Judge David A. Rosen, Case 22AHCV00166 2023-02-10 Tentative Ruling

Judge: David A. Rosen, Case: 22AHCV00166, Date: 2023-02-10 Tentative Ruling

Case Number: 22AHCV00166 Hearing Date: February 10, 2023 Dept: E

Hearing Date: 02/10/2023 – 10:00am

Case No: 22AHCV00166

Trial Date: 06/26/2023

Case Name: AMELIA LOPEZ v. GENERAL MOTORS LLC

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION OF DEFENDANT’S PMQ

Moving Party: Plaintiff, Amelia Lopez

Responding Party: Defendant, General Motors LLC

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok

Opposition and Reply Submitted

Moving Papers: Motion; Vanessa J. Oliva Declaration; Proposed Order

Opposition Papers: Memo; Cameron Major Declaration

Reply Papers: Reply

RELIEF REQUESTED
Plaintiff moves to compel Defendant to designate and produce for deposition, its Person(s) Most Qualified (PMQ) on all categories identified in Plaintiff’s Amended Notice of Deposition of the Person Most Qualified for General Motors, LLC and Demand to Produce Documents at Deposition (Deposition Notice) and directing Defendant to comply within 10 calendar days.

Plaintiff moves under CCP §§2025.450 and 2025.480 on the grounds that Defendant has refused to engage Plaintiff in their meet and confer efforts regarding the production of a PMQ witness in this matter.

BACKGROUND
This complaint arises out of Plaintiff’s purchase on or about October 12, 2019, of a 2019 Chevrolet Colorado. Plaintiff alleges that during the warranty period, the subject vehicle contained or developed defects, including but not limited to a defective ignition system, defective engine system, defective body system, and any additional complaints made by Plaintiff where or not they are contained in the records or any repair orders. Plaintiff alleges five causes of action: (1) Violation of Civil Code §1793.2(d), (2) Violation of Civil Code §1793.2(b), Violation of Civil Code §1793.2(a)(3), Breach of Express Written Warranty Civil Code §1791.2(a) and §1794, and (5) Breach of Implied Warranty of Merchantability §1791.1 and §1794.

On May 9, 2022, Plaintiff served a Notice of Deposition of GM’s PMQ With Production of Documents (the “Notice of Deposition”), unilaterally scheduling the deposition for May 25, 2022. On May 18, 2022, Defendant served 11 general objections to the deposition notice, objections to all 19 categories on which the deponent is to be examined, and 35 objections to the 35 items requested to be produced. [Opposition states that in its response it agreed to produce a PMQ for deposition categories 1-4, 7, and 10 at a mutually agreeable time and place.]

On August 10, 2022, Plaintiff emailed Defense counsel requesting dates from Defendant for the PMQ deposition. Plaintiff also followed up on August 24, 2022, and September 1, 2022 on the request for deposition dates.

On October 3, 2022, Plaintiff served an Amended Notice of Deposition of GM’s PMQ, unilaterally scheduling the deposition for October 18, 2022. On October 11, 2022, Defendant served 11 general objections to the deposition notice, objections to all 19 categories on which the deponent is to be examined, and 35 objections to the 35 items requested to be produced. [Opposition states that in its response it agreed to produce a PMQ for deposition category numbers 1-4, 7, and 10 at a mutually agreeable time and place.]

On October 12, Plaintiff provided Defendant one last opportunity to provide Plaintiff with alternative dates for this deposition to proceed on a mutually agreeable date in order to avoid taking a certificate of non-appearance. On October 18, 2022, the reporter took a certificate of nonappearance. On October 20, 2022, Plaintiff emailed Defendant informing Defendant that a certificate of non-appearance was taken for failure to appear, and Plaintiff asked for alternative dates be provided no later than October 26, 2022, or else Plaintiff would have to file a motion to compel the deposition.

LEGAL STANDARD – MOTION TO COMPEL DEPOSITION

C.C.P. §2025.450(a) provides, as follows: “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, 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.”

C.C.P. §2025.450(b) provides, in pertinent part, as follows:

(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.

ANALYSIS
Defendant argues that this motion should be denied for several reasons.

Separate Statement

Defendant’s argument that a separate statement should have been filed is unavailing. California Rules of Court Rule 3.1345(a) states when a separate statement is required. Defendant argues a separate statement should have been filed based on CRC 3.1345(a)(4) and (a)(5). Both of those rules are not applicable here. CRC 3.1345(a)(4) applies “To compel answers at a deposition.” Here, a deposition has not taken place and answers to deposition questions are not being sought. Further, CRC 3.1345(a)(5) is not applicable because it applies “To compel or to quash the production of documents or tangible things at a deposition.” Here, as noted in the Reply, Plaintiff states it does not seek documents in this motion listed within the deposition notice because Defendant’s failure to produce documents in this matter was the subject of Plaintiff’s motion to compel further responses to requests for production, set one.

Meet and Confer
Defendant argues that Plaintiff failed to meet and confer under 2025.450 and 2025.480. Defendant argues that Plaintiff made no attempt to address GM’s objections or narrow the scope, and Plaintiff simply requested further dates.

Defendant’s argument is misplaced for several reasons.

C.C.P. §2025.450(b)(2) provides, in pertinent part, as follows:

“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.” (Ibid.)

As indicated by the word “or” in 2025.450(b)(2), a meet and confer is not necessary. Here, deponent failed to attend the deposition and moving party submitted a declaration stating it took a certificate of nonappearance (Ex. 7.) and made one last request for dates to which Defendant refused to respond (Ex. 4.) While Plaintiff’s declaration doesn’t technically state that it contacted the deponent about the nonappearance, Plaintiff did in fact reference and attach emails from Exhibit 4 which contains an email wherein Plaintiff informed Defendant that it took a certificate of non-appearance for Defendant failing to appear for the deposition. Therefore, Plaintiff sufficiently complied with 2025.450(b)(2).

Further, Defendant’s citation to 2025.480 is inapplicable here because it pertains to when a deponent fails to answer questions at a deposition.

Miscellaneous
Defendant cites CCP §2031.310(b)(1) to argue that Plaintiff has an obligation to articulate specific facts demonstrating good cause for the discovery sought. However, this argument is unavailing because 2031.310(b)(1) is not applicable to a motion to compel a deposition. CCP §2031.310(b)(1) pertains to compelling further responses to inspection demands. The instant motion is not a motion to compel further responses to inspection demands.

Defendant argues that many of the categories Defendant is to be deposed on is irrelevant to the instant case and overly broad. The Court does not find Defendant’s general objections to the deposition and the objections to the deposition categories valid. Defendant’s objections are too vague. “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.” (CCP §2025.230.) Here, the deposition notice described the categories on which examination is requested with reasonable particularity.

TENTATIVE RULING
Plaintiff’s motion to compel is GRANTED.

Defendant’s objections are overruled. Defendant is to produce a person or persons most qualified to be deposed on matters in which examination is requested within 20 days, and both parties are ordered to meet and confer forthwith; in person, by telephone, or videoconference, on those matters on which examination is sought.

The Court awards no sanctions at this time, as it would be unjust to do so, in part because the moving party did not request sanctions. CCP §2025.450(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.