Judge: Elaine Lu, Case: 21STCV03715, Date: 2023-03-06 Tentative Ruling
Case Number: 21STCV03715 Hearing Date: March 6, 2023 Dept: 26
|
SUSAN HOPKINS,
and JASON HOPKINS, Plaintiffs, vs. general motors, llc; et al., Defendants. |
Case No.: 21STCV03715 Hearing Date: March 6, 2023 [TENTATIVE] order RE: plaintiffs’ motion to compel the
deposition of defendant’s person most knowledgeable |
Procedural
Background
On January
29, 2021, Plaintiffs Susan Hopkins and Jason Hopkins (jointly “Plaintiffs”) filed
the instant action against Defendant General Motors, LLC (“Defendant”) arising
out of the purchase of a Certified Pre-Owned 2013 Chevrolet Cruze. On August 18, 2021, Plaintiffs filed the
operative First Amended Complaint (“FAC”) against Defendant. The FAC asserts six causes of action for (1) Violation of Civil Code § 1793.2(d); (2)
Violation of Civil Code § 1793.2(b); (3) Violation of Civil Code §
1793.2(a)(3); (4) Breach of Express Written Warranty; (5) Breach of the Implied
Warranty of Merchantability, and (6) Fraud by Omission.
On February 7, 2023, Plaintiffs filed the instant motion
to compel the deposition of Defendant’s Person Most Knowledgeable (“PMK”). On February 21, 2023, Defendant filed an
opposition. No reply was filed.
Allegations of the Operative Complaint
The
FAC alleges:
On January 24,
2016 Plaintiffs purchased a 2013 Chevrolet Cruze (“Subject Vehicle”) that was
manufactured and/or distributed by Defendant.
(FAC ¶ 6.) However, the Subject Vehicle
had a defect in the engine cooling system (“Cooling System Defect”). (FAC ¶ 30.) As a result of the Cooling System
Defect, the Subject Vehicle has experienced issues with large oil leaks, a
rough idle when the A/C is on, metal in the transmission fluid, fluid leaks,
and corrosion in the ignition coil assembly.
(FAC ¶¶ 36-44.) Due to recalls,
internal pre and post production testing, and consumer complaints, Defendant
had superior and exclusive knowledge of the Cooling System Defect. (FAC ¶¶ 13-30.) However, Defendant failed to disclose the Cooling
System Defect to Plaintiffs at the time of sale. (FAC ¶ 18.)
Had Defendant disclosed the Cooling System Defect prior to the sale of
the Subject Vehicle, Plaintiffs would not have purchased the Subject
Vehicle. (FAC ¶ 89.)
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.” (CCP § 2025.010.)
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:
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.”
Under Code of Civil Procedure §
2023.030(a), “[t]he court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney advising that
conduct, or both pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. . . . If a monetary sanction
is authorized by any provision of this title, the court shall impose that
sanction unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.” Failing to respond or to submit to
an authorized method of discovery is a misuse of the discovery process.
(CCP § 2023.010(d).)
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. (CCP §
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.” (CCP § 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.” (CCP § 2025.450(b)(2).)
On September 30,
2021, Plaintiff noticed the deposition of Defendant’s PMK with production of
documents unilaterally set for October 28, 2021. (Neubauer Decl. ¶ 22, Exh. 7.) On December 5, 2022, Plaintiff served the
first amended noticed the deposition of Defendant’s PMK with production of
documents unilaterally set for January 6, 2023.
(Neubauer Decl. ¶ 23, Exh. 8.) Plaintiff
also included a letter asking Defendant to provide alternative dates if the January
6, 2023 deposition date did not work.
