Judge: Margaret L. Oldendorf, Case: 22AHCV01139, Date: 2023-10-23 Tentative Ruling

Case Number: 22AHCV01139    Hearing Date: January 19, 2024    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

In this lemon law case, Plaintiff Herman and Rosa Lopez (collectively Plaintiffs) allege claims against Defendants Courtesy Chevrolet Center and General Motors LLC (GM) concerning their purchased vehicle, a 2019 Chevrolet Blazer.

Before the Court is Plaintiffs’ motion to compel GM to produce a Person Most Qualified for deposition. The motion was filed December 13, 2023. GM filed an opposition January 5, 2024. Plaintiffs filed a reply on January 11, 2024.

 For the reasons set forth below, the motion to compel deposition is DENIED.

II.       LEGAL STANDARD

 “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, 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. (CCP § 2025.230.)

Code Civ. Proc. Section 2025.450 

(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. 

. . . 

(g)(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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. 

          III.     ANALYSIS

          A. Meet and Confer Efforts Were Not Sufficient

          Plaintiffs offer the declaration of their attorney, Phil A. Thomas, in support of their meet and confer efforts. (Thomas Declaration.) Thomas declares that he first sent a meet and confer letter on November 28, just one day after GM served objections to the deposition notice. (Thomas Decl. ¶ 6, Exh. D.) Thomas declares that subsequently, he tried to get GM’s counsel to agree to a date for a PMQ deposition to no avail. (Thomas Decl. ¶ 11.)

In its opposition, GM contends that Plaintiffs failed to meet and confer in good faith. Specifically, GM contends that they served objections on November 27, 2023 to the deposition and in response, Plaintiffs sent a letter the next day simply requesting all objections be withdrawn. (Yaraghchian Decl. ¶ 5.) GM offers the declaration of its attorney, Arash Yaraghchian, in support. He declares that Plaintiffs did not substantively respond to its objections regarding scope of the deposition and filed this motion instead. (Yaraghchian Decl. ¶ 10.) He declares that GM offered to produce someone to depose for some of the categories in the deposition notice (Categories Nos. 1 & 2), not all, subject to GM’s objections. (Id., see also Opposition p. 5: 1-19.)

The Court finds that meet and confer efforts were not sufficient.  

Notwithstanding this fact, the Court analyzes the merits of the motion below.   

B. Motion

Plaintiffs served a notice of deposition on November 14, 2023 as to a December 4 deposition date. (Thomas Decl. ¶ 3, see Exh. A.) The deposition notice seeks testimony from the person most qualified about why GM did not purchase the vehicle back from Plaintiffs prior to this lawsuit being filed, the nature and extent of the vehicle’s repair history, and other similar topics. On November 27, 2023, Defendant GM served objections to the deposition notice. (Thomas Decl. ¶ 5, see Exh. C.) In response, Plaintiffs’ counsel sent a meet and confer letter on November 28. (Thomas Decl. ¶ 6, Exh. D.) On December 1, Plaintiffs sent GM a video link to access the remote deposition set for December 4. (Thomas Decl. ¶ 7.) GM nor their person most qualified appeared at the deposition. Lopez then sent a follow-up requesting additional dates for the deposition but received no response. (Thomas Decl. ¶8.) GM sent a response letter to the meet and confer on December 5, again objecting to the deposition of their PMQ. (Thomas Decl. ¶ 9.) Counsel for Plaintiffs sent one additional email to request deposition dates on December 11, 2023 and received no response. (Thomas Decl. ¶ 10.)

Counsel for Plaintiffs, Phil A. Thomas, declares he has had past dealings with GM and has run into issues getting a deposition from GM’s person most knowledgeable. (Thomas Decl. ¶ 12.) He declares that GM is willing to produce a witness on some of the topics in the deposition notice but not all. (Thomas Decl. ¶ 11.) He declares that GM offered deposition dates of November 30 and December 5, but due to the number of other cases counsel had pending against GM, he did not elect one of those deposition dates for this case. (Id.)

