Judge: David B. Gelfound, Case: 23CHCV03879, Date: 2024-07-17 Tentative Ruling

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Case Number: 23CHCV03879    Hearing Date: July 17, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL DEPOSITION ATTENDANCE AND PRODUCTION OF DOCUMENTS BY DEFENDANT GENERAL MOTORS, LLC’S PERSON MOST QUALIFIED; AND REQUEST FOR SANCTIONS

Motion filed: 4/11/24

MOVING PARTY: Plaintiff Scott Goldstein (“Plaintiff” or “Goldstein”)

RESPONDING PARTY: Defendant General Motors, LLC (“Defendant” or “GM”)

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to compel the attendance of Defendant GM’s Person Most Qualified (“PMQ”) with the production of documents. Plaintiff also requests the Court to impose monetary sanctions against GM in the amount of $2,970.00.

TENTATIVE RULING: The motion is GRANTED. The Request for Monetary Sanctions is GRANTED IN PART.

BACKGROUND

Plaintiff filed this Song-Beverly Consumer Warranty Act lawsuit over alleged defects in his 2022 Chevrolet Bolt (the “Subject Vehicle”), which was manufactured by Defendant GM. Plaintiff purchased the Subject Vehicle in new condition on or about July 10, 2021, with GM’s express warranty. (Compl. ¶¶ 4 - 8.)

On December 21, 2023, Plaintiff initiated the action against GM and Does 1 through 10. The Complaint alleges a cause of action for Violation of the Song-Beverly Consumer Warranty Act. Subsequently, GM filed its Answer to the Complaint on January 29, 2024.

On April 11, 2024, Plaintiff filed the instant Motion to Compel Deposition Attendance and Production of Documents by GM’s PMQ (the “Motion”). Subsequently, on July 2, 2024, GM filed its Opposition to the Motion, and Plaintiff replied on July 11, 2024.

ANALYSIS

To compel the deposition of a party to an action or its officer, director, managing agent, or employee, the deposing party need only serve a notice in compliance with Code of Civil Procedure section 2025.240. (Code Civ. Proc., § 2025.280, subd. (a).) Nothing further is needed. If, after service of the deposition notice, the deponent fails to appear “without having served a valid objection under Section 2025.410 . . .” the deposing party may move for an order compelling the deponent’s attendance and testimony. (Id., § 2025.450, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

"Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.¿(Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

Here, Plaintiff served his first deposition notice for the deposition of GM’s PMQ with production of documents on January 17, 2024, for a deposition date of February 9, 2024. (Kaufman Decl., ¶ 5, Ex. “1.”) On February 2, 2024, GM served its written objection to the first deposition notice. (Id. ¶ 6, Ex. “2.”) Following this, Plaintiff’s counsel attempted to meet and confer with GM, via phone call and email to discuss the deposition. However, GM failed to respond to Plaintiff’s communications. (Id. ¶ 7, Ex. “3.”)

On February 6, 2024, Plaintiff served his First Amended Notice of Deposition, for a deposition date of February 27, 2024. (Id. ¶ 8, Ex. “4.”) In response, GM served its objections to the First Amended Notice of Deposition on February 20, 2024. (Id. ¶ 9, Ex. “5.”) Plaintiff made another attempt to call and email GM to meet and confer; however, GM did not respond. (Id. ¶ 10, Ex. “6.”)

Subsequently, Plaintiff served on GM his Second Amended Notice of Deposition for a deposition date of March 18, 2024, to which GM served its objections on March 12, 2024. (Id. ¶¶ 11-12.) Another meet and confer effort was made by Plaintiff to call and send written correspondences to GM on March 14, 2024. Despite these efforts, Plaintiff has not received responses from GM. (Id. ¶ 13.)

Based on the above records, the Court concludes that Plaintiff has made good faith attempts to reschedule and resolve issues raised in the instant Motion.

2.      Separate Statement

The California Rules of Court rule 3.1345 (a)(5) explicitly states that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: ... (5) To compel or to quash the production of documents or tangible things at a deposition[.]”

