Judge: Margaret L. Oldendorf, Case: 21AHCV00076, Date: 2022-10-19 Tentative Ruling


Case Number: 21AHCV00076    Hearing Date: October 19, 2022    Dept: P

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

LUIS MARTINEZ MONTALVO, an individual,

 

                                            Plaintiff,

vs.

 

GENERAL MOTORS, LLC; and DOES 1 through 50, inclusive,

 

                                            Defendants.

 

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Case No.: 21AHCV00076

 

 

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S PERSON MOST QUALIFIED

 

Date:   October 19, 2022

Time:  8:30 a.m.

Dept.:  P

I.         INTRODUCTION

            This is a lemon law case. Plaintiff Luis Martinez Montalvo (Montalvo) alleges that in August 2019 he purchased a GMC Canyon that had been manufactured by Defendant General Motors, LLC (GM), and that in connection with the purchase he obtained a number of written warranties from GM. Montalvo alleges defects with the display system, engine, and fuel system, for which he unsuccessfully sought repair from GM. He sets for causes of action pursuant to Civ. Code §§1793.2 (a)(3), (b), and (d), 1791.2(a), and 1791.1.

            Before the Court is Montalvo’s motion to compel the deposition of GM’s person most qualified.  GM opposes the motion on several bases, none of which have merit. Procedurally, GM argues that the motion is defective because it is not accompanied by a separate statement and because meet and confer efforts were lacking. No separate statement is required on a motion to compel the appearance of a deponent who fails to appear, and the meet and confer efforts of Montalvo’s counsel were more than sufficient. GM also argues the motion does not comply with Code Civ. Proc. §2025.450(b)(1)’s requirement of demonstrating good cause for the production of documents at deposition; but as the motion makes clear, Montalvo is not seeking document production. Finally, GM argues it should not have to produce a person most qualified as to certain categories of information as they are beyond the scope of the litigation.  It has not, however, sought a protective order and therefore that issue is not before the Court. The motion is granted.

 

II.        LEGAL STANDARD

            Motions to compel compliance with a deposition subpoena are governed by Code Civ. Proc. §2025.450, which provides as follows:

(a) 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.

(b) 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.

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            Section 2025.420 provides that any party may move for a protective order to protect the party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”

 

III.      ANALYSIS

            A. All Procedural Requirements Are Met

                        1. No Separate Statement is Required

            Pursuant to Cal. Rules of Court, rule 3.1345(a)(4), a separate statement is required where a motion seeks to compel answers asked at a deposition that were not answered; rule 3.1345(a)(5) applies where a motion seeks the production of documents requested but not produced at deposition. Where, as here, there is no appearance by a deponent, there is no way of knowing what questions will not be answered or what documents the deponent will fail to produce. A separate statement could not, for example, set out the full text of the question and the full text of the response, as required by rule 3.1345(c).

            Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, on which GM relies, is distinguishable. There, a party’s separate statement was defective because it failed to set forth the responding party’s full response to each interrogatory and request for production.

            In short, there is no separate statement requirement here as GM failed to produce a deponent.

                        2. Meet and Confer Efforts Were Sufficient

            Montalvo’s counsel made numerous efforts to get GM’s counsel to provide a date for a PMK deposition, without success. Declaration of Vanessa J. Oliva, ¶¶ 16-19 and 22. GM takes the position here that these efforts were deficient because Montalvo, “made absolutely no attempt to address GM’s objections or narrow the scope of discovery sought.” (Opposition at 5:25-26, all emphasis in original.) GM cites no legal authority supporting a requirement to meet and confer on objections prior to a deposition. Code Civ. Proc. §2025.280(a) provides that service of a deposition notice “is effective to require any deponent who is a party to the action [] to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” Meet and confer efforts generally concern an effort to find a mutually agreeable time for the deposition. That is the effort Oliva made, unsuccessfully.

            To the extent GM seeks affirmative relief concerning the scope of the deposition, it must seek that relief by way of a motion for protective order.

                        3. No Documents Are sought

            GM argues that the motion fails to comply with Section 2024.450(b)(1)’s requirement that “specific facts showing good cause justifying the production for inspection of any documents” be shown. Here, Montalvo has made clear in his motion and proposed order that only the deposition is sought. As the motion does not include a request for production of documents, this section does not apply.

 

            B. GM Is Required To Comply With the Notice Of Deposition

            GM implies this motion is not necessary, arguing that it “agreed almost nine months ago (and remains willing) to produce a witness to testify about repairs made to Plaintiff’s vehicle, recalls and technical service bulletins, warranties, and the reasons that GM did not repurchase Plaintiff’s vehicle.” (Opposition at 2:28-3:2, bolding and italics in original.) The declaration of its counsel makes this point as well, indicating that GM “agreed to produce a PMQ for deposition Categories 1-4, 7, and 10 at a mutually agreed upon time and place.” (Declaration of Cameron Major, ¶¶ 3, 5, and 9.) But GM does not refute Montalvo’s evidence that he made efforts to secure a mutually agreeable date, GM failed to offer any. The undisputed evidence before the Court is that GM failed to ever provide Montalvo with dates for the deposition of its person most qualified despite multiple requests to do so, that Montalvo therefore set a date unilaterally, and that GM failed to appear. On these facts, the motion has merit and is therefore granted.

            In opposing this motion, GM urges the Court to determine that the discovery sought is overly broad and amounts to an abuse of discovery. (Opposition at 2:3-26; 3:7-8; 5:7-16; 6:1-7:19; 8:5-25.) The declaration of its attorney urges that this deposition request places an “undue burden” not just on GM but also on the Court, citing transcripts from hearings in other Los Angeles Superior Court cases. (Major Declaration, ¶¶ 12, 13, and Exhibits A and B thereto.) The request for a PMQ deposition is not generally considered an abuse of discovery. The fact that judges handling other lemon law cases may have found discovery to be too wide ranging is not relevant to the question whether in this action GM should be ordered to produce a PMQ for deposition. It should.               

 

IV.      CONCLUSION

            Montalvo’s motion to compel the deposition of GM’s person most knowledgeable is granted. GM is ordered to produce its person most knowledgeable on the categories identified in the notice of deposition at a mutually agreeable time within twenty days of notice of this order. Montalvo is ordered to provide notice of this order.

           

 

           

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT