Judge: Michael Shultz, Case: 22CMCV00060, Date: 2023-07-20 Tentative Ruling
Case Number: 22CMCV00060 Hearing Date: July 20, 2023 Dept: A
22CMCV00060
Anselma Olmedo De Ceja v. General Motors, LLC
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that
Plaintiff purchased a 2020 Chevrolet Silverado 1500 made and distributed by
Defendant. The vehicle suffered from widespread defects that Defendant failed
to repair within a reasonable number of attempts in violation of the
Song-Beverly Consumer Warranty Act.
II.
ARGUMENTS
Plaintiff requests an order to
compel Defendant to produce its person most qualified (“PMQ”) to testify on the
categories identified in Plaintiff’s Notice of Deposition and Demand to Produce
Documents served on May 5, 2022. Defendant objected and stated no witness would
be produced. Defendant did not respond to two letters from Plaintiff requesting
deposition dates. Defendant finally responded and refused to produce its
witness until Plaintiff provided dates for Plaintiff’s deposition. While
Defendant subsequently reassured Plaintiff that a witness would be produced,
Defendant has not provided a list of available dates.
In opposition, Defendant states it
agreed to produce a witness on all categories pertinent to Plaintiff’s vehicle.
Many of the categories identified in the notice are irrelevant and/or
overbroad. Plaintiff is acting in bad faith and ignored her obligations meet
and confer. Plaintiff unilaterally scheduled the deposition. Plaintiff did not
file a separate statement.
Plaintiff argues in reply that
documents are not at issue in this motion. Plaintiff was not required to provide
a separate statement. Defendant has no defense for failing to produce its PMQ.
III.
DISCUSSION
If a party fails to appear for a
deposition after service of a deposition notice, without having served a valid
objection, the party giving notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any
document or tangible thing described in the notice. (Code Civ. Proc., § 2025.450.) The moving
party must show good cause for the deposition and attempt to meet and confer. (Id.)
Plaintiff
has been attempting to take Defendant’s PMQ deposition since May 5, 2022.
Defendant has not produced a witness in over a year. Defendant objected to
every category of inquiry in Plaintiff’s deposition notice on grounds that the
categories were ambiguous, involved trade secret or propriety information, irrelevant,
protected by attorney-client privilege, or were burdensome and oppressive.
However, Defendant agreed to produce a witness on limited categories and with
restrictions (Lara Rogers Decl., Ex. 3.) Defendant objected to all categories
of documents requested. (Id.)
After
Plaintiff attempted three times to obtain deposition dates, defense counsel stated
that dates were offered for October, however, Defendant wanted to “work on
first agreeing to categories.” (Rogers Decl., Ex. 7.) Defendant would then look
for a date for Defendant’s PMQ, but only after Plaintiff sent proposed dates
for her deposition. (Id.) Notably Defendant did not make any attempt to
justify its objections or any categories purportedly at issue.
Plaintiff
re-served a deposition notice after receiving no prospective dates from
Defendant. (Rogers Decl., Ex. 9.) Defendant asserted the same objections to
every category and document request. (Id., Ex. 10). Plaintiff then sent
a lengthy meet and confer letter to justify the deposition, categories of
inquiry, and document request. (Id. at Ex. 11.) Defendant responded it
would produce witnesses only as to specific categories. (Id. Ex. 12.)
Plaintiff
proposed prospective dates on November 28, 2022. (Id. at Ex. 13.) Defendant
did not respond despite Plaintiff’s continued attempts to obtain dates. After Plaintiff
sent another Notice of Deposition, Defendant again flatly objected to all
categories and document requests. (Id. at Ex. 14-17). After nearly 14 months of waiting for
Defendant to provide dates, Plaintiff remains in no better position than she
was in May of 2022. Defendant’s contention that Plaintiff ignored her
obligations to meet and confer is not supported by the record.
Defendant
offers no substantive or persuasive argument for failing to produce its witness
even after Plaintiff agreed to the limited categories. It is not for Defendant
to determine what information Plaintiff “needs,” nor has Defendant explained
its conduct for unilaterally limiting Plaintiff’s inquiry without moving for a
protective order.
