Judge Elaine Lu, Case 22STCV02933 2022-12-12 Tentative Ruling

On January 25, 2022, Plaintiffs Jonathan Saavedra and Samuel Saavedra (jointly “Plaintiffs”) filed the instant action against Defendant General Motors LLC (“Defendant”) arising out of Plaintiffs’ purchase of a 2019 Chevrolet Silverado 1500. The complaint asserts two causes of action for (1) Violation of the Song-Beverly Act – Breach of Express Warranty and (2) Violation of Song-Beverly Act – Breach of Implied Warranty.

On September 9, 2022, Plaintiffs filed the instant motion to compel the deposition of Defendant’s Person Most Knowledgeable (“PMK”) with production of documents. On October 27, 2022, the Court granted Plaintiffs’ ex parte motion to advance the instant motion advancing the hearing to December 12, 2022. (Minute Order 10/27/22.) The Court also ordered the parties to file a joint statement regarding their further meet and confer efforts. (Minute Order 10/27/22.) On November 29, 2022, Defendant filed an opposition. On December 5, 2022, Plaintiff filed a reply.

“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).)

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 July 6, 2022, Plaintiffs noticed the deposition of Defendant’s PMK with production of documents unilaterally set for July 26, 2022. (Davina Decl. ¶ 3, Exh. A.) Plaintiff also included a letter asking Defendant to provide alternative dates if the July 26, 2022 deposition date did not work for Defendant. (Davina Decl. ¶ 4, Exh. A.) In addition, on July 6, 2022, Plaintiffs emailed Defendant to request alternative dates of availability. (Davina Decl. ¶ 5, Exh. C.) On July 18, 2022, Defendant served its objections to Plaintiffs’ notice of the deposition and stated that it would not produce a PMK for the deposition on July 26, 2022. (Davina Decl. ¶ 6, Exh. D.) On July 25, 2022, Plaintiff sent the zoom link for the July 26, 2022 deposition. When Defendant’s PMK did not appear, Plaintiff took a notice of non-appearance. (Davina Decl. ¶¶ 7-8, Exh. E.) “Plaintiff thereby followed up on July 26, 2022, July 28, 2022, August 1, 2022, August 3, 2022, August 5, 2022, August 9, 2022, and August 11, 2022 with Defendant to ensure the depositions move forward.” (Davina Decl. ¶ 9, Exh. C.) However, as of filing, Defendant has not responded. (Davina Decl. ¶ 9.) None of these emails addressed any of the objections raised by Defendant. Nor did Plaintiff inquire as to why Defendant’s PMK did not appear as required for the meet and confer effort to be sufficient. (CCP § 2025.450(b)(2).) At most, Plaintiff only emailed about future deposition dates. This is not a sufficient meet and confer effort. Moreover, no evidence has been presented showing that Plaintiff met and confer as ordered by the Court on October 27, 2022.

In the response to the 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. (Davina Decl., Exh. D.) 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 to the lack of 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 the responding party identify who is the responding party’s person’s most knowledgeable or determine 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 “[a]ll warranty claims made to YOU with regard to the SUBJECT VEHICLE.” (Davina Decl., Exh. A.) This clearly indicates that Plaintiffs wish 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 because 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 because 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, Defendant should assert these objections only to specific objectionable questions during the deposition -- not to the notice of the deposition.

To the extent that Defendant wishes to limit the scope of the examination to certain matters or to the extent that Defendant objects to discussion of certain matters at the deposition, Defendant was required to move for a protective order. (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 a motion is unnecessary as to designated categories because objections can be made at the deposition to specific questions rather than to broad categories; some questions relating to a category may be proper while others may be improper and invade privileged information.

As to Defendant’s 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, the sole basis for written objections is whether the request sufficiently identifies the requested documents. H, the requests for production clearly identify what documents are sought. For example, as to request 8, the notice requests “[a]ll recalls performed on the SUBJECT VEHICLE.” (Davina Decl., Exh. A.) This clearly indicates that Plaintiff seeks repair and recalls records regarding the Subject Vehicle. Thus, Defendant can clearly identify what documents to produce.

