Judge: Edward B. Moreton, Jr., Case: 23SMCV03671, Date: 2024-04-09 Tentative Ruling

Case Number: 23SMCV03671    Hearing Date: April 9, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

               This case arises from a dispute over an allegedly defective 2020 GMC Sierra Denali.  On September 24, 2020, Plaintiff William Keating, Jr. (“Plaintiff”) purchased a new 2020 GMC Sierra Denali that Defendant General Motors, LLC (“Defendant”) manufactured. (Compl. ¶¶ 4-7.) It is further alleged that the sale of the subject vehicle was accompanied by express and implied warranties. (Id. at ¶ 8-9.) However, during the warranty period, the subject vehicle exhibited certain nonconformities to warranty relating to “electrical, infotainment screen, transmission, camshaft position sensor, intermittent no start, and other defects.” (Id. at ¶ 10.) Because of these defects, Plaintiff presented the subject vehicle to Defendant’s authorized service and repair facility, but the aforementioned defects persisted. (Id. at ¶¶ 11-12.)  Defendant has failed to repurchase the subject vehicle and pay restitution. (Id. at ¶¶ 14-15.)

The operative complaint asserts a single claim for violation of the Song-Beverly Act.   

This hearing is on Plaintiff’s motion to compel the deposition of Defendant’s person most qualified (“PMQ”) with production of documents and request for monetary sanctions in the amount of $3,000.  Plaintiff argues good cause exists to compel the deposition.  

EVIDENTIARY OBJECTIONS

Plaintiff objects to various portions of the Declaration of Cameron Major. The Court rules as follows: (1) Objection Nos. 1-7 are overruled; (2) Objection Nos. 8-10, 15 are sustained on the ground of improper argument; (3) Objection Nos. 11-14 is sustained due to lack of personal knowledge.

LEGAL STANDARD

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.  The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”  (Code Civ. Proc. § 2025.010.)

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. (Code Civ. Proc., § 2025.230.) 

Code of Civil Procedure §¿2025.450(a) provides:¿“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 proceed with it, 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.”¿ 

Code of Civil Procedure §¿2025.450(b) provides:¿“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.”¿ 

Code of Civil Procedure §¿2025.450(c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . 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.”¿ 

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DISCUSSION

Meet and Confer

Code of Civil Procedure § 2025.450 requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040.  (Code Civ. Proc. § 2025.450.)  Code of Civil Procedure § 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc. § 2016.040.)  “[W]hen 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.”  (Code Civ. Proc. § 2025.450(b)(2).)

Here, on September 11, 2023, Plaintiff served his notice of deposition for Defendant’s PMQ to take place on October 11, 2023. (Hunt Decl. ¶ 6, Exh. A.) Based on Defendant’s objections, Plaintiff attempted to meet and confer and offered to withdraw certain categories and requests made in the initial notice, but Defendant did not respond. (Hunt Decl. ¶¶ 7-8, Exhs. B-C.) Thereafter, Plaintiff sent two subsequent amended notices for the deposition of Defendant’s PMQ on October 12, 2023 and November 13, 2023, respectively.  The attempts to meet and confer were largely unproductive. (Hunt Decl. ¶¶ 9-21, Exhs. D-L.)  On January 31, 2024, the parties attended an informal discovery conference where, among other things, Defendant agreed to provide a deposition date by the end of February. (See January 31, 2024 Minute Order.) However, by March 4, 2024, Defendant had yet to select a deposition date for its PMQ. (Hunt Decl. ¶¶26-28, Exhs. Q-R.)

            Based on the protracted yet futile meet and confer attempts as well as the parties’ attendance at the informal discovery conference, the Court finds that Plaintiff has sufficiently complied with the meet and confer requirement under Code of Civil Procedure § 2025.450.

Good Cause

Here, pursuant to the Second Amended Deposition Notice, Plaintiff seeks to depose Defendant’s PMQ in connection with the following categories: (1) Why GM did not repurchase or replace the vehicle before this action was filed; (2) The service and warranty history; (3) Communications between GM and Plaintiff; (4) Communications between GM and anyone else about the vehicle; (5) GM’s investigation into whether or not the vehicle qualified for repurchase before this action was filed; and (6) Warranty nonconformities in the vehicle. (Motion at pg. 5; Separate Statement at pp. 2-15.)

