Judge: Margaret L. Oldendorf, Case: 23AHCV00011, Date: 2023-09-18 Tentative Ruling

Case Number: 23AHCV00011    Hearing Date: February 26, 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, Plaintiffs Rosalia Padilla and Elias Macias (collectively Plaintiffs) allege that they purchased a 2021 Chevrolet Silverado 1500 in 2021 which was defective. They sued General Motors LLC (GM) for these defects.

Before the Court is Plaintiffs’ motion to compel GM to produce a Person Most Qualified for deposition. The motion was filed January 19, 2024. GM filed an opposition on February 9, 2024. Plaintiffs filed a reply on February 16, 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.  (emphasis added.)

III.     ANALYSIS

          A. Meet and Confer Efforts Were 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 January 9, four days after GM served objections to the deposition notice. (Thomas Decl. ¶ 6, Exh. D.) Thomas declares that after, he sent a video link for the deposition on January 10. (Thomas Decl. ¶ 7.) He and plaintiffs then logged into the link on January 12, the originally scheduled day for deposition but defendant nor its PMQ appeared. (Thomas Decl. ¶ 8.)

          However, in opposition, GM urges that meet and confer efforts were not sufficient. In support, GM offers the declaration of its attorney, Arash Yaraghchian. Yaraghchian declares that “Plaintiffs have made no attempt to meaningfully engage with GM to attempt to resolve this dispute” and that “Plaintiffs have not engaged substantively with GM about GM’s well-founded objections (in whole or in part) to the 4 categories and 6 requests at issue here”. (Yaraghchian Decl. ¶ 5.) Additionally, he declares that “Plaintiffs’ Counsel’s emails concerned only the date on which to hold the deposition, failing to even acknowledge GM’s responses and objections.” (Id., referencing Plaintiff’s counsel’s declaration and the exhibits B and D attached to it.)

On review of the correspondence, the Court notes that the emails themselves only speak to coordination of an alternate date for the PMQ deposition BUT that the attached meet and confer letter did engage with GM’s objections substantively.  (See Thomas Decl. Exh. D.)

The Court finds that meet and confer efforts were sufficient. 

B. Motion

Plaintiffs make this motion under CCP Section 2025.450 only, on the basis that after they served a deposition notice on GM to depose its person most qualified, GM failed to produce such a person at the scheduled deposition date. Plaintiffs make this motion  without consideration of a threshold requirement of CCP Section 2025.450, namely, that the non-appearance has occurred without properly served objections to the notice of deposition. Here, that is not the case, as GM did serve objections to the deposition notice on January 5, 2024. (Thomas Decl. ¶ 5, see Exh. C.) Plaintiffs acknowledged receipt of these objections in their motion. Consequently, this motion cannot be granted pursuant to  CCP Section 2025.450.

Notwithstanding this conclusion, and in anticipation of a later motion pursuant to CCP Section 2025.480, the Court provides the below discussion:

Plaintiffs served a notice of deposition on December 15, 2023 as to a January 12 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 January 5, 2024, 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 January 9. (Thomas Decl. ¶ 6, Exh. D.) On January 10, Plaintiffs sent GM a video link to access the remote deposition set for January 12. (Thomas Decl. ¶ 7.) Neither GM nor their person most qualified appeared at the deposition. Plaintiffs then sent a follow-up requesting additional dates for the deposition but received no response. (Thomas Decl. ¶ 10.) GM sent a response letter to the meet and confer on January 17, again objecting to the deposition of their PMQ. (Thomas Decl. ¶ 9, Exh. F.) Counsel for Plaintiffs sent one additional email to request deposition dates on January 18, 2024 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. ¶ 11.) He declares that GM is willing to produce a witness on some of the topics in the deposition notice, but not all. (Thomas Decl. ¶ 12.)

Plaintiffs urge that the information sought in the PMQ deposition notice is relevant to their lemon law claims. (Motion, p. 8: 14-15.) Plaintiffs cite 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.)

In opposition, GM argues that the discovery sought is not all relevant; they urge that the only relevant information is limited to information concerning Plaintiffs’ specific vehicle. (Opposition p. 7: 3-10.) GM does not cite to case law or statute in support of its proposed narrowing of discovery. Additionally, GM urges that Plaintiffs’ deposition notice sought categories and documents that were overly broad. To the extent that the Court considers this objection in the future, the Court notes that the standard for overbreadth is to be ambiguous to the point of being unintelligible, which does not appear to be met here. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) To the extent that GM believes the requests to be seeking information outside of the scope of the lawsuit, the Court encourages parties to meet and confer with each other on this point of contention.

GM also urges that information sought is trade secret and or confidential. GM supports this objection with the declaration of Huizhen Lu. (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.) However, Lu’s declaration is from 2018, before the instant case was even filed. (Yaraghchian Decl. Exh. A p.20, see Reply p. 6:1-13.) To the extent that the Court considers this declaration in support of GM’s contention that the categories in the deposition notice seek trade secret information, a declaration made five years before the instant litigation is of limited support.

Yaraghchian also declares that internal policies and procedures information are trade secrets. (Yaraghchian Decl. ¶ 9.) The declaration of Yaraghchian supports the assertion that the information sought contains trade secrets. (See also Opposition Separate Statement p. 5: 17-p. 6:10.)  However, the Court notes that parties have already entered into a protective order in this case, entered June 13, 2023. (6/13/23 Protective Order.) Accordingly, the privacy/trade secret objections will likely be overruled.

Accordingly, as Plaintiffs failed to demonstrate how CCP Section 2025.450 applies to this motion, 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. ¶¶ 18-20.)

However, as CCP Section 2025.450 only authorizes the Court to compel a deposition to which valid objections were not served, and GM served such objections on Plaintiffs on January 5, the Court declines to issue monetary sanctions.

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