Here, Plaintiffs have fulfilled the requirement by concurrently filing a separate statement with the Motion.

B.     Motion to Compel Deposition of GM’s PMQ

Code of Civil Procedure section 2025.280 subdivision (a) provides that service of a deposition notice “is effective to require any deponent who is a party to the action [] to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

An objection under Code of Civil Procedure section 2025.410 is one that is written, made “at least three calendar days prior to the date for which the deposition is scheduled,” and pertains to an “error or irregularity” with the notice itself. (Code Civ. Proc., § 2025.410, subd. (a).) The procedure for a deponent who seeks to narrow the scope of a discovery request is to move for a protective order. (Id., § 2025.420, subd. (a).)

Objections do not stay the taking of the deposition. To do so, the objecting party should move to quash the deposition notice and stay the taking of the deposition. (See Code Civ. Proc., § 2025.410 (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. The 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.”])

Here, GM’s objections were not related to the “error or irregularity” in the deposition notice itself. Additionally, GM has not filed a motion for staying the taking of the deposition or quashing the deposition notice.

Accordingly, Plaintiff is entitled to the deposition of GM’s PMQ upon serving GM the Second Amended Deposition Notice.

Therefore, the Court GRANTS the Motion. The Court will further examine the objections raised by GM below.

1)      GM’s Objections¿to Matters of Examination

Despite making objections to each of the seven categories of subject matter (“Matter”) on which the PMQ was to be examined, GM essentially only refused to produce a witness as to Category No. 5. (Pl.’s Separate Statement, at p. 11.) GM has responded to other Matters with the statement that “GM will produce a witness at mutually agreeable time and place to discuss the relevant and nonprivileged aspects[.]” (See generally, Def’s Separate Statement).

Matter No. 5 concerns “Questions relating to YOUR policies and procedures for complying with the lemon law.” (Pl.’s Separate Statement, at p. 10.)

In its Opposition, GM argues that “[t]estimony about policies and procedures are irrelevant to Plaintiff’s claim that GM failed to repair his Bolt within a reasonable number of attempts.” (Opp’n. at p. 6.)

            In response, Plaintiff contends that evidence of a car company’s “‘corporate policies and practices regarding reacquisition of vehicles’ pursuant to the lemon law is appropriate evidence for the jury to consider when evaluating damages in a lemon law case,” citing Johnson v. Ford Motor Company (2005) 35 Cal.4th 1191, 1198.

            The Court agrees that such information is relevant to claims for violation of the Song-Beverly Act and is within the Court’s customary scope of permissible document production in the party’s respective possession. As summarized by a federal district court decision (Ramos v. FCA US, LLC (E.D. Cal. 2019) 385 F.Supp.3d 1071-1072), factors the trier of fact may consider as bearing on a defendant’s willfulness include, among other evidence, whether the manufacturer had a written policy on the statutory requirement to repair or replace the vehicle. (See also Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.)

            Accordingly, the Court OVERRULES GM’s relevance objection to Matter No. 5 in Plaintiff’s Second Amended Notice of Deposition.

2)      GM’s Objections to Production of Documents

Plaintiff’s Second Amended Notice of Deposition seeks ten items to be produced by GM:

1.      WRITINGS which refer to, evidence or reflect service or repairs performed on the

SUBJECT VEHICLE at any time, including, but not limited to, the warranty repair

history, service request documents, work orders, repair orders, labor receipts, parts order forms, computer printouts, parts receipts and billing statements.

2.      Any and all correspondence with any person, entity or organization other than YOUR

attorney relating or referring in any way to Plaintiff or the SUBJECT VEHICLE.

3.      Your California lemon law policy and procedure manual(s) used by your dealers or

authorized customer service representatives.

4.      YOUR Customer Relations file regarding Plaintiff or the SUBJECT VEHICLE.

5.      WRITINGS provided to YOUR Customer Relations representatives, which refer, reflect or relate to rules, policies or procedures concerning the issuance of vehicle purchase refunds or replacements pursuant to the California Song-Beverly Consumer Warranty Act.

6.      YOUR Technical Service Bulletin Index, and any TSB’s that relate to the WARRANTY NONCONFORMITY(S) alleged in this case.

