Judge: Frank M. Tavelman, Case: 22STCV2276823BBC, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV2276823BBC    Hearing Date: November 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Diana Escoto (Plaintiff) brings this action against General Motors, LLC (Defendant). Plaintiff alleges that Defendant sold her a defective 2023 Chevrolet Corvette (Subject Vehicle) and thereafter refused to repurchase the vehicle in violation of the Song-Beverly Act.

Before the Court is motion by Plaintiff to compel the deposition of Defendant’s Person Most Knowledgeable (PMK) as to a variety of categories. Plaintiff argues that despite noticing the deposition and attempting to meet and confer, Defendant has not produced its PMK. Defendant opposes, arguing that they timely objected to a number of Plaintiffs’ deposition categories. Plaintiff did not file a Reply by the required deadline established by C.C.P. § 1005(b).  

ANALYSIS: 

I.                    LEGAL STANDARD 

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.” (C.C.P. § 2025.450(a).)

II.                 MERITS

Timeline

On September 8, 2023, Plaintiff served a Notice of Deposition of Defendant’s PMK. (Terzian Decl. ¶ 17, Exh. 4.) The deposition was noticed for October 4, 2023. (Id.) Plaintiff states she received no response to this deposition notice and that Defendant did not serve any formal objection. (Terzian Decl. ¶ 18.) Nor did the deposition of Defendant’s PMK go forward. (Id.)

On October 9, 2023, Plaintiff served an Amended Notice of Deposition of Defendant’s PMK, this time for November 3, 2023. (Terzian Decl. ¶ 19, Exh. 5.) Plaintiff states she received no response to this deposition notice and that Defendant did not serve any formal objection. (Terzian Decl. ¶ 20.) Nor did the deposition of Defendant’s PMK go forward. (Id.)

On July 30, 2024, Defendant’s counsel sent Plaintiff’s counsel a meet and confer letter. Defendant stated the letter was to serve as a collective objection to all outstanding Notices of Deposition served upon Defendant by Plaintiff’s counsel. (Terzian Decl. ¶ 21, Exh. 6.) The letter estimated that Plaintiff has noticed approximately 3,500 depositions for Defendant’s PMK across various cases. (Id.)

On July 31, 2024, Plaintiff’s counsel responded in a letter requesting the scheduling of depositions in various Song-Beverly Cases. (Terzian Decl. ¶ 22, Exh. 7.) It appears from the contents of the letter that Defendant and Plaintiff were previously at odds as to the scope of PMK depositions. (Id.) The letter from Plaintiff’s counsel asserts that this disagreement had since been worked out and deposition should proceed in cases slated for trial. (See Exh. 7 [“After much discussion, an agreement was reached whereby Defendant would proceed with PMK depositions and schedule them in an orderly manner, prioritizing the most relevant and preceding cases.”].)

On August 2, 2024, Plaintiff’s counsel once again inquired as to dates for depositions in the various Song-Beverly cases. (Terzian Decl., Exh. 8 at p. 67.) Defendant’s counsel responded that the July 31, 2024 meet and confer letter did not address Defendant’s concerns about the scope of the depositions. (Id.) Plaintiff’s counsel responded that any issues regarding scope were solved via agreement with Defendant’s prior counsel, King & Spalding. (Id. at p. 66.) In subsequent email communication, Defendant’s counsel disputed that the King & Spalding agreement was still in effect. (Id. at p. 63.) Defendant’s counsel also stated “…we remain committed to mutually exchanging depositions, within an appropriate scope of testimony, if we determine a case is in fact proceeding to trial.” (Id. at p. 65.) Plaintiff maintained that the King & Spalding agreement was still in place. (Id.)

Discussion

A motion under C.C.P. § 2025.450 must be accompanied by a meet and confer declaration demonstrating that the moving party has made a reasonable and good faith attempt at an informal resolution of each issue presented in the motion, or, if the motion is based on the deponent's failure to attend the deposition and to produce documents, it must be accompanied by a declaration stating that the moving party has contacted the deponent to inquire about the nonappearance. (C.C.P. §§ 2025.450(b)(2), 2016.040.)

Upon review of the party’s submissions, the Court finds the meet and confer efforts of Plaintiff were insufficient. The Court may deny a motion to compel discovery for lack of a reasonable and good faith attempt to meet and confer. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436-1439; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434-435.)

Plaintiff unilaterally noticed the deposition of Defendant’s PMK twice, once in September 8, 2023 and again in October 9, 2023. Plaintiff’s meet and confer efforts, submitted as Exhibits 6-8, did not take place until almost a year later. While C.C.P. § 2025.450 does not prescribe a time limit for filing a motion to compel attendance, this gap in time is still significant because Plaintiff’s meet and confer efforts make no reference to this case specifically.

Plaintiff’s July 31, 2024 meet and confer letter does not refer to this case by name or number. The July 31 letter instead addresses all pending Song-Beverly cases and lists several cases which Plaintiff’s counsel wish to move for deposition on. This case was not among that list. (See Terzian Decl., Exh. 7 at p.56.) The same can be said for Plaintiff’s email chain attached as Exhibit 8. Upon review, the Court can find no reference to this case in that email chain. The email chain does contain a list of cases different from that provided in the July 31 letter, but this case is still not present. (See Terzian Decl., Exh. 8 at p. 60.)

While the Court is sensitive to the fact that Plaintiff’s counsel apparently maintains a large number of Song-Beverly Actions against Defendant, it expresses concern that none of Plaintiff’s meet and confer correspondence pertains to this case specifically. The Court does not see how an omnibus letter sent six months after two deposition notices constitutes a good faith effort to meet and confer. Defendant’s counsel would have no reason to know that Plaintiff’s July 31 letter was intended to address this case because that letter does not reference this case. Plaintiff’s counsel cannot conduct meet and confer correspondence en masse and then expect Defendant’s counsel to divine that this communication applies to a deposition which was noticed six months prior.

Accordingly, the motion to compel the deposition of Defendant’s PMK is DENIED without prejudice. The parties are ordered to further meet and confer regarding the deposition in this case specifically. If, after these efforts, Plaintiff is still unable to take the deposition of Defendant’s PMK, the Court invites Plaintiff to refile her motion.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Diana Escoto’s Motion to Compel Deposition came on regularly for hearing on November 8, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S PMK IS DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  November 8, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles