Judge: Cynthia A Freeland, Case: 37-2023-00008232-CU-BC-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2023-00008232-CU-BC-NC PAGE VS. GENERAL MOTORS, LLC CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 07/25/2023

Plaintiff Jessica Page ('Plaintiff')'s motion to compel the deposition of Defendant General Motors LLC ('Defendant')'s person most knowledgeable ('PMK') and to produce documents is granted.

Initially, the court declines to deny the motion for Plaintiff's alleged failure to meet and confer before filing the motion. Before bringing a motion to compel attendance at a deposition, a party must make a reasonable and good faith effort to resolve each issue presented by the motion. See Cal. Code Civ. P. §§ 2016.040, 2025.450(b)(2). Whether this was accomplished depends upon the case's circumstances.

See Obregon v. Sup. Ct. (1998) 67 Cal. App. 4th 424, 431. '[T]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions . . . A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.' Townsend v. Sup. Ct.

(1998) 61 Cal. App. 4th 1431, 1435, 1439; Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294. In this case, the evidence shows that on May 22, 2023, Plaintiff unilaterally noticed Defendant's PMK's deposition for June 6, 2023. See Lara Decl., Ex. 1. On May 26, 2023, Defendant served its objections to Plaintiff's Notice of Deposition. Ibid., Ex. 2. On May 30, 2023, Plaintiff's counsel sent Defendant's counsel a meet and confer correspondence. Ibid., Ex. 3. Contrary to Defendant's characterization, the court views Plaintiff's counsel's correspondence to be a good faith attempt to address both: (1) Plaintiff's reasoning for why Defendant should comply with the Notice of Deposition, and (2) Defendant's objections to the Notice of Deposition. Indeed, Plaintiff's counsel: (1) asked Defendant's counsel to provide alternative dates for the deposition, and (2) invited Defendant's counsel to discuss the matter(s) further. Plaintiff's counsel further indicated that Defendant's objections, particularly as to vagueness and/or ambiguity, were not sufficiently clear so as to permit Plaintiff's counsel to further clarify the subject categories and/or requests. On June 8, 2023, Defendant's counsel responded to Plaintiff's counsel's May 30, 2023 meet and confer letter by, in essence, standing by Defendant's original objections. Ibid., Ex. 4. On July 13, 2023, Plaintiff's counsel attempted to meet and confer telephonically with Defendant's counsel; however, the parties were unable to informally resolve their dispute. Ibid., ¶ 10. In sum, the court finds that Plaintiff fulfilled her meet and confer obligations before filing the present motion and must respectfully agree with Plaintiff that further meet and confer efforts would not have been fruitful – the parties simply reached an impasse. Accordingly, the court will turn to the motion's merits.

California Code of Civil Procedure ('CCP') § 2025.010 authorizes a party to obtain discovery by way of a deposition of any person, including any party to the action. See Cal. Code Civ. P. § 2025.010. When the deponent is a corporate entity, the deposition notice must describe with reasonable particularity the matters upon which examination is requested. See Cal. Code Civ. P. § 2025.230. CCP § 2025.230 Calendar No.: Event ID:  TENTATIVE RULINGS

3000957 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC prescribes that '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.' Ibid.

Moreover, '[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do[.]' Maldonado v. Super. Ct. (2002) 94 Cal. App. 4th 1390, 1395-1396. In addition, '[w]hen a request for documents is made . . . the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.' Ibid. at 1396.

Proper service of a deposition notice 'is effective to require any deponent who is a party to the action . . .

to attend and to testify . . . .' Cal. Code Civ. P. § 2025.280(a). 'If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . 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.' Cal. Code Civ. P. § 2025.450(a). The propounding party must 'set forth specific facts showing good cause justifying the production for inspection of any document . . . described in the deposition notice.' Cal. Code Civ. P. § 2025.450(b)(1). '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. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. If the propounding party establishes good cause, the burden shifts to the deponent to justify its objections. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221.

