Judge: Michael D. Washington, Case: 37-2023-00037051-CU-BC-NC, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 02, 2024

05/03/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00037051-CU-BC-NC CANRIGHT VS GENERAL MOTORS, LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The Motion to Compel the Deposition of Defendant General Motors LLC's Person Most Qualified brought by plaintiffs William and Kathleen Canright (collectively, Plaintiffs) is GRANTED.

Defendant General Motors LLC (General Motors) is ORDERED to designate a 'person most qualified,' to make that person available for deposition within 45 days and to bring and produce responsive documents at the time of that deposition.

General Motors opposes the motion on grounds that some of the items in the scope of the deposition and requested documents are objectionable. That is not grounds for failing to sit for deposition. On the contrary, the law obliges a deponent to sit for deposition and object at deposition, as needed, to preserve objections for trial. And, if something at the deposition is privileged, the parties have the option of objecting and declining to respond to preserve the issue for a motion, but they must do so with regard to specific inquiries – not an across-the-board approach of failing to comply with a notice of deposition.

The Court is mindful that the date being set for deposition is relatively short. In so exercising discretion to set the deposition date, the Court first notes that standard practice allows for a deposition to be noticed as soon at 10 days. Beyond that, the Court also notes that the instant issue is one that appears to have arisen again and again – albeit in other litigation – by the exact same defendant. The Court is aware of its own docket, but to formally raise the issue, the Court expressly, and on its own motion, takes judicial notice of the publicly-available record and files in the following cases pursuant to Evidence Code § 451, et seq.: --McMullen v. General Motors, LLC (22-15729) (McMullen) --GeoCon Leasing Services v. General Motors, LLC (22-43463) (GeoCon) --Elder v. General Motors, LLC (23-17840) (Elder) In McMullen, this Court granted a Motion to Compel Deposition of Person Most Qualified and made the following notations: ...it appears that General Motors' strategy here was to simply respond: 'GM will not produce a witness at the date and time but will produce a witness at a mutually convenient time and place.' [Citation.] The discovery code does not contemplate a party unilaterally refusing to appear for a properly noticed deposition. Moreover, in terms of good faith negotiation, simply referencing a 'mutually convenient time and place' is insufficient – General Motors did not propose any specific dates during which it could make its 'person most qualified' available for deposition when standard practice (and good faith negotiation) Calendar No.: Event ID:  TENTATIVE RULINGS

3107721 CASE NUMBER: CASE TITLE:  CANRIGHT VS GENERAL MOTORS, LLC [IMAGED]  37-2023-00037051-CU-BC-NC would generally require a proposal of three dates so that the propounding party could select one. As it stands, General Motors' unilateral refusal to appear does not comply with the code and does not demonstrate good faith in trying to comply with the code. (McMullen, ROA 35, dated December 9, 2022 (emphasis in original).) In GeoCon, this Court granted a Motion to Compel Deposition of Person Most Qualified and made the following notations: ...the Court, being readily familiar with its own docket, recognizes the argument made in the instant motion as being virtually the same as the argument made in the previous case of McMullen v. General Motors, LLC (22-15729)... That case involved the same lawyers (Cline APC for the plaintiff, and Erskine Law Group APC for the defendant), and involved the same named manufacturer defendant: General Motors LLC. As such, there is a 'cookie cutter' aspect to the instant motion that is becoming apparent.

The last time this motion was presented, this Court included the same language as above... it now appearing from the repetition of this problem that General Motors is failing to appear for depositions routinely as a matter of practice and policy – rather than as a matter of circumstance and scheduling. The Court finds this troubling.

Moreover, as attorney fees are generally to be awarded in lemon law cases to a successful plaintiff, the compensatory aspect of the discovery code's fee-shifting statute provides little incentive for General Motors' counsel to work with Plaintiff's counsel to avoid the added costs of going through the process of bringing a motion to compel. Should the Court continue to see routine, boilerplate motions identifying this exact same problem and defending on grounds that a plaintiff 'unilaterally' set a deposition date, the circumstances may present a scenario in which it is appropriate to exercise discretion to move beyond the 'lesser sanctions first' approach typically utilized in discovery and perhaps award sanctions above and beyond mere monetary sanctions, as the awarding of monetary sanctions seems to have limited impact in terms of discouraging what is becoming routine behavior by General Motors and its counsel. (GeoCon, ROA 49, dated October 13, 2023) (emphasis in original) (bold added).) The moving party in this case has not requested monetary sanctions and has submitted a proposed order requesting that the deposition take place within 45 days. At the present time, the Court will only grant the motion as requested and will refrain from imposing any additional measures at this time.

To be clear, the Court's view of the instant motion, and it progeny, is that General Motors has the discovery process backward – it seeks to first litigate its objections via motion practice and then sit for deposition when the self-executing nature of the discovery process contemplates that General Motors first have its 'person most qualified' sit for deposition, make objections there in real time, and only after that exercise should the parties come to court via motion practice to seek resolution of disputes that arose at the deposition. This backward approach is significantly taxing on judicial resources, causes unnecessary delays in litigation, and 'churns' the legal work at issue.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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