Plaintiffs urge that the information sought in the PMQ deposition is relevant to their lemon law claims. (Motion, p. 8: 1.) Lopez cites CACI No. 3201 for the elements of a lemon law claim; namely, that plaintiff had a defective new car, presented it for repairs, repairs were inadequate and defendant refused to replace or buy back the car. (CACI No. 3201.) Information as to GM’s analysis of whether Plaintiffs’ car should be bought back, the repair history of the car, GM’s lemon law policies and procedures and GM’s staff training regarding lemon law is relevant to Plaintiffs’ claim, as they relate to the elements of a prima facie case under the Song-Beverly Act, also referred to as lemon law. Plaintiffs also cite three lemon law cases as to the relevance of the car manufacturer’s policies, prior vehicle repairs and the manufacturer’s criteria for determining if a car is a lemon. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136; Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th 174, 186; Oregel v. American Isuzu Motors Inc. (1995) 90 Cal.App.4th 1094.)

Lastly, Plaintiffs urge that GM’s other objections to the PMQ deposition were not made properly, and therefore fail. (Motion, p. 5: 5-28; see also Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783 [holding that a discovery request is only overbroad if it is essentially unintelligible]; Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [holding that if a party wishes to obtain a protective order, it must provide good cause for the order] and Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [setting forth the process to analyze privacy interests.])

In opposition, GM urges that the information sought by the deposition notice is so overly broad as to be irrelevant. (Opposition, p. 6: 3-10; Opposition Separate Statement p. 4: 25-26.)  GM also urges that the only issue at hand is whether GM failed to repurchase the Plaintiffs’ vehicle after a reasonable amount of repair attempts, so discovery should be limited to this issue. The Court notes that the scope of discovery is relatively broad: the standard is whether the discovery device is reasonably calculated to lead to discoverable evidence -- not that discovery itself must yield discoverable evidence.

GM also urges that the requests and categories sought by the deposition notice are overly broad. (Opposition, p. 7: 18-19, Opposition Separate Statement p. 4: 15-17.) GM urges “Clearly, Plaintiffs are using the discovery process as a sledgehammer to wage war, rather than like a lancet to facilitate litigation.” (Opposition, p. 7: 22-23.)  

Lastly, GM urges that the deposition notice impermissibly seeks trade secret information and other protected categories. (Opposition, p. 8: 7.) This argument has merit.  GM urges that revealing its internal policies and procedures would put it at a competitive disadvantage in the marketplace. In support, GM provides the definition of trade secrets under California Law. (See McGuan v. Endovascular Techs. Inc. (2013) 182 Cal.App.4th 974, 988-989.) GM urges that Lopez must demonstrate a compelling need for this information. (Opposition p. 8: 24-27.) GM also provides the declaration of Huizhen Lu, in support of its contention that GM’s internal policies and procedures are trade secret information. (Lu Declaration, Exh. A to Yaraghchian Declaration.) Pertinently, Lu declares that he is an employee of GM who knows of the information sought by Plaintiffs. (Lu Decl. ¶ 8.) He declares that this information is a trade secret and would cause competitive harm if released to the public. (Lu Decl. ¶¶ 9-12.) However, Lu’s declaration is from 2018, before the instant case was even filed. (Yaraghchian Decl. Exh. A p.20.) However, Yaraghchian also declares that internal policies and procedures information are trade secrets. (Yaraghchian Decl. ¶ 16.) The declaration of Yaraghchian supports the assertion that the information sought contains trade secrets. (See also Opposition Separate Statement p. 5: 10-27.)

Accordingly, as Plaintiffs failed to meet and confer in good faith and the deposition notice seeks trade secret information, the motion to compel deposition is denied.

C. Sanctions

Plaintiffs seek sanctions of $1,860.00 against GM for necessitating this motion. Plaintiffs’ counsel, Phil A. Thomas, indicates that he spent 1.5 hours preparing the motion, expects to spend 1.5 hours reading opposition and on reply and 1 hour attending the hearing on this motion. His hourly rate is $450. He spent $60.00 on the filling fee for the motion. (Thomas Decl. ¶ 14.)

The Court declines to award monetary sanctions to Plaintiffs, as they failed to meet and confer in good faith prior to making this motion.  

IV.     CONCLUSION AND ORDER

          The motion by Plaintiffs for an order compelling the deposition of GM’s person most qualified is denied. Plaintiffs’ request for sanctions is also denied.

Counsel for GM is ordered to provide notice of this ruling.  

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT