Judge: Lee W. Tsao, Case: 22NWCV00389, Date: 2023-12-05 Tentative Ruling
Case Number: 22NWCV00389 Hearing Date: December 5, 2023 Dept: C
ALFREDO DUARTE vs GENERAL MOTORS, LLC
Case No. 22NWCV00389
Hearing Date: 12/05/23 @ 10:30am
#4
Tentative Order
Plaintiff
Alfredo Duarte’s Motion to Compel the Deposition of Defendant’s Person Most
Qualified is GRANTED in part as to Categories 7-8, 10-13, 16-17, 18-19, 21-22,
and 23-24.
Plaintiff’s Motion to Compel is DENIED as to
Category 20.
Moving Party to give notice.
Background
This is a “lemon law” case regarding a 2021 Chevrolet
Silverado 1500 (the “Subject Vehicle”) purchased and owned by Plaintiff ALFREDO
DUARTE (“Plaintiff”).
Since Plaintiff purchased it in November 2021, the
Silverado has had repairs performed under the Warranty on just three occasions:
(1) in March 2022 at 6,622 miles; (2) in August 2022 at 24,352 miles; and (3)
in February 2023 at 30,244 miles.
The first repair visit is the only visit that resulted in a
Warranty repair before Plaintiff sued GM; the other two visits post-date the
filing of the complaint. Collectively, the four Warranty repairs performed
across three visits kept the vehicle out of service for approximately 21 days.
According to Plaintiff’s counsel, on August 3, 2022,
Plaintiff served a Notice of Deposition of the Person Most Qualified for
General Motors, LLC and Demand to Produce Documents via e-mail. (Rogers Decl. ¶
13, Ex. 2.) On August 16, 2022, Defendant served objections to Plaintiff’s
Notice of Deposition of the PMQ, which stated that no witness would be
produced. (Rogers Decl. ¶ 14, Ex. 3.)
On June 20, 2023, Plaintiff’s counsel sent correspondence
to Defendant’s counsel to meet and confer about deposition dates for the
deposition of Defendant’s PMQ, asking for mutually agreeable dates. Defendant’s
counsel did not respond. (Rogers Decl. ¶ 15, Ex. 4.)
On June 23, 2023, Plaintiff’s counsel sent correspondence
to Defendant’s counsel again requesting a list of dates for the deposition of
Defendant’s PMQ. Defendant’s counsel did not respond. (Rogers Decl. ¶ 16, Ex.
5.)
On June 28, 2023, Plaintiff’s counsel sent correspondence
to Defendant’s counsel again requesting a list of dates for the deposition of
Defendant’s PMQ. Defendant’s counsel did not respond. (Rogers Decl. ¶ 17, Ex.
6.)
On August 1, 2023, Plaintiff served Plaintiff’s Frist
Amended Notice of Deposition of the Person Most Qualified (“PMQ”) for General
Motors, LLC and Demand to Produce Documents at Deposition ("Deposition
Notice"), seeking testimony and documents relating to (1) the Subject
Vehicle including the repair history and all records relating to the vehicle;
(2) all documents produced by Defendant; (3) Defendant’s warranty and vehicle
repurchase policies, procedures, and practices; and (4) Defendant's internal
investigation and analysis of the Defects, which will establish that Defendant
previously knew of the defects but nevertheless refused to repurchase the
Vehicle.
On August 7, 2023, Defendant served objections again
indicating that no witness would be produced, but that a witness would be
produced at a later mutually agreeable time. (Rogers Decl. ¶ 19, Ex. 8.) On
August 8, 2023, Plaintiff’s counsel sent correspondence again requesting dates
on which GM’s PMQ was available for deposition. Defendant’s counsel never responded
to Plaintiff’s attempts to schedule a deposition at a “mutually convenient time
and date”. (Rogers Decl. ¶ 20, Ex. 9.) To date, Defendant has provided no
communication regarding PMQ deposition dates, despite this extensive inquiry
and follow up by Plaintiff’s counsel, and it has become abundantly clear that
Defendant will not produce its Person Most Qualified for deposition, despite
its numerous reassurances. (Rogers Decl. ¶ 21.) As such, Plaintiff was forced
to file the present Motion to Compel in order to protect his rights. (Id.)