Additionally, Plaintiff seeks the production of the following documents: (1) Documents showing the repairs to the vehicle; (2) Documents evidencing correspondence relating to Plaintiff or the vehicle, excluding attorney-client communication; (3) Copies of GM’s California lemon law policy and procedure manual used by GM’s dealers and customer service representatives; (4) GM’s customer service file pertaining to Plaintiff or the vehicle; (5) Writings provided to GM’s customer service representatives that reflect or relate to rules, policies and procedures concerning the issuance of refunds pursuant to California’s Song-Beverly Act; (6) Copies of the technical service bulletins that apply to the vehicle; (7) Copies of recall notices that apply to the vehicle; (8) Copies of the documents GM reviewed when it decided pre-litigation not to repurchase the vehicle pursuant to the lemon law; (9) GM’s lemon law policy and procedure manual; and (10) Copies of any photographs or videos GM has of the vehicle. (Motion at pg. 6; Separate Statement at pp. 16-31.)

Plaintiff contends that the requested testimony and documents are universally discoverable in lemon law cases and that there is nothing inherently objectionable about these requests. (Motion at pg. 6.) Furthermore, Plaintiff argues that the deposition of Defendant’s PMQ is fundamental to his claim because it is alleged in the complaint that Defendant knew that the subject vehicle was defective and needed to have been bought back. (Id. at pp. 8-9.) Thus, Plaintiff asserts that the deposition testimony is necessary to establish the essential elements of Plaintiff’s express and implied warranty and damage claims. (Motion at pg. 11.)

In opposition, Defendant suggests that Plaintiff has sufficient documentary evidence needed to support his claims, and that it is unnecessary to depose its PMQ.  Defendant further contends that it has agreed to produce its PMQ for deposition on April 23, 2024 to testify on Categories 1-6. (Opposition at pp. 4, 8.) In terms of the documents sought, Defendant argues that Plaintiff fails to articulate how the requested testimony or documents are essential to his claims when breach of warranty claims are unique to the consumer and his vehicle. (Opposition at pg. 6.) Thus, any information about other consumers or their vehicles are irrelevant and overbroad. (Ibid.) For this reason, Defendant argues that the Court should limit the scope of discovery. (Id. at pg. 7.) Lastly, Defendant claims that Plaintiff’s requests impermissibly seeks the production of trade secret material. (Id. at pg. 7.)

In consideration of the parties’ arguments, the Court finds that there is good cause to grant the motion in full. First, Defendant improperly seeks to limit the scope of Plaintiff’s discovery by preventing him from deposing Defendant’s PMQ. In the absence of a contrary court order, a civil litigant’s right to discovery is broad.  “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action     . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ. Proc., § 2017.010; Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) The Court declines to find that Plaintiff’s desire to depose Defendant’s PMQ as amounting to an abuse of discovery.

Second, while Defendant claims that a PMQ will be produced for deposition on April 23, 2024, there is nothing beholding Defendant to do so without a court order. After all, despite informally agreeing to provide the deposition date for its PMQ by the end of February 2024, Defendant only did so after Plaintiff had filed the instant motion.

Third, information regarding other similar vehicles is relevant to claims brought under the Song-Beverly Act. California Courts of Appeal have implicitly authorized the discovery of information about other, similar vehicles. (See Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 154.) Fourth, as to Defendant’s concern that Plaintiff improperly seeks trade secret documents, this argument is unavailing because any such documents would be covered by the protective order that the parties entered into on February 6, 2024.

Accordingly, the Court finds that there is good cause to compel the deposition of Defendant’s PMQ.

Sanctions

            Plaintiff seeks sanctions of $3,000 against Defendant and Defendant’s counsel of record to compensate Plaintiff for the attorney fees and costs in bringing the instant motion.  Plaintiff’s Counsel claims that eight hours at a rate of $375/hour were and will be spent meeting and conferring, preparing the instant motion, reviewing Defendant’s opposition, preparing a reply, and appearing at the hearing.  (Hunt Decl. ¶ 35.) 

If a motion to compel deposition “is granted, the court shall impose a monetary sanction  . . . 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.”  (Code of Civil Procedure § 2025.450(c).)  Thus, sanctions are mandatory unless circumstances make the imposition of sanctions unjust.

            Because the instant motion has been granted, sanctions are mandatory, and given Defendant failed to promptly provide a deposition date, the imposition of sanctions would not be unjust. Based on the totality of the circumstances, the Court finds that $3,000 reasonably compensates Plaintiff for the attorney’s fees incurred in bringing this motion. 

Accordingly, the request for sanctions is granted. Defendant and its counsel of record, Erskine Law Group, PC, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $3,000 to Plaintiff by and through counsel, within thirty (30) days of notice of this order.   

CONCLUSION

            Based on the forgoing, Plaintiff’s motion to compel the deposition of Defendant General Motors LLC’s Person Most Knowledgeable is GRANTED.  Defendant’s PMQ is ordered to appear for deposition and to produce the requested documents, within thirty (30) days of notice of this order at a date and time noticed by Plaintiff. 

Defendant and its counsel of record, Erskine Law Group, PC, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $3,000 to Plaintiff by and through counsel, within thirty (30) days of notice of this order.   

DATED: April 9, 2024                                                           ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court