As
for requiring Plaintiff to first offer dates for Plaintiff’s deposition before Defendant’s
PMQ deposition, there is no discovery priority. Discovery can be used in any sequence. (Code Civ. Proc., § 2019.020.)
The court may establish a timing sequence for discovery to occur for the
convenience of the parties and witnesses, but only upon a showing of good
cause. (Id.) Defendant has not shown any good cause. The party who
secures discovery first derives certain advantages; that party should not be
deprived of the advantages that normally flow from prompt action. (Poeschl v. Superior Court In and For Ventura County (1964) 229 Cal.App.2d 383, 386.)
Defendant did not respond in
good faith to Plaintiff’s numerous efforts to meet and confer. For the first
time, Defendant provides reasons for its objections in opposition to this
motion. None have merit.
To prevail on a claim for
violation of the Song-Beverly Consumer Warranty Act (“the Act”) Plaintiff’s
burden is to establish that “(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.)
Plaintiff’s objections to the declaration of Ryan Kay
Both
objections are SUSTAINED. What other courts have determined in cases unrelated
to this case is irrelevant and not binding.
Categories 1-4, 7, 10, and 20
Defendant
contends it has already agreed to produce a witness with respect to these
categories. However, Defendant unilaterally imposed its own conditions and limitations
and agreed to discuss only “relevant and nonprivileged aspects.” (Rogers Decl.,
Ex. 10, 4:2-9, for example.) Defendant did not obtain a protective order.
Categories 5-6, 8-9, 11-12
Plaintiff is
entitled to “other vehicle evidence” which are documents extending to vehicles
of the same make and model. The inquiry is relevant because Plaintiff must
establish Defendant’s knowledge of the defect in the same vehicle. The Act
requires the manufacturer to designate service and repair facilities throughout
the state which enables the manufacturer to become aware of every failed repair
attempt. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 303303;
Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154 [Testimony about a defective
transmission installed in plaintiff’s truck and other trucks and what the
manufacturer did to notify dealers and technicians about problems with this
transmission model was “certainly probative and not unduly prejudicial."].)
Defendant
provides no authority to support limiting Plaintiff to the discovery of information
relating solely to her vehicle.
Category No. 13
Plaintiff
is entitled to inquire about Defendant’s third-party dispute resolution program
because Plaintiff has statutory remedies in the event such a program exists. (Civ. Code, § 1793.22.)
Defendant’s contention that it has no record of Plaintiff having participated
in such a program is evasive and not a basis for precluding a deposition on
this topic.
Categories 5, 16-19
With
respect to this category, Defendant contends that documents concerning internal
policies and procedures concerning Defendant’s handling of other consumer
warranty claims and requests for repurchase are irrelevant. This information is relevant to Plaintiff’s
burden of establishing Defendant’s purported non-compliance with its
obligations under the Act to reasonably attempt to repair the vehicle. (Oregel,
supra at 1101.) This category is also relevant to the recovery of civil penalties
if the buyer can show that “the manufacturer's failure to comply was willful.
The penalty is important ‘as a deterrent to deliberate violations. Without such
a provision, a seller or manufacturer who knew the consumer was entitled to a
refund or replacement might nevertheless be tempted to refuse compliance in the
hope the consumer would not persist, secure in the knowledge its liability was
limited to refund or replacement.’” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.)
To
establish this violation, the jury can consider whether “(1) the manufacturer
knew the vehicle had not been repaired within a reasonable period or after a
reasonable number of attempts, and (2) whether the manufacturer had a written
policy on the requirement to repair or replace. (Id. at pp. 185-186.)” (Jensen
at 136.)
IV.
CONCLUSION
Plaintiff
did not request imposition of sanctions, and therefore, none are rewarded.
Based on the foregoing, Plaintiff’s motion is GRANTED. Defendant is ordered to
produce a witness or witnesses qualified to testify on the topics identified in
Plaintiff’s Notice of Deposition and to comply with the Demand to Produce
Documents at Deposition within 10 days without limitation or condition.