(Neubauer Decl. ¶ 38, Exh. 10.) On
December 27, 2023, Defendant served objections to the first amended notice of
deposition of Defendant’s PMK. (Neubauer
Decl. ¶ 24, Exh. 9.) On January 5, 2023,
Plaintiffs sent a meet and confer letter and a follow up email on February 3,
2023. (Neubauer Decl. ¶¶ 40-41, Exh. 11.) Defendant in response noted that “it did not ‘make
sense to expend the resources to have the PMK deposition go forward when we
have a dispositive motion pending’ and making it clear that GM would be ‘happy
to revisit the issue of the PMK depo once the court issues its ruling.’” (Neubauer Decl. ¶ 11.) None of these emails addressed any of the
objections raised by Defendant nor did Plaintiff inquire as to why Defendant’s
PMK not appear as required for the meet and confer effort to be
sufficient. (CCP § 2025.450(b)(2).) At most, Plaintiff only contact Defendant about
setting future deposition dates. This is
not a sufficient meet and confer effort.
Discussion
In the response to the amended
deposition notice, Defendant provides general objections based on the grounds
that (1) the deposition was unilaterally set, (2) the categories of topics are
overbroad, (3) the deposition notice seeks information protected by attorney
client privilege and/or work product doctrine, (4) the documents request are
not described with reasonable particularity, (5) the documents requested are
overbroad, and (6) some of the documents requested are equally available to
Plaintiff. (Neubauer Decl., Exh. 10.) Most of these objections are inapplicable.
Objections to a notice of the deposition are
very limited and may only pertain to errors or irregularities in the deposition
notice itself. (CCP § 2025.410, [“Any
party served with a deposition notice that does not comply with Article 2
(commencing with Section 2025.210) waives any error or irregularity unless
that party promptly serves a written objection specifying that error or
irregularity at least three calendar days prior to the date for which the
deposition is scheduled, on the party seeking to take the deposition and any
other attorney or party on whom the deposition notice was served.].) Article 2 which consists of Code of Civil
Procedure §§ 2025.210-2025.295 provide specific requirements that a deposition
notice must satisfy.
Most of Defendant’s objections are
improper as they are not objections based on the irregularity of the
notice. The unilateral setting of a
deposition under Los Angeles County Superior Court Rule, Local Rule 3.26 is
also not a basis for an objection to the notice as all local rules are
preempted as to discovery. (Cal. Rules
of Court, Rule 3.20(a).)[1] However, an objection as to the specificity
of the categories for the person most knowledgeable under Code of Civil
Procedure section 2025.230 could be a valid objection to the notice.
Code of Civil Procedure section 2025.230
provides, in relevant part, that “[i]f 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.)
This
section does not provide what subjects can be discussed at the deposition. Rather, this section notes merely that the
categories are to help determine who is the responding party’s person’s most
knowledgeable or if such person exists.
Here, each of the designated categories is clear as to the matters on
which the examination is requested.
For example, Category 2 states that it
seeks the person most knowledgeable on “[q]uestions relating to the applicable
warranties provided by YOU covering the SUBJECT VEHICLE.” (Neubauer Decl., Exh. 10.) This clearly
indicates that Plaintiffs wishe to discuss the warranty claims regarding the
Subject Vehicle. Thus, Defendant would
be able to determine if any person most qualified to respond to these requests
exists and if so, who. To the extent
that Defendant contends that no such person exists, this is immaterial as a
basis for objection to the notice as Plaintiffs have described with reasonable
particularity the matter on which the examination is requested. (CCP §2025.230.)
Nor is it necessary for Defendant to
object or refuse to produce based on a non-existence of the requested
information. This is because Defendant
is only required to “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 [entity].” (CCP § 2025.230, [italics added].) Thus, should the requested information not
exist, then Defendant should designate a person most knowledgeable to testify
to that extent.
As to the other objections based on
relevance, attorney client privilege, trade secret, etc. these objections are
improper as the categories in the notice are not deposition questions. The categories in the notice of the
deposition are solely for purposes of identifying person(s) most knowledgeable
on those issue. (See CCP §
2025.230.) Rather, these objections
should be only raised to specific objectionable questions during the deposition
not the notice of the deposition.
To the extent that Defendant wishes
to limit the scope of the examination be limited to certain matters or that
certain matters not be discussed a protective order is required. (CCP § 2025.420(b)(9-10).) However, such an order can only be entered by
noticed motion or by stipulation of the parties. (See e.g., St. Paul Fire & Marine Ins.
Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85-86.) As a practical matter, however, such motion
is unnecessary as to designated categories as objections can be made at the
deposition to specific questions rather than to broad categories under which
some questions may be proper while others may be improper and invade privileged
information.
As to the objections to the document
production, objections are unnecessary and inapplicable to the notice. A request for production of documents in a
deposition notice merely provides that documents identified are to be produced
by the deponent at the deposition. (CCP
§ 2025.220(a)(4).) Thus, a request for
documents in conjunction with a deposition notice is not the equivalent of a
Request for production of documents under Code of Civil Procedure section
2031.010 et seq. as objections are not necessary as an objection to the
notice. In fact, there is no statutory
basis for any written response to the request for production. Rather, objections are timely raised during
the deposition or are not waived. (See CCP § 2025.460.) Thus, a request to compel documents under the
deposition subpoena is premature as no deposition has yet occurred. Rather, if
documents are not produced at the deposition, Plaintiff may then move to compel
Defendant to produce the documents if such documents are somehow vital to the
deposition or instant action at the risk of sanctions. (See CCP § 2025.480; see also
CCP §2025.460(e).)
Thus, the objections to the
categories of documents to be produced are premature. However, to avoid additional motion practice
the court the Court notes that most of the requests are not overbroad or
irrelevant.
Overbroad/ Relevance
“[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action or to the
determination of any motion made in that 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.)
“‘[F]or discovery purposes, information is relevant if it might
reasonably assist a party in evaluating the case, preparing for trial, or
facilitating settlement’ and ‘[a]dmissibility is not the test and information,
unless privileged, is discoverable if it might reasonably lead to admissible
evidence.’ These rules are applied
liberally in favor of discovery . . . and (contrary to popular belief) fishing
expeditions are permissible in some cases.”
(Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal
citations omitted].) Therefore, even if
[discovery requests] are found to be “burdensome and oppressive,” the Court
should not simply sustain the objection and thereby excuse any answer. Rather,
the Court should limit the question to a reasonable scope. (Borse v.
Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)
Here, most of the request directly
relate to the allegations of the complaint as they directly relate to the
Subject Vehicle or vehicles that experienced similar defects. However, the requests are somewhat overbroad and
should be limited to nonconformities that the Subject Vehicle experienced, and
the requests should be geographically limited to California.
As there is no valid objection
to the notice of the deposition and Defendant failed to appear at the noticed
deposition, Plaintiffs’ motion to compel the deposition of Defendant’s PMK is
GRANTED.
Sanctions
Plaintiffs seeks sanctions of $5,940.00 against Defendant
and Defendant’s counsel of record to compensate Plaintiffs for the attorney
fees for the fifteen hours drafting the instant motion.
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.”
(CCP § 2025.450(c), [italics added].)
Thus, sanctions are mandatory unless circumstances make the imposition
of sanctions unjust. Moreover, the
failure to respond to authorized discovery is an abuse of the discovery
process. (CCP § 2023.010(d); Cal. Rules of
Court, Rule 3.1348(a).)
Here, the claimed time spent is clearly
unreasonable. Plaintiffs motion is
largely unreadable due to the hundreds of irrelevant pages needlessly attached
to the motion. Moreover, as noted above,
Plaintiffs did not sufficiently meet and confer. Accordingly, based on the totality of the circumstances,
the Court concludes that sanctions would be unjust. Therefore, the request for sanctions is
DENIED.
CONCLUSIONS AND
ORDER
Based on the forgoing, Plaintiff Susan Hopkins and
Jason Hopkins’ motion to compel the deposition of Defendant General
Motors LLC’s Person Most Knowledgeable is GRANTED. Defendant’s person most knowledgeable is
ordered to appear for deposition, remotely or with any other necessary
precautions, within thirty (30) days of notice of this order at a date and time
noticed by Plaintiff.
Plaintiffs’ request for sanctions is DENIED.
Moving Parties are ordered to provide
notice of this order and file proof of service of such.
DATED:
March 6, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court
[1] While not a basis for objection to
the notice of a deposition, this is a basis for sanctions as misuse of
discovery. (CCP § 2023.010.)