Judge Melvin D. Sandvig, Case Number: 24CHCV00633, Date: 2024-11-05 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 24CHCV00633, Date: 2024-11-05 Tentative Ruling

Case Number: 24CHCV00633 Hearing Date: November 5, 2024 Dept: F47

Dept. F47

Date: 11/5/24 TRIAL DATE: 2/10/25

Case #24CHCV00633

MOTION TO COMPEL DEPOSITION

Motion filed on 10/3/24.

MOVING PARTY: Plaintiffs Pedro Corrales Ochoa and Graciela Jeanette Larios

RESPONDING PARTY: Defendant General Motors, LLC

NOTICE: ok

RELIEF REQUESTED: An order striking Defendant General Motors LLC’s objections and compelling (1) the testimony of Defendant’s Person Most Knowledgeable (PMK) to matters of examination pertaining to 1-3, 6-24, 26-28, 30, and 33 and (2) responses and production of documents pursuant to Plaintiffs’ associated Request for Production of Documents, numbers 1-17, at the time of the PMK deposition.

RULING: The motion is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiffs Pedro Corrales Ochoa and Graciela Jeanette Larios

(Plaintiffs) purchase of a 2017 Cadillac Escalade (the Vehicle) on 2/26/20. The Vehicle was manufactured and/or distributed by Defendant General Motors, LLC (Defendant). Plaintiffs contend that during the warranty period, the Vehicle contained or developed defects, including electrical system defects which resulted in symptoms affecting drivability and reliability. Plaintiffs also contend that they have delivered the Vehicle to Defendant’s authorized repair facilities on numerous occasions for various defects and none of the repairs performed by Defendant’s authorized repair facilities permanently repaired the defects. Additionally, Plaintiffs contend that Defendant knew about the claimed defects through its internal investigation and analysis of customer complaints, warranty data, field service reports, recalls and product evaluations as evidenced by the issuance of Technical Service Bulletins (TSB). Further, Plaintiffs contend that Defendant has failed to adequately compensate them for the Vehicle despite the ongoing defects which have not been successfully repaired within a reasonable number of attempts.

On 3/6/23, Plaintiffs filed this action against Defendant for: (1) Violation of Song-Beverly Act - Breach of Express Warranty; (2) Violation of Song-Beverly Act - Breach of Implied Warranty; and (3) Breach of the Song-Beverly Act Section 1793.2. On 4/6/23, Defendant answered the complaint.

On 7/10/23, Plaintiffs served Defendant with a Notice of Deposition for Defendant’s PMK and requests for production of documents with 8/11/23 as the deposition date. (Yowarski Decl. ¶16, Ex.3). Defendant did not serve any objections to the notice and did not produce a PMK witness. (Id. ¶17).

On 8/16/23, Plaintiffs served an Amended Deposition Notice of Defendant’s PMK for 8/30/23, accompanied by a meet and confer letter. (Yowarski Decl. ¶18, Ex.4). Again, Defendant did not serve any objections or produce a witness. (Id. ¶19).

On 7/30/24, Defendant sent a meet and confer letter titled “Re: Pending PMK Deposition Notices in GM Cases; CCP 2025.410 OBJECTION.” (Yowarski Decl. ¶20, Ex.5). On 7/31/24 and 8/2/24, Plaintiff’s counsel sent a meet and confer letters regarding the scheduling of upcoming depositions based on approaching trial dates and the scope of the depositions. (Id. ¶¶21-22, Ex.6, 7).

Plaintiffs contend that Defendant has failed to participate in the meet and confer efforts regarding the scheduling of the deposition. (Yowarski Decl. ¶¶23-24). Therefore, on 10/3/24, Plaintiffs filed and served the instant motion seeking an order striking Defendant’s objections and compelling (1) the testimony of Defendant’s Person Most Knowledgeable (PMK) to matters of examination pertaining to 1-3, 6-24, 26-28, 30, and 33 and (2) responses and production of documents pursuant to Plaintiffs’ associated Request for Production of Documents, numbers 1-17, at the time of the PMK deposition. Defendant has opposed the motion. A reply, which was due 11/29/24, has not been filed. See CCP 1005(b) (reply due at least 5 court days before the hearing date).

