Judge: Elaine Lu, Case: 22STCV09655, Date: 2023-01-04 Tentative Ruling
Case Number: 22STCV09655 Hearing Date: January 4, 2023 Dept: 26
|
jessica
urquiza, and ALBINO URQUIZA PATLAN Plaintiffs, v. general motors
LLC; et
al.,
Defendants. |
Case No.: 22STCV09655 Hearing Date: January 4, 2023 [TENTATIVE]
order RE: Plaintiffs’ motion to compel the
deposition of General Motors LLC’s person most knowledgeable |
Background
On March 21, 2022, Plaintiffs Jessica Urquiza
and Albino Urquiza Patlan (jointly “Plaintiffs”) filed the instant action
against Defendant General Motors LLC (“Defendant”) arising out of Plaintiff’s
purchase of a 2017 Chevrolet Silverado. The complaint asserts three causes of action
for (1) Violation of the Song-Beverly Act – Breach of Express Warranty, (2)
Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation
of the Song-Beverly Act section 1793.2.
On October 28, 2022, Plaintiffs
filed the instant motion to compel the deposition of Defendant’s Person Most Knowledgeable
(“PMK”). On December 20, 2022, Defendant
filed an opposition. On December 27,
2022, Plaintiffs filed a reply.
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 August 15,
2022, Plaintiffs noticed the deposition of Defendant’s PMK with production of
documents unilaterally set for August 31, 2022.
(Davina Decl. ¶ 3, Exh. A.) Plaintiffs
also included a letter asking Defendant to provide alternative dates if the August
31, 2022 deposition date did not work for Defendant. (Davina Decl. ¶ 4, Exh. A.) In addition, on August 15, 2022, Plaintiff
emailed Defendant to request alternative dates of availability. (Davina Decl. ¶ 5, Exh. B.) Defendant did not serve a response to
Plaintiffs’ deposition notice. (Davina
Decl. ¶ 6, Exh. B; Major Decl. ¶ 5.) On August
31, 2021, Plaintiffs took a notice of non-appearance. (Davina Decl. ¶ 7, Exhs. C.) “On August 31, 2022, September 6, 2022,
September 8, 2022, September 12, 2022, September 14, 2022, and October 12,
2022, Plaintiffs sent emails to Defendant asking for dates for the PMQ
deposition, Plaintiffs sent emails to Defendant asking for dates for the [PMK]
deposition , Plaintiffs sent emails to Defendant asking for dates for the [PMK]
deposition.” (Davina Decl. ¶ 7, Exh.
B.) However, as of filing, Defendant has
not responded.” (Davina Decl. ¶ 7.) As Defendant failed to timely object to the
deposition and failed to appear at the deposition, Plaintiffs’ inquiry about
the nonappearance is sufficient to fulfill the meet and confer requirement.
Discussion
Untimely
Objections
After the instant motion was filed,
Defendant claims to have served objections to Plaintiffs PMK deposition notice
on December 20, 2022. (Major Decl. ¶ 5.) Defense Counsel states that the deposition
notice “was routed to the wrong attorney at my office through our e-service
system.” (Major Decl. ¶ 5.) Thus, Defense Counsel claims that due to this
error, Defendant failed to timely object to the deposition notice. (Major Decl. ¶ 5.)
Pursuant to Code of Civil Procedure
section 2025.410, “[a]ny 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.” (CCP § 2025.410(a).)
Here, Defendant’s PMK deposition was set
for August 31, 2022. Thus, any
objections were due by August 28, 2022.
However, as stated by Defendant, the objection was not served until
December 20, 2022 – 114 days after the objections were due. Accordingly, the objections to the notice of
the deposition are waived.
In opposition, Defendant contends that it
did not waive notice because “[t]he California Code of Civil Procedure allows
courts to grant relief from waiver of objections to interrogatories, requests
for admission, and requests for production of documents upon a showing of
mistake, inadvertence, or excusable neglect.”
(Opp. at p.5:8-10; see also CCP §§ 2030.290, 2031.300,
2033.280.) However, there is no such
relief under the Code of Civil Procedure for failure to timely object to
deposition notices. Nor is there a
reason to provide such relief. As
explained by the Rutter Group, “Errors or defects in a deposition notice are
rarely critical to the outcome of the case and, for this reason, are waived
unless promptly challenged.” (4. [8:483] Notice of Deposition:, Cal. Prac.
Guide Civ. Pro. Before Trial Ch. 8E-4.)
The reason for the harsh waiver rule is
because 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.
While Defendant has failed to
provide the objections to the deposition notice, the separate statement filed
by Defendant appears to have the “objections” to the notice of deposition that
Defendant sought to raise. However,
these purported objections are improper as they are not based on the
irregularity of the notice. Defendant
primarily objects to the categories sought for examination and the requests for
production as if they are interrogatories and request for production
respectively. This is an improper basis
for objecting to a deposition.
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 Plaintiff wishes 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 Plaintiff has 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.
Similarly, 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).) 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 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, Plaintiff 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, Plaintiff has not moved to
compel any of the documents to be produced, and Defendant has repeatedly noted
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.
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, the requests directly relate
to the allegations of the complaint and to the Subject Vehicle or the policies
and methods of Defendant’s compliance with the Song-Beverly Act.
As there is no timely or 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
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. ¶¶ 8-9.)
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).)
Given Defendant’s failure to timely object or respond to
the meet and confer efforts, 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 $1,500.00 reasonably compensates Plaintiffs 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 $1,500.00 to Plaintiffs Jessica Urquiza and Albino
Urquiza Patlan by and through counsel, within thirty (30) days of notice of
this order.
CONCLUSIONS AND
ORDER
Based on the forgoing, Plaintiffs Jessica Urquiza
and Albino Urquiza Patlan’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 $1,500.00 to Plaintiffs Jessica Urquiza and
Albino Urquiza Patlan by and through counsel, within thirty (30) days of notice
of this order.
Moving Parties are ordered to provide
notice of this order and file proof of service of such.
DATED:
January 4, 2023 ___________________________
Elaine
Lu
Judge of the Superior Court