Judge: Michael Shultz, Case: 21CMCV00285, Date: 2023-12-19 Tentative Ruling
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 21CMCV00285 Hearing Date: February 27, 2024 Dept: A
21CMCV00285 Augusto Barco-Robledo v. General Motors
Tuesday, February 27, 2024, at 8:30 a.m.
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges
that Defendant issued a written warranty to Plaintiff in connection with Plaintiff’s
purchase of a vehicle made and distributed by Defendant, General Motors, LLC
(“GM”). The vehicle developed widespread defects that GM failed to repair
within a reasonable number of attempts and refused to repurchase the vehicle. Plaintiff
alleges violations of the Song-Beverly Consumer Warranty Act.
II. ARGUMENTS
Plaintiff argues that
Defendant failed to comply with the Court’s initial order to produce a person
most knowledgeable and documents at deposition. Defendant partially complied by
responding to certain categories. Defendant also failed to comply with a second
court order requiring Defendant’s compliance with the first order. Plaintiff
files this third motion to impose the $500 per day sanction, compel Defendant’s
compliance and alternatively, impose evidentiary, issue and/or terminating
sanctions.
In opposition, GM
argues it produced a PMQ on January 23, 2024. Plaintiff sent one email stating
the testimony was insufficient without making further attempts to meet and
confer. GM contends it produced documents in compliance with the court’s order.
In reply, Plaintiff
argues that Defendant has blatantly disobeyed this court’s order by producing
documents limited to certain categories, produced a witness with limited or no knowledge
of the subjects at issue, and instructed the witness not to answer questions,
all of which warrant an additional order to comply and imposition of sanctions.
III.
DISCUSSION
A. Procedural background
On September 15, 2022, the Court granted
Plaintiff’s motion to compel Defendant’s further discovery responses (M.O.
9/15/22.) Defendant was ordered to serve
verified, code-compliant responses and production of documents within 10
calendar days of the court’s order and provide a privilege log where applicable.
(Id.) Defendant’s request to limit the scope temporally and
geographically was denied. (Id.)
On July 27, 2023, the Court granted
Plaintiff’s motion to compel the deposition of Defendant’s PMQ by June 13, 2023,
“to testify on the topics identified in Plaintiff’s Amended Notice of
Deposition within 30 days without limitation or condition.” (M.O. 7/27/23). Plaintiff
had been attempting to take the deposition since January 25, 2022. (Id.)
On December 19, 2023, the court granted
Plaintiff’s motion to compel Defendant’s compliance with the July 27, 2023,
order requiring Defendant to produce a PMQ on categories identified in
Plaintiff’s notice. (M.O. 12/19/23.) The court found that Defendant ignored the
30-day deadline to produce a witness, and instead offered “global” deposition
dates to Plaintiff in this and other cases which resulted in undue burden,
expense, and annoyance. The court declined to grant the alternative request for
terminating, issue and /or evidentiary sanctions opting to impose less severe sanctions
of $500 for each day that Defendant did not produce a witness after the 10th
day. (Id.)
The Court can impose sanctions, including
issue, evidentiary or terminating sanction if a party or party-affiliated
deponent fails to obey an order compelling attendance, testimony, and
production. (Code Civ. Proc., § 2025.450.) In lieu of or in addition to, the
Court can impose monetary sanctions.
B. The January 23, 2024, PMQ Deposition
The
Court determined that Plaintiff’s document requests for internal investigations
and analysis of the defects, and warranty and vehicle repurchase policies,
procedures, and practices were relevant and discoverable. (Crandall
declaration, Exhibit 2.) The parties also participated in an Informal Discovery
Conference with the Court on May 20, 2022. (Id. ¶ 11.) The Court ordered Defendant to respond to
this document request on September 15, 2022. ((Id.) ¶ 13.)
Plaintiff sought the deposition of
Defendant’s PMQ, regarding repair history and records of the vehicle, warranty
and vehicle repurchase polices, all documents previously produced, and internal
investigation and analysis. (Mot. filed 6/13/23, 1:11-16.) The court ordered Defendant to produce a
witness, and thereafter, ordered Defendant’s compliance with the original order,
and imposition of daily sanctions.
Despite the court’s clear order requiring
Defendant to produce a witness with knowledge of the specific categories raised
by the motion “without limitation or condition,” and explaining ad nauseum the
documents’ and testimony’s relevance, and a second order requiring Defendant’s
compliance with imposition of daily monetary sanctions, Defendant limited the
categories of inquiry (1 through 4, 7, and 10) and produced a witness, Bryan
Jenkins, who lacked knowledge of those categories. The witness was unfamiliar
with internal investigations and analyses of the defect at issue, customer
assistance complaints, or of the documents produced at the deposition, or how
those documents were created, or how a vehicle was evaluated. (Supp. Declaration, Confidential Transcript,
80:11-85.)