Defendant's general objections to the Notice of Deposition, which Defendant submitted on May 26, 2023, are not well taken. First, to the extent Defendant has refused to produce its PMK on the grounds that Plaintiff unilaterally noticed the deposition, such contention is not well taken. CCP § 2025.270(a) provides that a notice of deposition may be served on only 10 days' notice. See Cal. Code Civ. P. § 2025.270(a). CCP § 2025.270(a) does not require that counsel meet to agree upon the deposition date before the notice is served. Indeed, the lack of consultation prior to the issuance of the Notice of Deposition served no prejudice to the parties given that Defendant, in its objections, noted that its PMK would appear at a mutually convenient time and place.

Second, to the extent that Defendant has asserted the attorney-client privilege and/or attorney work-product doctrine, Defendant must provide Plaintiff with 'sufficient factual information for [Plaintiff] to evaluate the merits of that claim including, if necessary, a privilege log.' Cal. Code Civ. P. § 2031.240(c)(1). Defendant failed to do so.

Third, to the extent Defendant contends that producing its PMK to testify as to certain categories or to produce the requested documents would be unduly burdensome, it was incumbent upon Defendant to provide evidence that the quantum of work required to respond would create an undue burden and that the ultimate effect of the request would be incommensurate with the result sought. See Williams v. Superior Court (2017) 3 Cal. 5th 531, 549-50; West Pico Furniture Co. of Los Angeles v. Superior Court In and For the County of Los Angeles (1961) 56 Cal. 2d 407, 417. Defendant failed to make the requisite showing.

Fourth, objections based upon ambiguity, confusion, or overbreadth are typically unavailing unless the discovery request is so unintelligible that the responding party cannot in good faith respond. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Super. Ct. (1961) 56 Cal. 2d 423, 428. Except as specifically set forth herein, Defendant makes no such showing. In addition, the court finds that the language used in the requests is not vague or ambiguous given that the requests contain fairly general terms with commonly understood definitions and connotations.

Calendar No.: Event ID:  TENTATIVE RULINGS

3000957 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC Fifth, to the extent Defendant has asserted that the Categories and/or RFPs seek to disclose privileged confidential, proprietary, and/or trade secret information, Defendant bore the initial burden of proving that the privilege applies. See Amgen Inc. v. Health Care Services (2020) 47 Cal. App. 5th 716, 733.

Defendant failed to meet its burden. To the extent any of the Categories or RFPs implicate Defendant's confidential, proprietary, and/or trade secret information, the parties are directed to meet and confer as to the terms of a protective order before Defendant is required to produce any information in connection with those Categories and/or RFPs.

Finally, the court must respectfully disagree with Defendant that the subject Categories and RFPs are not relevant to the subject matter of this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence. 'Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Cal. Code Civ. P. § 2017.010. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. See Gonzalez v. Sup. Ct. (City of San Fernando) (1995) 33 Cal. App. 4th 1539, 1546. Courts generally recognize that the right to discovery is broad, and disclosure is favored 'unless the request is clearly improper by virtue of well-established causes for denial.' Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541. That being said, an objection that the request is not relevant to the subject matter of the lawsuit may be a valid objection. See Cal. Code Civ. P. § 2017.010. Indeed, while the scope of discovery is broad, it is not limitless. Discovery that is not reasonably calculated to lead to the discovery of admissible evidence or is not helpful in preparing for trial is not authorized. See Digital Music News LLC v. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. To determine whether discovery requested is reasonably calculated to lead to the discovery of admissible evidence, the court must look to the allegations in the operating pleading. See John B. v. Sup. Ct. (2006) 38 Cal. 4th 1177, 1206.

In this case, the court finds that the Categories and RFPs are directly relevant to the subject matter of this action. For example, by virtue of ¶ 33 of the Complaint as well as Plaintiff's Prayer for Relief, Plaintiff seeks penalties under California Civil Code ('CC') § 1794(c). CC § 1794(c) authorizes the imposition of a civil penalty up to two times the amount of actual damages if the buyer proves the manufacturer's failure to comply with the prescriptions of the Song-Beverly Act was willful. Manufacturers' policies, guidelines, and procedures are but one factor that a trier of fact may consider when determining whether a manufacturer's course of conduct was willful. See, e.g., Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 136; CACI Jury Instruction No. 3244. In addition, Defendant, as part of its Answer, has asserted several affirmative defenses to which Plaintiff is entitled to the factual basis, including, without limitation, Defendant's claims that it believed in good faith that its actions were legal and that replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known. See Defendant's Nineteenth and Twenty-Fourth Affirmative Defenses, ROA No. 9, pp. 6-7.

