Judge Cynthia A Freeland, Case Number: 37-2023-00042716-CU-BC-NC, Date: 2024-06-21 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00042716-CU-BC-NC, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - May 30, 2024

05/31/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00042716-CU-BC-NC CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 05/06/2024

Plaintiff Anna Cardona ('Plaintiff')'s motion to compel the deposition of Defendant General Motors, LLC ('Defendant')'s person most knowledgeable ('PMK') and to produce documents, and for sanctions, is granted.

Plaintiff's request for judicial notice ('RJN') is granted.

Initially, the court must address Defendant's documented pattern of troubling litigation tactics in Song Beverly Consumer Warranty Act (the 'Act') cases. Counsel have appeared before this court in other matters involving similar discovery disputes, most recently in Neuberger v. General Motors, LLC, Case No. 37-2022-00009833-CU-CO-NC ('Neuberger') and Rahib v. General Motors, LLC, Case No.

37-2021-00051724-CU-MC-NC ('Rahib'). In each case, the plaintiff noticed Defendant's PMK's deposition and asked that certain documents responsive to the deposition notice be produced at the deposition. Each time, Defendant objected to the deposition notice with a series of boilerplate objections yet indicated that it would produce a PMK at a mutually agreed upon date on a more limited range of topics. After failed meet and confer efforts on Plaintiff's counsel's part, the plaintiff filed a motion to compel substantially similar in form and substance to the pending motion. Defendant then would file a nearly identical opposition – indeed, a side-by-side comparison of Defendant's oppositions in Neuberger, Rahib, and the present action suggests that Defendant's counsel utilizes a form opposition for these types of motions without regard to the court's previous rulings. More troubling, however, is that Defendant's counsel should know, at a bare minimum from this court's rulings in Neuberger and Rahib as well as the rulings in other departments as set forth in Plaintiff's RJN, that its objections are not well taken. For instance, Plaintiff's counsel served Defendant's counsel with Plaintiff's Notice of Deposition of the Person Most Qualified for General Motors LLC and Demand to Produce Documents at Deposition (the 'Deposition Notice') on November 10, 2023, noticing the deposition for December 19, 2023. See Johnson Decl., Ex. 1. On December 12, 2023, Defendant objected to the Deposition Notice on the ground that the deposition date had been unilaterally selected by Plaintiff's counsel. However, as the court has previously explained to Defendant's counsel, California Code of Civil Procedure ('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 before the issuance of the Deposition Notice served no prejudice to the parties given that Defendant, in its objections, noted that it was not available on the date noticed but would appear at a mutually convenient time and place.

Defendant has persisted in raising this objection to Plaintiff's counsel's deposition notices in various cases, including the present case, despite being told the foregoing repeatedly. Moreover, and equally troubling, is the fact that in numerous cases Defendant's counsel has failed to provide alternative Calendar No.: Event ID: TENTATIVE RULINGS

3092948 CASE NUMBER: CASE TITLE: CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] 37-2023-00042716-CU-BC-NC deposition dates, which proposal would have been consistent with Defendant's counsel's obligation to engage in good faith negotiations to address the parties' discovery dispute(s). The court placed Defendant's counsel on notice of this obligation in Neuberger and Rahib and will do so again here.

Regardless, Defendant's counsel has been on notice of this obligation since, at a minimum, December 9, 2022, when Judge Bowman issued his tentative ruling in McMullen v. General Motors, LLC, Case No.

37-2022-00015729-CU-CO-NC. Indeed, this court reiterated the concept on June 9, 2023 in its Minute Order in Neuberger.

As has been the case in several previous cases, Defendant's counsel, rather than accept its role in the pending dispute, has argued in Defendant's opposition: Indeed, GM agreed-and remains willing-to produce a witness to testify about any non-privileged communications regarding Plaintiff and the Subject Vehicle, and the reasons that GM did not repurchase Plaintiff's vehicle. The parties simply need to find a mutually agreeable date and time for the deposition.

