant refers to other discovery responses, this is an improper response. (Deyo, supra, 84 Cal.App.3d at 783-84.)

Defendant claims that this question should be directed to GM-authorized dealerships, which diagnosed problems and performed the routine maintenance and warranty repairs reflected In the subject vehicle’s repair history. However, this category assumes that Defendant would be able to retrieve information regarding which of its diagnostic and repair procedures were consulted and followed. If this was not possible, Defendant must explain why. See, e.g., Civ. Proc. Code, § 2231.230:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

Plaintiff’s offered good cause in the separate statement is not persuasive as to the detailed information sought, which implicates complaints about vehicles other than the same model as the subject vehicle. Also, there is no explanation as to how the details sought will tend in reason to prove or disprove a disputed fact of consequence or lead to other evidence which will do so.

“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [61 Cal. Rptr. 2d 567].) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

(Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (bold emphasis and underlining added), overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, n. 8.)

Defendant’s objection on the ground of burden is SUSTAINED. The burden of locating all of the information sought outweighs the information to be gained from this category.

[1] There is no indication that Defendant served a valid objection under CCP § 2025.410, which addresses defective notice of deposition that does not comply with Article 2 (CCP § 2025.210 et seq.) See CCP § 2025.410(a). The types of objections contemplated by CCP § 2025.210 et seq., deal with procedural requirements such as when a defendant or plaintiff may serve a deposition notice (CCP § 2025.210), the contents required to be included in a deposition notice (CCP §§ 2025.220, 2025.230), to whom notice of the deposition must be given (CCP § 2025.240), the location of the deposition (CCP §§ 2025.250, 2025.260), the number of days required to be given in advance of the deposition (CCP § 2025.270), and the manner of service upon party deponents (CCP § 2025.280).

[2]

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

. . .

(9) That certain matters not be inquired into.

(10) That the scope of the examination be limited to certain matters.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

. . .

(CCP § 2025.420(a) & (b).)