Meet and Confer
A motion under subdivision (a)
shall comply with both of the following:
(1) The motion shall set
forth specific facts showing good cause justifying the production for
inspection of any document, electronically stored information, or tangible
thing described in the deposition notice.
(2) The motion shall be
accompanied by a meet and confer declaration under Section 2016.040, or, when
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)
On August 8, 2023, Plaintiff sent a meet and confer letter
requesting further dates for the deposition. Accordingly, Plaintiff has
satisfied the meet and confer element.
Legal Standard
Any
party may obtain discovery, subject to restrictions, by taking the oral
deposition of any person, including any party to the action. (Code Civ. Proc.,
§ 2025.010.) A party desiring to take an oral deposition shall give a notice in
writing which states the specification of reasonably particularly of any
materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd.
(a)(4).) A properly served deposition notice requires a party to attend and to
testify, as well as to produce documents for inspection and copying. (Code Civ.
Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives
any error or irregularity unless that party promptly serves a written objection
at least three calendar days prior to the date for which the deposition is
scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)
“If,
after service of a deposition notice, a party to the action … without having
served a valid objection … 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 Civ. Proc., § 2025.450,
subd. (a).)
“Any motion involving
the content of a discovery request or the responses to such a request must be
accompanied by a separate statement. The motions that require a separate
statement include a motion: to compel answers at a deposition.” (Cal. Rules of
Court 3.1345(a)(4).
If
a motion to compel deposition is granted, sanctions are mandatory 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. (Code Civ. Proc., § 2025.450, subd.
(g)(1).)
Discussion
As a threshold matter, Defendant argues that Plaintiff’s
motion should be denied because Plaintiff failed to file a separate statement as
required by Cal. Rules of Court, rule 3.1345(a)(4).) Failure to include a
separate statement in compliance with Rule 3.1345 is grounds for denial of a
motion to compel. (Mills v U.S. Bank (2008) 166 Cal.App.4th 871, 893
(trial court properly denied motion to compel when plaintiffs failed to set out
full response to each discovery request in separate statement).) Making matters
worse, Plaintiff’s motion fails to refer to any specific discovery request, and
thus fails to satisfy the requirement that the statement address the factual and
legal reasons for compelling “each matter in dispute.” (Ibid.)
“The separate statement must be full and complete so that no person is required
to review any other document in order to determine the full request and the
full response.” (Cal. Rules of Court, rule 3.1345(c).) Plaintiff’s use of an apparent boilerplate
motion has made the determination of Plaintiff’s requests even more
confusing.
Under these circumstances, the court considered denying
Plaintiff’s motion outright for failure to comply with Rule 3.1345(c). However, given the failure of Defendant’s
counsel to respond to Plaintiff’s repeated requests for deposition dates
(Rogers Decl., ¶¶ 15-21) and the upcoming trial date (February 23, 2024), the
court will proceed to the merits.
Defendant argues that Plaintiff is seeking information
which has already been produced or is irrelevant. GM agreed to produce a PMQ for deposition
regarding Category Nos. 1-4, 9, 14-15, and 29. (Kay Decl., ¶.) Moreover, GM is willing to produce a witness
to testify about repairs made to Plaintiff’s vehicle, recalls and technical
service bulletins, warranties, communications, owner’s manual, and the reasons
that GM did not repurchase Plaintiff’s vehicle. (Opp., p. 2.)
Deposition
Categories No. 7-8, 10-13, 18-19, and 21-22
·
No.
