Judge: John J. Kralik, Case: 23BBCV01815, Date: 2024-02-23 Tentative Ruling

Case Number: 23BBCV01815    Hearing Date: February 23, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

On August 8, 2023, Plaintiff Jack Bernstein (“Plaintiff”) filed a complaint for restitution and damages for violation of the Song Beverly Consumer Warranty Act against Defendant General Motors, LLC (“GM”).  Plaintiff alleges that on October 16, 2020, he purchased a 2020 Chevrolet Bolt.  GM is alleged to be the manufacturer and to have offered an express warranty to Plaintiff pursuant the Act.  Plaintiff alleges the vehicle suffered from nonconformities to the warranty including, but not limited to the “mirror, camera, high voltage may cause battery to burn or catch fire, seatbelt pretensioner, fire risk, electrical, and other defects.”  (Compl., ¶10.)  Plaintiff alleges that GM was unable or refused to conform the vehicle to the applicable express and implied warranties under the Act.  Plaintiff alleges that GM has an obligation to repurchase the vehicle and make restitution. 

B.    Motion on Calendar

On January 16, 2024, Plaintiff filed a motion to compel the deposition of GM’s person most qualified (“PMQ”) with production of documents.   

On February 8, 2024, GM filed opposition papers. 

On February 15, 2024, Plaintiff filed a reply brief.

DISCUSSION

         Plaintiff moves to compel the deposition of GM’s PMQ with production of documents. 

         Plaintiff served the notice of deposition of GM’s PMQ on September 11, 2023.  (Kaufman Decl., Ex. 1.)  On October 2, 2023, GM served objections to the notice.  (Id., Ex. 2.)  The parties attempted to meet and confer, whereby Plaintiff stated he was willing to withdraw one of the requested categories and document request as to other lemon law buybacks and agreed to execute the LASC model protective order for GM’s document production; but Plaintiff states that GM did not respond.  (Id., ¶7, Ex. 3.)  Plaintiff served the First Amended Notice of Deposition on October 10, 2023, which withdrew the aforementioned category of testimony and document requests.  (Id., Ex. 4.)  On October 23 2023, GM objected.  (Id., Ex. 5.)  On October 27, 2023, Plaintiff served the Second Amended Notice of Deposition, to which GM objected on November 10, 2023.  (Id., Exs. 7-8.)  Plaintiff states he again attempted to meet and confer but GM did not respond.  (Id., Ex. 9.)  Plaintiff now moves to compel the PMQ’s deposition so that Plaintiff can assess his warranty claims and service issues, to prove his case and show that GM’s violation of the Act was willful, and to prepare for trial and settlement and to ascertain. 

         Plaintiff argues that there are 6 matters of testimony and 10 documents requests at issue in the notices:

·      Deposition Categories

o   1. Questions about why GM did not repurchase or replace the subject vehicle before this action was filed.

o   2. Questions about the service history and warranty history.

o   3. Questions about communications between GM and Plaintiff.

o   4. Questions about communications between GM and anyone else regarding the vehicle.

o   5. Questions relating to GM’s investigation into whether or not the vehicle qualified for repurchase before this action was filed.

o   6. Questions about the warranty conformities in the vehicle.

o   relating to GM’s policies and procedures for complying with the lemon law.

·      Requests for Production of Documents

o   1. Documents showing the repairs to the vehicle.

o   2. Documents evidencing correspondence relating to Plaintiff or the subject vehicle, excluding attorney-client communications.  

o   3. Copies of GM’s California lemon law policy and procedure manual(s) used by GM’s dealers or authorized customer service representatives.

o   4. GM’s customer relations file regarding Plaintiff or the subject vehicle.

o   5. Writings provided to GM’s customer relations representatives, which refer to rules, policies, or procedures concerning the issuance of vehicle purchase refunds or replacements pursuant to the Act.

o   6. Copies of the TSBs that relate to the subject vehicle.

o   7. Copies of all recall notices that apply to the subject vehicle.

o   8. Copies of all documents GM reviewed when it decided pre-litigation not to repurchase/replace the subject vehicle pursuant to the lemon law.

o   9. GM’s lemon law policy and procedure manual.

o   10. Copies of any photographs/videos of the subject vehicle.

(Mot. at p.4.)    

         In opposition, GM argues that Plaintiff has served 133 discovery requests (41 RPDs, 22 RFAs, 41 SROGs, and 30 FROGs, plus 11 RPDs in the Deposition Notice).  GM argues that it offered to produce a PMQ for 6 of 7 categories at issue in this motion on a mutually agreeable date, but that Plaintiff has refused to proceed.  GM states that it agreed to produce a PMQ for Categories 1-6 in the First Amended Notice of Deposition and agreed to produce responsive documents.  (Opp. at p. 3.) 

         With respect to Category Nos. 1-6, subject to certain objections and privileges, GM agreed to produce its PMQ at a mutually agreeable time and place to discuss relevant, nonprivileged aspects of the categories.  Thus, the Court will grant the motion to compel GM’s PMQ to attend his or her deposition, but the Court declines to award sanctions as this motion could have been avoided had the parties continued to meet and confer and informally resolve this discovery dispute. 

         With respect to the RPDs, GM objected that the documents sought by Plaintiff are within the possession, custody, and control of dealerships that are owned and operated independently of GM and that the documents sought are privileged.  GM stated it would produce any Service Request Activity Reports, the Global Warranty History Report, and any incidentally obtained repair orders, but would not produce additional documents.  Based on their representations, the documents are not within the possession, custody, and control of GM or its PMQ, but are instead in the possession of separate dealerships and repair facilities.  (See e.g., CCP § 2031.230.)  To the extent that the documents are not within GM’s possession, Plaintiff should consider issuing subpoenas on the various dealerships and repair facilities that he purchased his vehicle from and tendered his vehicle to for repairs.  Further, GM states that it already produced responsive documents to RPD Nos. 1, 2, 4, 6, 7, and 8 within its possession, custody, and control, including the purchase/lease contract, any repair orders it may have obtained from GM-authorized dealerships, the Global Warranty History Report, Service Request Activity Reports, and lists of TSBs and recalls for the vehicle.  For RPD No. 10, it states that it is not aware of any responsive photographs or videos.  For Nos. 3, 5, and 9, GM argues that its objections should be sustained because the RPDs go beyond the relevant discoverable materials and that it has already produced Plaintiff-specific information relating to the pending claims and defenses.  With respect to the RPD Nos. 3, 5, and 9, the Court will order GM and its PMQ to produce the documents if they were reviewed by customer representatives who decided not to repurchase the subject vehicle. If such  documents are alleged to be protected by the attorney-client privilege, then GM must prepare and serve a privilege log within 30 days. The documents will be ordered to be produced subject to a protective order.   

         Plaintiff requests sanctions in the amount of $2,975 against GM.  The request for sanctions is denied. 

CONCLUSION AND ORDER

         Plaintiff Jack Bernstein’s motion to compel the deposition of Defendant’s person most qualified is granted such that Defendant shall produce its person most qualified on a mutually agreeable date.  Defendant and its person most qualified are ordered to produce documents in response to Requests for Production of Documents Nos. 3, 5, and 9, limited to documents that were reviewed by customer representatives who decided not to repurchase the subject vehicle. If such documents are alleged to be protected by the attorney-client privilege, then GM must prepare and serve a privilege log within 30 days.  Any production of RPD Nos. 3, 5, and 9 shall be subject to a protective order.  The remainder of the motion to compel Requests for Production of Documents in the deposition notice is denied. 

         No sanctions will be awarded.