Defense counsel instructed the witness
not to answer, asserting attorney-client privilege. Defense counsel then
allowed the witness to answer unless the matter concerned privileged
information, which the witness was required to unilaterally determine although
defense counsel also instructed the witness not to answer lay questions on
grounds the answer involved a legal conclusion. (Crandall Supp. Decl., Ex. 1, 91:3-23.)
While instructions not to answer
are permitted if the question pertains to privileged matters or the deponent is
being harassed, GM offers no explanation for how the privilege was implicated,
contending that it has complied with the court’s order by limiting the
categories of inquiry and producing an unqualified witness. (Stewart v. Colonial Western
Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1015.)
Moreover, defense
counsel, Ms. Pappas’s, contention that the court did not order a witness on “specific
categories” is contrary to the two orders requiring GM to produce a witness
knowledgeable on all the categories raised by Plaintiff’s motion. (Crandall
Supp. Decl. 2/20/24, Ex. 3, .pdf page 22, e-mail of 2/6/24.) This evidence
conflicts with Ms. Pappas’ declaration that “GM is willing to work with
Plaintiff” to schedule depositions on the remaining categories, which is not
supported by the emails submitted by Plaintiff. (Pappas Decl., ¶ 11.)
GM faults
Plaintiff for only sending one email to claim that the PMQ was insufficient,
and that Plaintiff should have made further attempts. (Pappas decl., ¶ 11.) Plaintiff
has been attempting to schedule this deposition since January 25, 2022. (Min.
Ord. 7/27/23, page 2.) Plaintiff has still not obtained testimony from a
witness knowledgeable about any category raised, or who can provide foundation
and authentication for the documents Defendant produced.
Two years of
efforts to meet and confer, including conferences with the court, three motions
concerning this issue, two orders compelling the production of a PMK witness, and
imposition of daily monetary sanction of $500 have not resulted in the desired
effect of “encouraging fair
disclosure of discovery to prevent unfairness resulting from the lack of
information.” (Midwife
v. Bernal (1988)
203 Cal.App.3d 57, 64.) .) Instead,
GM raises new hurdles for Plaintiff’s counsel to overcome.
Defendant has
engaged in misuse of the discovery process: using a discovery method in a manner
that does not comply with its specified procedures; employing a discovery
method in a manner or to an extent that causes unwarranted annoyance,
embarrassment, or oppression, or undue burden and expense; failing to respond
or to submit to an authorized method of discovery; making, without substantial
justification, an unmeritorious objection to discovery; making an evasive
response to discovery, twice disobeying a court order to provide discovery; opposing
unsuccessfully and without substantial justification, a motion to compel or to
limit discovery; and failing to confer in good faith. (Cal Code Civ Proc §
2023.010.)
The court previously declined to impose issue,
evidentiary, or terminating sanctions, in furtherance of the principle that
sanctions should be “appropriate to the dereliction,” and tailored to
accomplish the discovery sought. (Do It Urself
Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35.) The imposition of terminating
sanctions may be imposed “as a first measure in extreme cases, or where the
record shows lesser sanctions would be ineffective.” (Id. at
191–192.)
GM’s repeated
misconduct over the course of two years has established that GM’s noncompliance
with its discovery obligations or with the court’s orders are willful and that
less severe measures have not deterred the misconduct.
Accordingly,
the court GRANTS plaintiff’s request for monetary sanctions for every day
Defendant failed to comply by producing a person most knowledgeable on all
categories on January 23, 2024. The
court imposes monetary sanctions of $17,500 ($500 per day x 35 days) from January
23, 2024, to February 27, 2024.
Additionally, the
court sets an Order to Show Cause why the court should not impose an additional
$1,000 sanction payable to the Plaintiff and reportable to the State Bar, on
grounds defense counsel, Ms. Pappas, did not meet and confer in good faith with
respect to the document request served with the Notice of Deposition. Defendant
produced a witness pursuant to only limited categories, and there is no showing
that Defendant complied with the document request in part or at all. Co-defense
counsel, Xylon Quezada, interposed improper and unsubstantiated objections and
instructions not to answer. (Code
Civ. Proc., § 2023.050.)
Given the
extreme misconduct, the court GRANTS the alternative request for imposition of issue
sanctions and orders that Plaintiff’s prima facie case is determined against GM,
and GM is precluded from introducing any evidence at trial controverting the following
issues: (1) the vehicle had a nonconformity covered by the express warranty
that substantially impaired the use, value or safety of the vehicle (the
nonconformity element); (2) the vehicle was presented to an authorized
representative of the manufacturer of the vehicle for repair (the presentation
element); and (3) the manufacturer or his representative did not repair the
nonconformity after a reasonable number of repair attempts (the failure to
repair element). " (Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)
IV.
CONCLUSION
Based on the
foregoing, Plaintiff’s alternative motion for sanctions is GRANTED. Defendant
is ordered to pay Plaintiff and counsel $17,500 in monetary sanctions within 10
days. The court orders issue and
evidentiary sanctions as described above, and the Court sets an OSC re: Additional
Sanctions of $1,000 against defense counsel, Alexandria Pappas, for