Judge: Fumiko Wasserman, Case: 22CMCV00343, Date: 2023-11-16 Tentative Ruling

Case Number: 22CMCV00343    Hearing Date: November 16, 2023    Dept: B

22CMCV00343 Cesar Enriquez Cayax, Bayron Enriquez v. General Motors, LLC

Thursday, November 16, 2023 at 8:30 a.m.

[TENTATIVE] ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL DEPOSITION AND ATTENDANCE OF A PERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS OF DEFENDANT GENERAL MOTORS; REQUEST FOR SANCTIONS

I.        BACKGROUND

      The complaint alleges that Defendant issued an express warranty in connection with Plaintiffs’ purchase of a 2021 Chevrolet Silverado made and distributed by Defendant. The vehicle suffered from various defects that Defendant failed to repair within a reasonable number of attempts in violation of the Song-Beverly Consumer Warranty Act. Plaintiffs allege a claim for negligent maintenance against Felix Chevrolet LP.

II.      ARGUMENTS

      Plaintiffs request an order to compel Defendant, General Motors, LLC (“GM”) to produce its person most qualified (“PMQ”) to testify on the topics identified in Plaintiffs’ deposition notice served on August 22, 2023. Plaintiffs identified four categories of inquiry and six categories of document requests. GM served objections on September 5, 2023, refused to produce a witness, refused to provide alternative dates, and failed to appear at the September 11, 2023, deposition. The Court should impose sanctions.

      In opposition, Defendant states Plaintiffs' counsel failed to meet and confer in good faith, did not address GM’s objections although GM agreed to produce a witness responsive to two categories relevant to the allegations in Plaintiffs’ complaint and limited to Plaintiffs’ vehicle only. The request for production seeks irrelevant documents or GM has already agreed to produce the documents.

      Plaintiffs argue in reply that Plaintiffs' counsel has continued to meet and confer with Defendant, who has failed to provide a future date for deposition and failed to appear at a duly noticed deposition.

III.    DISCUSSION

      This matter is the 51^st action for violation of the Song-Beverly Consumer Warranty Act (“SBA”) filed in this Court against GM. This Court has heard 21 discovery motions to date involving GM’s failure to respond to relevant and discoverable requests for documents or to produce a PMQ. As in every motion, GM opposes on the same grounds: Plaintiffs failed to meet and confer in good faith, GM agreed to produce a witness or documents only on condition that Plaintiffs agree to its unilaterally imposed limitations (to which Plaintiffs unreasonably refuse), the discovery involves irrelevant topics that include vehicles other than Plaintiffs’ (“other vehicle evidence”), the documents are subject to numerous privileges, and/or compliance is unduly burdensome and oppressive.

      The Court has previously articulated its position on these same issues in multiple motions raised in the following cases involving GM:

      In this case, Defense counsel failed to respond in good faith to Plaintiffs’ request to meet and confer. On September 6, 2023, Plaintiffs' counsel sent GM a comprehensive, six-page letter responding to each of Defendant’s objections. (Thomas Decl., Ex. D.) On September 12, Plaintiffs' counsel sent an email to Defendant memorializing Defendant’s failure to appear at the September 12, 2023, deposition and that Defendant had not proposed alternative dates (Id. Ex. E.) GM sent a one-page letter response on the same day, faulting Plaintiff for unilaterally selecting a date for the deposition without consulting with defense counsel, while at the same time claiming its unilaterally imposed limitations are justified. (Id. Ex. F.)   

      GM’S opposition again offers no substantive or persuasive argument for failing to produce its witness or documents nor has GM supported its contention that it is entitled to unilaterally limit Plaintiffs’ inquiries without moving for a protective order. The Court has previously determined that Plaintiffs’ discovery requests fall within the broad scope of discovery in lemon law cases. The Court has conducted informal discovery conferences on other matters with GM’s counsel explaining why the discovery is permissible. Over the course of 21 motions heard against GM in these cases, Plaintiffs have narrowed the topics of inquiry from 20 categories to four, although GM continues to assert that the discovery is “overbroad.” (See for example 22CMCV00060 De Ceja v. General Motors, LLC, Erskine Law Firm as counsel for Defendant.)