Critically, a request for documents in conjunction with a deposition notice is not the equivalent of a request for production of documents pursuant to Code of Civil Procedure section 2031.010 et seq.; an objection to a category for being overbroad, privileged, etc. is not necessary and is not proper in the form of 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 would be premature because no deposition has yet occurred. Rather, if documents are not produced at the deposition, Plaintiffs may then move to compel Defendant to produce the documents if such documents are vital to the deposition or instant action at the risk of sanctions. (See CCP § 2025.480; see also CCP §2025.460(e).) Moreover, Plaintiffs must then also provide a declaration showing specific facts showing good cause as to each of the documents described in the notice. (CCP § 2025.450(b)(1).)

Moreover, Defendant has repeatedly noted in its unnecessary response that it has produced such documents already. Thus, Defendant bringing such documents to the deposition should not be overly burdensome. Regardless, 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.

“[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 requests directly relate to the allegations of the complaint and to the Subject Vehicle. As to requests 11 through 17, the requests are somewhat overbroad and could reasonably be construed to require production of all nonconformities within the United States or the world for every make and model of vehicle Defendant has ever made. Thus, these overbroad requests should be limited to nonconformities that the Subject Vehicle experienced, and the requests should be geographically limited to California.

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

As noted in some of the responses to the document requests, Defendant contends that some of the documents would be protected by the attorney-client/work product privilege. (See Davina Decl. Exh. D.) Plaintiffs contend in their separate statement that Defendant must produce a privilege log to support. The Court disagrees. Plaintiffs have mistaken a request to produce documents with a deposition notice with a formal request for production of documents. The requirement for a privilege log arises in response to a request for production of documents from statute. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].) There is no such similar requirement with regards to documents produced – or in this case not produced – pursuant to a deposition notice. Rather, Defendants need only make a specific objection at the deposition and provide some basis to support the objection– presumably orally on the record. (CCP § 2025.460(a).)

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.

Plaintiff seeks sanctions of $2,210.00 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 3 hours were spent on the instant motion at a billed rate of $175 by a law clerk, an anticipated 3 hours will be spent on reviewing the opposition and drafting a reply at a billed rate of $325, an anticipated 2 hours will be spent on attending the hearing at a billed rate of $325, and filing fees of $60. (Davina Decl. ¶¶ 10-11.)

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).)

As noted above, Plaintiff did not inquire about Defendant’s PMK’s failure to comply with the deposition notice. Nor did Plaintiff address any of the objections or concerns raised by Defendant in the meet and confer efforts or comply with the Court’s order to meet and confer. However, given Defendant’s refusal to provide dates for a deposition, the Court finds that some sanctions are warranted. Based on the totality of the circumstances including the relative simplicity of the instant motion, the Court finds that $350.00 reasonably compensates Plaintiff for the attorney’s fees incurred in bringing this motion.

Defendant General Motors and its counsel of record, Erskine Law Group, PC, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $350.00 to Plaintiffs Jonathan Saavedra and Samuel Saavedra by and through counsel, within thirty (30) days of notice of this order.

Based on the forgoing, Plaintiffs Jonathan Saavedra and Samuel Saavedra’s 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 twenty (20) days of notice of this order at a date and time noticed by Plaintiffs.

Defendant General Motors and its counsel of record, Erskine Law Group, PC, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $350.00 to Plaintiff Alejandro Arroyo Salgado by and through counsel, within thirty (30) days of notice of this order.

Moving Party is ordered to provide notice of this order and file proof of service of such.

[1] While not a basis for objection to the notice of a deposition, failure to comply with the Local Rule may be a basis for sanctions as misuse of discovery and will also factor into the Court’s consideration of the request for sanctions. (CCP § 2023.010.)

Superior Court of California

County of Los Angeles

Department 26