7.      Any recalls that apply to the SUBJECT VEHICLE.

8.      WRITINGS that YOU reviewed in determining not to repurchase or replace the SUBJECT VEHICLE prior to the date Plaintiff’s lawsuit was filed.

9.      YOUR lemon law policy and procedure manual.

10.   A copy of any photographs or videos of the SUBJECT VEHICLE.

a)      Request Nos. 1-2, 4, and 6-8

With regard to Request Nos. 1-2, 4, and 6-8, GM claims that it has already produced responsive documents in its possession, custody, and control, including any purchase or lease contract that GM may have obtained from the dealership who sold or leased the Subject Vehicle to Plaintiff; any repair orders that GM may have obtained from GM-authorized dealerships; the Global Warranty History Report; any Service Request Activity Report(s); and lists of TSBs and recalls issued subject to the Subject Vehicle. (Def.’s Separate Statement, at p. l6.)

In response, Plaintiff argues that he is entitled to documents that are reasonably calculated to lead to the discovery of admissible evidence about the issues in this case. (Pl.’s Separate Statement, at pp. 16, 18, 21, and 26.)

The Court agrees with Plaintiff’s argument that these request numbers are relevant. However, it finds that Plaintiff’s argument does not effectively address why supplemental responses must be produced by not directly responding to GM’s assertion that responsive documents have already been produced. It is insufficient to merely claim that “the list GM may or may not have produced months ago likely lacks some of the TSBs or recalls that may now exist.” (Pl.’s Separate Statement. at pp. 24 and 25.)

            Consequently, the Court finds GM’s responses to Request Nos. 1-2, 4, and 6-8 to be sufficient.

b)      Request Nos. 3, 5, and 9

            With regard to Request Nos. 3, 5, and 9, GM contends that these requests seek GM’s policies and procedures for generally handling customer’s complaints and repurchases, thus go far beyond what is relevant and discoverable in Plaintiff’s individual breach of warranty matter. (Def.’s Separate Statement, at p. l6.) Furthermore, GM objects to the request on the grounds that they seek confidential, proprietary, or trade secret information, and information protected by the attorney-client privilege or work product doctrine. (Id. at pp. 18, 20, and 23.) Moreover, GM posits that materials responsive to Request Nos. 3, 5, and 9 should not be ordered to produce without an appropriate protective order. (Id. at p. 16.)

            Given that the Court has previously concluded that GM’s policies and procedures are relevant to this action and permissible for document production, it finds GM’s objection based on irrelevance lacks merits.

Moreover, Plaintiff states that he had offered to execute a protective order for GM’s document protection in its February 5, 2024 meet and confer letter. (Kaufman Decl. ¶ 7, Ex. (3.)) Absent evidence to the contrary, the Court finds that GM ignored Plaintiff’s proposal, rendering its argument unconvincing.

Therefore, the Court OVERRULES GM’s objections to Request Nos. 3, 5, and 9. The parties may execute a stipulation on a protective order and submit it for the Court’s approval.

c)       Request No. 10

GM’s responses state that it is unaware at this time of any photographs or videos responsive to this Request. (Def.’s Separate Statement, at p. 23.)

The Court finds GM’s response to be sufficient.

C.    Monetary Sanctions

If a motion to compel a party deponent to appear for a deposition is granted, the court must impose a monetary sanction "in favor of the party who noticed the deposition and against the deponent . . . 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." (Code Civ Proc., § 2025.450, subd. (g)(1).)

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work in preparing the Motion is $1187.50, calculated at a reasonable hourly rate of $475.00 for 2.5 hours reasonably spent.

CONCLUSION

The Court GRANTS Plaintiff’s Motion to Compel Deposition Attendance and Production of Documents by General Motors, LLC’s Person Most Qualified, consistent with the findings above.

Plaintiff’s Request for Monetary Sanctions is GRANTED IN PART.

General Motors, LLC and its attorney(s) of record are ordered to jointly and severally pay $1187.50 to Plaintiff’s Counsel.

Moving party to give notice.