      The Court has previously refused to consider the four-year-old Declaration of Huizhen Lu, Defendant’s Senior Technical Consultant, submitted in support of GM’s opposition. (Declaration of Yohannes Moore, Ex. A.) GM provides a duplicate of the same declaration signed on October 25, 2018, that contains generalized statements about purported trade secret and confidential information which “may” be contained in the requested discovery, none of which is identified specifically in a privilege log as required by statute. It also predates the filing of this action and the date of manufacture of the vehicle at issue. 

      All four categories of inquiry and the document requests are relevant, not vague, or ambiguous, nor overbroad. To the extent Defendant objects to testimony concerning confidentiality, trade secret, attorney-client privilege, work product, or any other privilege, Defendant’s remedy is to object to the question at the time of the deposition, not limit testimony as it deems appropriate or refuse to produce a witness. With respect to any document request where production is withheld pursuant to a privilege, Defendant is required to provide a privilege log of all documents withheld and the specific objection asserted to enable the Court to determine whether any privilege applies. (Code Civ. Proc., § 2031.240 subd. (b).) The privilege log must contain clear descriptions of the documents as set forth in the statute. (Id.)

      Plaintiffs are entitled to discover other vehicle evidence. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154.) The categories of inquiry and the document request are equally relevant to Plaintiffs’ burden of establishing Defendant’s non-compliance with its obligations under the Act to reasonably attempt to repair the vehicle. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) The discovery is relevant to the recovery of civil penalties. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.)

      Defendant has not established that compliance with the document request will be unreasonably burdensome and oppressive. Defendant’s remedy is to move for a protective order, not refuse to respond or unilaterally impose limitations on Plaintiffs’ discovery. Defendant did not meet its burden of proof on that issue. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)

      To the extent that Defendant refers Plaintiffs to documents previously produced, the response is improper.  Plaintiffs are entitled to a complete response in the form required by statute. It is not proper to answer “by stating, ‘see my deposition,’ ‘see my pleading,’ or ‘see the financial statement. Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Deyo v. Kilbourne, (1978) 84 Cal. App. 3d 771, 783-784.)

      In anticipation of GM’s contention that it requires more than 10 days to comply because it is overburdened by the number of lemon law cases it must defend, the discovery propounded, and the depositions for which witnesses must be produced, this is not an issue for the Court to resolve. Plaintiffs first served the deposition notice on August 22, 2023. Three months later, Plaintiffs have not been able to secure firm dates. Nor does defense counsel’s inability to manage its cases justify refusing to comply with discovery obligations, fundamentally and foremost, responding to efforts to meet and confer.

IV.    CONCLUSION

      Based on the foregoing, Plaintiffs’ motion is GRANTED. Defendant is ordered to produce a witness or witnesses qualified to testify on all topics of inquiry identified in Plaintiffs’ Notice of Deposition and to comply with the Demand to Produce Documents at Deposition within 10 days without limitation or condition. The Court GRANTS Plaintiffs’ request for imposition of sanctions against GM for making unsupported objections without substantial justification; for unsuccessfully opposing this motion without substantial justification, and for failing to confer in good faith, all of which constitute misuses of the discovery process. (Code Civ. Proc., § 2023.010.)

      Accordingly, GM and its counsel Erskine Law Group, is ordered to pay sanctions to Plaintiffs of $2,250 plus $60 dollars in filing fees (total $2,310) within 10 days. The Court finds that the hourly fee of $450 per hour is reasonable and that five hours to prepare the motion, reply, and appear at the hearing is reasonable. (Decl. of Phil Thomas, ¶¶ 10-12.)