Rather than engage with GM and allow GM time to respond with available dates and times, Plaintiff rushed to file a motion to compel.

See Defendant's Opposition, p. 1, ll. 5-10.

The foregoing has formed the basis for Defendant's counsel's repeated argument that Plaintiff's counsel 'rushes' to file these motions to compel or otherwise fails to meet and confer sufficiently before bringing such a motion. However, as the court has stated repeatedly, the court fails to understand how Plaintiff's counsel 'rushed' to file the pending motion. As set forth above, the Deposition Notice was served on November 10, 2023 for a deposition to be conducted on December 19, 2023. Defendant served its objections on December 12, 2023. On February 9, 13, and 14, 2024, Plaintiff's counsel emailed Defendant's counsel seeking alternative dates for Defendant's PMK's deposition. See Johnson Decl., Ex. 2. Plaintiff's counsel also called and left voicemails for Defendant's counsel throughout February, March, and April 2024. Ibid., ¶¶ 12-18. On April 11, 2024, Plaintiff's counsel sent Defendant's counsel a formal meet and confer letter regarding Defendant's objections to the Deposition Notice, which correspondence included a renewed request that Defendant's counsel provide alternate dates for the deposition. Ibid., Ex. 3. Unlike in Neuberger and Rahib, in which the court admonished Plaintiff's counsel for not engaging in a fulsome meet and confer process, Plaintiff's counsel has demonstrated that he attempted to meet and confer with Defendant's counsel on the pending discovery dispute repeatedly. Defendant's counsel simply did not respond until May 1, 2024 – five days before Plaintiff filed and served the pending motion.

Ibid., ¶ 20. Defendant's counsel attempts to justify its conduct by noting that Plaintiff's counsel, in its various meet and confer efforts, did not address Defendant's objections or show a willingness to narrow the subject categories. But how can Plaintiff's counsel know what to discuss with Defendant's counsel if Defendant's counsel refuses to participate in the meet and confer process in any way? Defendant's counsel's position, in essence, is that the motion was not brought in good faith because Plaintiff's counsel's various correspondence did not address the discovery dispute in a manner in which Defendant's counsel found acceptable. The court finds Defendant's position unreasonable. Moreover, Plaintiff filing and serving the pending motion on May 6, 2024 – nearly six months after serving the Deposition Notice – hardly can be considered a 'rush' under the circumstances.

The foregoing conduct on Defendant's part warrants the imposition of monetary sanctions as set forth below. Plaintiff's request for issue and/or evidence sanctions is denied at this time. However, Defendant is on notice that continued discovery abuses will result in more severe sanctions. See Cal. Code Civ. P. §§ 2023.010(d) and (i), 2023.020, 2023.030(a)-(f). The court will now turn to the motion's merits.

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 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 Calendar No.: Event ID: TENTATIVE RULINGS

3092948 CASE NUMBER: CASE TITLE: CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] 37-2023-00042716-CU-BC-NC 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.

Regarding the categories set forth in the Deposition Notice, the court, notwithstanding the fact that the parties' respective separate statements address all six categories, a curious course of action employed by counsel in their previous filings in Neuberger and Rahib, accepts counsel's representations that the only categories at issue are Categories 4 and 5. As a result, and to be clear, Defendant must identify and produce a PMK on Categories 1-3 and 6 as there is no disagreement with regard to those categories.

Disputed Categories Initially, Defendant has raised a series of boilerplate objections to the subject categories, none of which are availing, a conclusion Defendant should be familiar with given the court's previous rulings in Neuberger and Rahib. First, to reiterate a legal principle this court repeatedly has articulated, to the extent contends that the subject categories are ambiguous or vague, such objection is unavailing unless the discovery request is so unintelligible that Defendant cannot reasonably respond. Defendant has made no such showing and must therefore produce its PMK as set forth below. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Super. Ct. (1961) 56 Cal. 2d 423, 428. Second, to the extent Defendant has contended that producing its PMK to testify as to certain categories 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 or 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. Third, to the extent that Defendant has asserted the attorney-client privilege, 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. Fourth, to the extent that Defendant has asserted that the requests 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 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. Fifth, Defendant fails to demonstrate how the Deposition Notice imposes more stringent requirements than the California Calendar No.: Event ID: TENTATIVE RULINGS

3092948 CASE NUMBER: CASE TITLE: CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] 37-2023-00042716-CU-BC-NC Code of Civil Procedure and/or the California Evidence Code, and the court makes no such finding.

