Judge: Malcolm Mackey, Case: 22STCV03626, Date: 2023-02-01 Tentative Ruling


Case Number: 22STCV03626    Hearing Date: February 1, 2023    Dept: 55

MENDOZA v. FELIX CHEVROLET, LP                                                22STCV03626

Hearing Date:  2/1/23,  Dept. 55

#8:   MOTION TO COMPEL DEPOSITION ATTENDANCE OF A PERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS OF DEFENDANT GENERAL MOTORS LLC AND REQUEST FOR SANCTIONS.

 

Notice:  Okay

Opposition

 

MP:  Plaintiffs.

RP:  Defendant GENERAL MOTORS LLC.

 

 

Summary

 

On 1/28/22, plaintiffs filed a Lemon Law Complaint alleging that, on 9/3/18, Plaintiffs entered into a warranty contract with Defendant GENERAL MOTORS regarding a 2018 Chevrolet Malibu, which had nonconformities remaining unrepaired after a reasonable number of attempts.

 

 

MP Positions

 

Moving parties request an order compelling deposition attendance of GENERAL MOTORS PMQ, and awarding $1,765.00 sanctions, on grounds including the following:

·         Plaintiffs’ served a notice of deposition that lists reasonably particularized matters related to the request for repurchase of the Subject Vehicle, repairs performed to the vehicle, warranty claims and coverage regarding the vehicle, Defendant’s decision not to issue a buy back, and Defendant’s policies and procedures related to handling and responding to consumer complaints.

·         Plaintiffs made numerous attempts to meet and confer regarding possible deposition dates.

·         Defendant failed to respond with alternative dates.

·         Plaintiffs’ request for production of documents fall into categories: (1) Plaintiffs’ request for repurchase (categories nos. 1-5); (2) repairs, warranty claims, and coverage  categories nos. 1, 2, 15, 16); (3) Defendant’s policy and procedures regarding repurchases and customer complaints (categories nos. 6, 8, 12-13, 17-20, 22-23); (4) Defendant’s phone call handling policy and procedures and phone calls made by Plaintiffs regarding the Subject Vehicle (categories 6, 13-14)); and (5) documents pertaining to Plaintiffs and/or Plaintiffs’ vehicle (categories nos. 1-5, 21). (Kreymer Decl. ¶ 3, Exh. A).

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiffs seek to compel GM to produce a PMQ witness on all 24 topics and provide documents for 23 requests for production, going far beyond the scope of the claims and defenses in this case, which concern only the specific Malibu that Plaintiffs bought.

·         Plaintiffs seek to compel GM to produce a witness and documents about topics concerning other customers and other vehicles that are not at issue here, and general policies and procedures that are inapplicable.

·         Plaintiffs failed to properly meet and confer.

·         Plaintiffs already served 212 discovery requests, and Defendant has responded to documents requests.

·         The breadth of Plaintiffs’ Categories invites production of trade secret material.

·         Sanctions are not justified by any discovery misconduct.

 

 

Tentative Ruling

 

The motion is granted as to compelling deposition attendance, denied without prejudice as to compelling document production, and denied as to monetary sanctions (the Court finding substantial justification as to some issues).

Defendant may assert objections as to any documents not produced at the ordered deposition, as to which plaintiffs may file any proper motion to compel further documents.

Defendant is obligated to arrange for the deposition attendance.  “Code of Civil Procedure section 2025, subdivision (d)(6), provides that if a deposition notice describes matters on which examination is requested, ‘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.’"  Maldonado v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1395-98 (requiring granting of motion to compel depositions.).  “‘If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.’"   Maldonado v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1398.

There was no obligation to meet and confer as to the deposition.

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance.  CCP §2025.450(b)(2).   "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.  Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.  See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).

It is unpersuasive that partly duplicative discovery responses were already made, because duplicative discovery methods are permissible.

Discovery is allowed even if it is duplicative of other information already obtained.  Tbg Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal. App. 4th 443, 448;  Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 997 (allowing demands for documents and depositions notices requesting documents).  “A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.”  Irvington-Moore, Inc. v. Sup. Ct. (1993) 14 Cal. App. 4th 733, 739.  Accord  Bunnell v. Sup. Ct. (1967) 254 Cal. App. 2d 720, 723 (“plaintiff could not refuse to answer merely on the claim that the requested information had been given in previous depositions….”)  “The use of ... interrogatories is in addition to and exclusive of the right to take the deposition of the same party, and either procedure may be resorted to before or after the other.”  Greyhound Corp. v. Sup. Ct. In and For Merced County (1961) 56 Cal.2d 355, 373,  superseded by statute on other grounds as stated in  Dowden v. Sup. Ct. (1999) 73 Cal. App. 4th 126, 132.  Courts have discretion to prohibit discovery if it is unreasonably duplicative or unduly burdensome.  CCP §2019.030(a);  Emerson Elec. Co. v. Sup. Ct. (1997) 16 Cal.4th 1101, 1110;  Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 998.  