ANALYSIS

Procedural Defects

Plaintiffs have failed to provide clear notice of the relief requested in this motion. See CRC 3.1110(a). In the first paragraph of the notice, as noted above, Plaintiffs indicate that they are seeking an order striking Defendant General Motors LLC’s objections and compelling (1) the testimony of Defendant’s Person Most Knowledgeable (PMK) to matters of examination pertaining to 1-3, 6-24, 26-28, 30, and 33 and (2) responses and production of documents pursuant to Plaintiffs’ associated Request for Production of Documents, numbers 1-17, at the time of the PMK deposition. (See Motion, p.2:5-11). However, at the end of the notice of motion, Plaintiffs indicate that they are seeking “an order (1) striking Defendant’s objections and compelling Defendant to produce a PMK for all matters of examination requested in Plaintiffs’ deposition notice; (2) striking Defendant’s objections and compelling Defendant to produce the documents requested in Plaintiffs’ deposition notice; (3) compelling the production of GM’s PMK and documents within 10 calendar days and (4) imposing sanctions for Plaintiffs’ remuneration and Defendant’s gamesmanship.” (See Motion, p.3:11-16).

Additionally, Plaintiffs’ counsel has failed to properly electronically bookmark the exhibits attached to the declaration filed in support of the motion. CRC 3.1110(f)(4). Although bookmarks appear in the document, they are not linked to the first page of each exhibit as required. Counsel for the parties are warned that failure to comply with this rule in the future may result in matters being continued so that papers can be re-filed in compliance with the rule, papers not being considered and/or the imposition of sanctions.

Merits

CCP 2025.450, the statute on which Plaintiffs base this motion, at least in part, provides in relevant part:

“(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.” (emphasis added)

Although not dated, both Plaintiffs and Defendants contend that the first response to the PMK deposition notices served in this case in July and August of 2023 was a letter/objection sent by Defendant on 7/30/24. (See Yowarski Decl. ¶20, Ex.5; Major Decl. ¶5). The Court notes that the correspondence sent by defense counsel to Plaintiff’s counsel on 5/17/23 could not be in response to the deposition notices served in this case as the deposition notices were not served until months later in July and August of 2023. (See Majors Decl. ¶2).

Since the 7/30/24 letter/objection was sent after the depositions were noticed to take place in 2023, the letter/objection was untimely as objections were required to be served at least three calendar days prior to the date for which the deposition was scheduled. See CCP 2025.410(a). Even if the letter/objection was timely served in relation to the deposition notices in this case, the letter/objection is defective in that it does not specifically address the categories and/or document requests in the deposition notices at issue. Similarly, the separate statements filed in relation to this motion are defective as they do not set forth the text of each request/inspection demand, the text of each response/objection and a statement of the factual and legal reasons for compelling further responses/answers/production as to each matter in dispute. See CRC 3.1345(c). To the extent that Plaintiff contends Defendant failed to respond to the production requests, a separate statement was not required. See CRC 3.1345(b); (Yowarski Decl. ¶17 and Separate Statement, p.14:9-p.21:24).

Based on the foregoing, the Court finds that Defendant failed to appear for the properly noticed deposition pursuant to the notices served in July and August of 2023 because it did not serve a timely and/or valid objection. CCP 2025.450(a). However, the Court also finds that Plaintiff failed to adequately meet and confer as required by CCP 2025.450(b)(2) before filing this motion. Plaintiffs seemingly did not contact Defendant after its failure to produce a PMK for deposition in response to the deposition notices served in July and August of 2023. (See Yowarski Decl. ¶¶16-19). Rather, Plaintiffs waited until after Defendant sent its letter titled “Re: Pending PMK Deposition Notices in GM Cases; CCP §2025.410 OBJECTIONS” approximately a year later on 7/30/24 to address Defendant’s failure to produce the PMK witness in response to the notices served in 2023. (See Yowarski Decl. ¶¶20-21). In response to Defendant’s 7/30/24 letter/objection, Plaintiff sent correspondence which did not address the PMK deposition in this case. (See Yowarski Decl. ¶¶21-22, Ex.6-7).

Since both Plaintiffs’ and Defendant’s counsel indicate a willingness to meet and confer to resolve this discovery dispute informally, the parties must make such efforts by specifically addressing the deposition notices at issue in this case. (See Yowarski Decl. ¶23; Major Decl. ¶9).

CONCLUSION

Based on the foregoing, Plaintiffs have failed to meet their burden of establishing that they are entitled to the order requested at this time. Therefore, the motion is denied.