7: Questions
regarding the nature, extent, and substance of correspondence between YOU, and
other persons or entities regarding the POWERTRAIN DEFECT;
·
No. 8: Questions regarding the nature, extent,
and substance of correspondence between YOU, and other persons or entities
regarding the ELECTRICAL DEFECT;
·
No. 10: Questions regarding the nature of the
POWERTRAIN DEFECT, including the cause of the POWERTRAIN DEFECT, all available
fixes that have been made available to your authorized dealers to date, and the
subsequent results of such fixes;
·
No. 11: Questions regarding the nature of the
ELECTRICAL DEFECT, including the cause of the ELECTRICAL DEFECT, all available
fixes that have been made available to your authorized dealers to date, and the
subsequent results of such fixes;
·
No. 12: Questions regarding YOUR ongoing
efforts to repair or remedy the POWERTRAIN DEFECT, including all internal
tests, investigations and the number of modifications made to YOUR vehicles
with the engine used in the SUBJECT VEHICLE, including the number of such
modifications made to YOUR vehicles which are the same year, make and model as
the SUBJECT VEHICLE;
·
No. 13: Questions regarding YOUR ongoing
efforts to repair or remedy the ELECTRICAL DEFECT, including all internal
tests, investigations and the number of modifications made to YOUR vehicles
with the engine used in the SUBJECT VEHICLE, including the number of such
modifications made to YOUR vehicles which are the same year, make and model as
the SUBJECT VEHICLE;
·
NO. 18: Questions regarding all available
repairs for the POWERTRAIN DEFECT and approximate dates on which those repairs
were made available to your dealers;
·
No. 19: Questions regarding all available
repairs for the ELECTRICAL DEFECT and approximate dates on which those repairs
were made available to your dealers;
·
No. 21: Questions regarding any communications
concerning the POWERTRAIN DEFECT, including the cause of the POWERTRAIN DEFECT,
all available remedies, and discussions of any and all modifications of YOUR
vehicles’ powertrain system and related parts provided to date, and the
efficacy of those modifications;
·
No. 22: Questions regarding any communications
concerning the ELECTRICAL DEFECT, including the cause of the ELECTRICAL DEFECT,
all available remedies, and discussions of any and all modifications of YOUR
vehicles’ powertrain system and related parts provided to date, and the
efficacy of those modifications;
Deposition
Categories Nos. 7-8; 10-13; 18-19; 21-22 are overbroad because they seek
information not related to the 2021 Chevrolet Silverado 1500 and are not narrowly tailored as to
the years Plaintiff dealt with the alleged defects. Therefore, these requests
will be limited to information related to repairs made to 2021
Chevrolet Silverado 1500s sold
in California.
Document
requests Nos. 16-17 and 23-24
·
No. 16. Questions regarding all REPAIR
DOCUMENTS that YOU have issued to YOUR dealers and/or consumers regarding the
POWERTRAIN DEFECT or other non-conformities experienced by Plaintiff with
respect to the SUBJECT VEHICLE;
·
No. 17. Questions regarding all REPAIR
DOCUMENTS that YOU have issued to YOUR dealers and/or consumers regarding the
ELECTRICAL DEFECT or other non-conformities experienced by Plaintiff with
respect to the SUBJECT VEHICLE;
·
No. 23. Questions regarding any available fix
for the POWERTRAIN DEFECT;
·
No. 24. Questions regarding any available fix
for the ELECTRICAL DEFECT.
Deposition
Category Nos. 16-17 seek information about Plaintiff’s specific experience with
his vehicle and are thus within the proper scope of discovery. As written, Nos. 23-24 are overbroad because
they seek information about vehicles other than the 2021
Chevrolet Silverado 1500. Deposition Category Nos. 23-24 will be limited
to information related to repairs made to 2021 Chevrolet Silverado 1500s
sold in California.
Deposition
Category No. 20
·
Category No. 20: Questions regarding YOUR
third-party dispute resolution program
Defendant maintains such testimony is irrelevant given the
fact that GM has no record of Plaintiff participating in any such program prior
to filing suit against GM. The Court
agrees. This category is DENIED because
it is irrelevant to Plaintiff’s claims.
Sanctions
The
court shall impose a monetary sanction against the party who unsuccessfully
makes or opposes a motion to compel further responses to interrogatories or
demand for production of documents unless the party subject to the sanction
acted with substantial justification or the sanction would otherwise be unjust.
(Code of Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h), 2033.290,
subd. (d).)
The Court finds that Defendant acted
with substantial justification. No
sanctions are imposed.