The Court finds that trade secrets are not proved at this time.  Specifically, opposing party’s declaration of Huizen Lu, dated in 2018, clearly does not address identified documents of all those requested in this case filed years later in 2022.

Evidence Code Section 1061(b)(1) requires parties seeking protective orders in criminal cases to submit an affidavit based on personal knowledge listing qualifications to opine, identifying alleged trade secrets and documents disclosing trade secrets, and showing qualifications of trade secrets, and that section should be followed in a civil action.  Stadish v. Sup. Ct (1999) 71 Cal. App. 4th 1130, 1144-1145.  Judges must act to protect trade secrets by reasonable means including protective orders, in camera hearings, sealing records and restricting disclosure.  CC §3426.5;  Hypertouch, Inc. v. Sup. Ct. (2005) 128 Cal. App. 4th 1527, 1555 n. 16.

Similarly, the party claiming a qualified privilege, such as confidential commercial information, has the burden to show that the information falls within the privilege.   Lipton v. Sup. Ct.  (1996) 48 Cal. App. 4th 1599, 1618-19 (addressing reinsurance discovery that may involve confidential commercial information about insurer financial condition).  Courts have limited discretion with regard to granting motions to compel sensitive commercial information over objections thereto.  Fireman's Fund Ins. Co. v. Sup. Ct. (1991) 233 Cal. App. 3d 1138, 1141 (court abused discretion in compelling responses that may contain sensitive commercial information, without first reviewing them in camera to ascertain relevance, and whether sensitive matter should be redacted).  But see Lipton v. Sup. Ct. (1996) 48 Cal. App. 4th 1599, 1618 n. 20 (citing Fireman's, supra, and declining to extend the statutory protection beyond confidential commercial information). 

As for whether documentation from other car purchases, beyond plaintiffs’, is discoverable, there is no governing California case on point. 

Plaintiffs may rely on opinions that did not involve any issue about scope of discovery in automobile defect cases.  E.g.,  Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 346  (in support of punitive damages, based on concealment, plaintiffs needed evidence that, prior to purchase of the vehicle, the defendant manufacturer was aware of a defect it was either unwilling or unable to repair);   Doppes v. Bentley Motors, Inc.  (2009) 174 Cal.App.4th 967, 996  (“the trial court had to impose terminating sanctions once it was learned during trial that Bentley still had failed to comply with discovery orders and directives and Bentley's misuse of the discovery process was even worse than previously known.”);  Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 154 (“Ford asserts the trial court abused its discretion when it denied Ford's in limine motions to exclude evidence of other vehicles and of the nonwarranty repair. We have already concluded the court did not abuse its discretion….”).  Another oft-cited opinion, while addressing penalties based upon evidence of automobile repair policies, did not address discovery, or plaintiff’s evidence of actual handling of other consumers’ individual complaints.  See  Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105  (“evidence would permit a jury to infer that Isuzu impedes and resists efforts by a consumer to force Isuzu to repurchase a defective car, regardless of the presence of an unrepairable defect, and that Isuzu's decision to reject Oregel's demand was made pursuant to Isuzu's policies rather than to its good faith and reasonable belief….”).  Plaintiffs sometimes cite an opinion inapplicable to discovery, which instead decided admissibility of former deposition testimony.  See  Berroteran v. Sup. Ct. (2019) 41 Cal. App. 5th 518, _, 254 Cal. Rptr. 3d 338, 353  (“the former testimony concerned Ford’s 6.0-liter diesel engine, policies and procedures for warranty claims,…  For all these reasons, the trial court abused its discretion in granting Ford’s motion to exclude the entire depositions ….”).  Similarly, defendants may rely on an unhelpful opinion, which did not address whether discovery regarding other vehicles is proper, but distinguishably ruled that a plaintiff failed to show prejudice by not having such discovery available for trial.  See  MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal. App. 4th 1036, 1045  ("He also argues courts have found relevant discovery requests seeking a car manufacturer's warranty policies and procedures, policies on buyback requests, and other customer complaints. Yet he does not show that, in this case, had the trial court compelled responses to his requests or denied the protective order, it is reasonably probable the jury would have found Mercedes-Benz willfully failed to repurchase or replace his car.").  Another opinion involved trial, not discovery, and addressed no evidence of other customers, but did mention evidence types in relation to the plaintiff customer, only.  See  Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185, 186  (Civil Code Section 1794 civil penalty for a willful violation may be shown if, “evidence showed … [the manufacturer] failed to investigate the repair history of the car,” “if the manufacturer reasonably believed the product did conform to the warranty, or a reasonable number of repair attempts had not been made, or the buyer desired further repair rather than replacement or refund,” or, if there was a “lack of a written policy,” ).  [Emphases added.]

Additionally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.

Finally, the opposing party’s reliance on other trial judges’ rulings is unpersuasive. 

Trial court rulings are not binding precedent.  E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.  Rulings in other trial court cases are irrelevant absent some additional showing like the elements of claim or issue preclusion.  Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448.