Judge Margaret L. Oldendorf, Case Number: 23AHCV00569, Date: 2023-09-15 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 23AHCV00569, Date: 2023-09-15 Tentative Ruling

This action alleges violations of the Song-Beverly Act. Jessica Vasquez (Vasquez) sues General Motors, LLC (GM) for defects with the 2019 Chevrolet Silverado she purchased in 2019. Vasquez alleges defects to, among other things, the brake system, radio, engine, check engine light, transmission, hard shift, and camera.

Before the Court is Vasquez’s motion for an order compelling the deposition of GM’s person most knowledgeable. The evidence before the Court does not establish a non-appearance for any deposition. The motion is therefore denied.

“(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.

(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.”

Section 2025.410(a) provides that any party served with a deposition notice that does not comply with the notice requirements (Section 2025.210 et seq.) waives “any error or irregularity” unless that party objects at least three calendar days prior to the deposition. Subdivision (b) provides that any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

Vasquez seeks an order compelling GM to produce its person most knowledgeable for deposition. In order to obtain such relief, the moving party must show that the deponent received a valid notice of deposition, failed to object, and failed to appear. Further, the moving party must offer a declaration stating that the deponent was contacted to inquire about the nonappearance. Here, that evidence has not been presented.

Moving party’s evidence is provided through the Declaration of Maria Sanjur-Van Brande. Sanjur Van-Brande does not state that GM’s witness failed to appear for deposition; nor that she thereafter “contacted the deponent to inquire about the nonappearance.” This leads the Court to conclude that there was no “nonappearance.” Instead, as reflected in the Sanjur-Van Brande Declaration and exhibits attached thereto, GM responded to the first notice of deposition by raising certain objections. Vasquez’s counsel then reached out to GM’s counsel in an attempt to meet and confer on the objections; and when that did not succeed, Vasquez’s counsel simply served an amended notice of deposition. This pattern repeated.

A well-respected practice guide advises that when a party raises objections and then attends the deposition, the parties can thereafter “deal with the objection by negotiation or further motion, if necessary.” Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2023) ¶8:511. This path provides a method for dealing with objections: they can be raised at the deposition and then form the basis for a motion to compel deposition answers. Such a motion requires a separate statement. California Rules of Court, rule 3.1345(a)(4). Here, while a separate statement was provided, it is unhelpful because there was no failure to answer questions at a deposition.

The only objections that might arguably be waived by attending a deposition concern things like a premature notice of deposition, an incorrect address, or a similar concern regarding the sufficiency of the notice. For example, Section 2025.220 lists the information (address, date, etc.) that must be contained in the notice. GM does not raise any objection to notice; but if it had done so and then had their PMK attend, arguably it would have waived any such irregularity by appearing.

Section 2025.210 requires that a notice of deposition cannot be served fewer than 20 days after service of the summons and complaint. That requirement was met here (although barely).[1] Section 2025.230 requires that the matters on which examination is requested be described with reasonable particularity. GM does raise this as an objection. Since this objection does not concern an arguably waivable defect (like date or address), the objection would be preserved, and could have been raised again at the deposition. If not resolved informally at the deposition, then a motion to compel answers would be appropriate.

In short, on the record before the Court, there has been no nonappearance. Rather, there have been a series of deposition notices, all of which appear to have been aborted.

The motion to compel the deposition of GM’s person most knowledgeable is denied. Vasquez has not demonstrated that GM failed to appear for deposition without objecting, and that Vasquez thereafter contacted GM to inquire about the nonappearance. Vasquez’s request for monetary sanctions is also denied.

No ruling is made on Vasquez’s objections to the Declaration of Darshnik Meet Singh Brar, as the Declaration was not material to the analysis.

The parties are urged to meet and confer in person (or in some other manner) and agree on a date for the deposition.

[1] According to the proof of service on file, Vasquez served GM with the summons and complaint on March 24, 2023. According to the Sanjur-Van Brande Declaration, ¶6 and Exhibit A thereto, Vasquez served GM with a notice of deposition on April 13, 2023 -- exactly 20 days later.