Finally, the court finds that none of the Categories set forth in the Deposition Notice would occasion speculation or a legal conclusion on Defendant's part.

By way of Category 4, Plaintiff requests that Defendant produce for deposition its PMK regarding 'GENERAL MOTORS, LLC's policies or guidelines regarding the handling of Song-Beverly Consumer Warranty claims.' By way of Category 5, Plaintiff requests that Defendant produce for deposition its PMK regarding 'GENERAL MOTORS, LLC's policies or guidelines that ensure it is in compliance with the Song-Beverly Consumer Warranty Act.' Defendant raised a series of boilerplate objections in response to Categories 4 and 5 as set forth above. While some of these objections, particularly ones based upon alleged attorney-client and/or trade secret privileges, may warrant a limitation on how the deposition proceeds, they do not justify Defendant's blanket refusal to produce a PMK on Categories 4 and 5.

That being said, Plaintiff has proffered good cause for the inclusion of Categories 4 and 5 in the Deposition Notice, namely Defendant has asserted various affirmative defenses that require information from Defendant's PMK as identified in Categories 4 and 5. More specifically: (1) Defendant's Eighteenth Affirmative Defense asserts that 'GM maintains a qualified third-party dispute resolution process that substantially complies with California Civil Code § 1793.22'; (2) Defendant's Nineteenth Affirmative Defense asserts that '[a]t all times relevant to this action, GM acted in good faith and believes its actions to be legal'; and (3) Defendant Twenty-Second Affirmative Defense asserts that '[t]he repair process to Plaintiff's vehicle was appropriate and proper and is believed to have been done with Plaintiff's consent.' See ROA No. 9. To the extent that Defendant seeks to establish that it follows procedures it considers to be in good faith and legal, Plaintiff is entitled to explore Defendant's policies and guidelines regarding the handling of Song Beverly Consumer Warranty Claims and compliance with the Act.

Furthermore, in asserting its objections, Defendant ignores the fact that by virtue of Plaintiff's prayer, 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 Warrant Act was willful.

Manufacturers' policies 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. As a result, Categories 4 and 5 are reasonably calculated to lead to the discovery of admissible evidence in this case, and Defendant must identify and produce a PMK as to those Categories.

That being said, Defendant argues in its opposition that Categories 4 and 5 seek information on Defendant's internal policies and/or procedures 'concerning other consumers or their vehicles.' See Defendant's Opposition, p. 5, l. 21. To the extent that Defendant has policies and/or guidelines regarding the handling of Song-Beverly claims that are specific or unique to vehicles that are not the same make and model as the Subject Vehicle, Defendant need not produce a PMK regarding those specific policies and guidelines.

Accordingly, the court grants the motion to compel as to Categories 1 through 6.

Disputed Requests for Production of Documents ('RFP') Initially, the court is unclear as to the scope of the parties' dispute. Defendant represents in its opposition that it has produced all documents responsive to the RFPs. See Defendant's Opposition, p. 4, l. 19.

Plaintiff does not address this assertion in her reply directly; however, her request that Defendant produce all documents in response to all RFPs suggests that all responsive documents were not produced. The court is left in a position where it must address the propriety of RFP Nos. 1 through 4.

A party upon whom a request for production of documents has been served must respond separately to each item propounded by one of the following: (1) an agreement to comply; (2) a representation of an inability to comply; or (3) objections to all or part of the demand. See Cal. Code Civ. P. § 2031.210(a). A Calendar No.: Event ID: TENTATIVE RULINGS

3092948 CASE NUMBER: CASE TITLE: CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] 37-2023-00042716-CU-BC-NC statement of compliance must indicate that the production 'will be allowed in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.' Cal. Code Civ. P. § 2031.220. If a party agrees to comply (with all or some requests), documents must be sorted and labeled to correspond with the categories in the document demand. See Cal. Code Civ. P. § 2031.280(a). If a party responds by noting an inability to respond, the responding party must articulate that a diligent search and reasonable inquiry has been made in an effort to locate the item requested and must articulate the reason why the party cannot comply with the request as well as the names of, and contact information for, the individual(s) or entity(s) known or believed by the responding party to be in possession, custody, or control of item requested. See Cal. Code Civ. P. § 2031.230. If only part of an item or category of item is objectionable, the response must contain a statement of compliance, or a representation of an inability to comply with respect to the remainder of that item or category. See Cal. Code Civ. P. § 2031.240(a). If a responding party asserts objections, the party must identify with particularity the specific document/evidence as to which the objection is made and must set forth the specific ground for the objection. See Cal. Code Civ. P. § 2031.240(b).

In this case, there are several objections that Defendant has asserted as to both the Disputed Categories and the Disputed RFPs. However, those objections are unavailing for the reasons set forth above. Moreover, the court finds that the RFPs are reasonably calculated to lead to the discovery of admissible evidence. Indeed, as Plaintiff correctly notes, the scope of discovery is broad, and documents are relevant to the subject matter if they might reasonably assist a party in evaluating its case, preparing for trial, and/or facilitating settlement. See Gonzalez v. Sup. Ct. (1995) 33 Cal. App. 4th 1539, 1546; Cal. Code Civ. P. § 2017.010. Furthermore, to the extent Defendant objects to the RFPs on the ground that Plaintiff seeks third party documents outside of Defendant's custody, the Code requires that Defendant conduct a diligent search and reasonable inquiry to locate the requested documents, provide a reason why the documents cannot be produced, and give Plaintiff the contact information for the individual(s) and/or entity(ies) Defendant believes to be in possession, custody, or control of the requested items.

Finally, to the extent any of the 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 RFPs.

Accordingly, the court grants the motion as to RFP Nos. 1 through 4.

Plaintiff's Sanctions Request The court must impose monetary sanctions '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.' Cal. Code Civ. P. § 2025.450(g)(1). Monetary sanctions are also appropriate for misuses of the discovery process including, but not limited to: (1) failing to respond or to submit to an authorized method of discovery; (2) making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and (3) failing to confer in a reasonable and good faith attempt to informally resolve a discovery dispute. See Cal. Code Civ. P. §§ 2023.010(d), (h)-(i), 2023.030(a). The party opposing sanctions bears the burden of proving that he or she acted with substantial justification in failing to comply with a discovery request. See Doe v. U.S. Swimming, Inc.

(2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, the court, for the above reasons, finds that Defendant has not demonstrated that it was substantially justified in objecting to the Deposition Notice, opposing the pending motion, and failing to engage in the meet and confer process. Consequently, the court finds that monetary sanctions are warranted under the totality of the facts and circumstances.

In light of the foregoing, the court: (1) grants Plaintiff's motion to compel Defendant to designate and Calendar No.: Event ID: TENTATIVE RULINGS

3092948 CASE NUMBER: CASE TITLE: CARDONA VS. GENERAL MOTORS, LLC. [IMAGED] 37-2023-00042716-CU-BC-NC produce its PMK and produce responsive documents, and (2) awards Plaintiff sanctions against Defendant and Defendant's counsel, jointly and severally, in the reduced amount of $3,500.00, due and payable to Plaintiff within thirty (30) days of this hearing. Defendant shall attend the hearing prepared with at least three dates within the next thirty (30) days for the 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. This court will not, unlike prior hearings, allow Defendant's counsel additional time after the hearing to coordinate with its client to identify an acceptable deposition date.

Defendant should know by now to come with dates.

Calendar No.: Event ID: TENTATIVE RULINGS

3092948