Toward that end, Category Nos. 2-6 and 13 and RFP Nos. 3-4 and 9 concern: (1) all Technical Service Bulletins ('TSBs') concerning the subject vehicle and why the TSBs were issued; (2) the process by which Defendant issues its TSBs; (3) all recalls applicable to the subject vehicle and why those recalls were issued; and (4) all information that led to the issuance of Recall N212354520. Defendant must produce a PMK to testify as to Category Nos. 2-6 and 13 and RFP Nos. 3-4 and 9; however, the court agrees with Defendant that Category Nos. 4-6 and 13 and RFP Nos. 4 and 9 are overbroad to the extent that they are not limited to the subject vehicle. Consequently, as to Category No. 4, Defendant must produce a PMK to testify as to the process by which any TSBs were issued pertaining to the subject vehicle. As to Category No. 13 and RFP No. 9, both of which pertain to the issuance of Recall N212354520, Defendant must produce its PMK to provide testimony and documents as to any information concerning the subject vehicle or vehicles of the same make, model, and year which led to the issuance of Recall N212354520. As to Category Nos. 5-6 and RFP No. 4, Defendant must produce its PMK to provide testimony and documents concerning the vehicle's recall history to the extent any such recalls relate to the issues Plaintiff experienced with the vehicle which, according to ¶ 11 of the Complaint, includes: (1) the 'Service Engine Soon' warning light illuminating, and (2) issues with the 'Heated Vented Seats Retrofit Due to Chip Shortage.' Calendar No.: Event ID:  TENTATIVE RULINGS

3000957 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC Category Nos. 1, and 11-12 and RFP Nos. 1-2, 7, and 8 seek documents and testimony concerning: (1) all repairs performed on the subject vehicle, including attempts to diagnose problems and time spent diagnosing problems; (2) all documents relating to the vehicle; and (3) the diagnostic and repair procedures that Defendant consulted and followed during completion of repairs of the vehicle. The requested information is probative of whether the vehicle suffered from a defect(s) and whether Defendant and/or Defendant's authorized service/repair facility(ies) could repair the vehicle to conform to the express and implied warranties within a sufficient number of times, all of which Plaintiff must prove as part of her case-in-chief. See CACI No. 3201. However, Category No. 1 is overbroad to the extent Plaintiff seeks testimony as to 'all repairs' to the vehicle. Such testimony shall be limited to the repairs that were attempted to address Plaintiff's concerns regarding the vehicle. Similarly, testimony on Category No. 11 must be limited to specific repairs at issue in this case. RFP No. 1 is overbroad to the extent that Plaintiff requested 'all documents' related to the vehicle – a seemingly open-ended request.

Given that this is a breach of warranty action, Defendant must produce the following documents related to the vehicle: (1) the warranty history; (2) all warranties that accompanied the vehicle at the time of Plaintiff's purchase; and (3) all repair orders concerning the specific issues of which Plaintiff has complained. Similarly, Defendant must produce documents responsive to RFP No. 2 to the extent those documents concern repairs made to the vehicle in response to Plaintiff's concerns. As to RFP No. 7, Defendant must produce documents regarding the repair procedures that Defendant consulted and followed while attempting to repair the issues of which Plaintiff complained.

Finally, as to Category Nos. 7-10 and RFP Nos. 5-6, the requests are reasonably calculated to lead to the discovery of admissible evidence and are otherwise not overly broad, vague, or ambiguous.

Defendant must therefore produce its PMK to provide testimony and documents responsive to those requests.

In light of the foregoing, the court grants the motion as set forth herein. It appears from the evidence presented that Defendant is yet to offer potential deposition dates. Defendant shall attend the hearing prepared with at least three dates within the next thirty (30) days for its PMK's deposition from which Plaintiff shall come prepared to select one. Failure to comply in this regard will result in the court setting the date, which date would be subject to change only by written agreement between counsel or further court order.

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