Judge Ralph C. Hofer, Case Number: 23GDCV00934, Date: 2023-10-27 Tentative Ruling

Plaintiff Keith Fearnside alleges that in January of 2021 plaintiff purchased a new 2021 Chevrolet Suburban, which was warranted by defendant General Motors LLC, with defendant providing an express warranty and an implied warranty, including warranties that the vehicle was fit for the ordinary purposes for which vehicles are used and that it was acceptable in the trade.

Plaintiff alleges that the vehicle was delivered to plaintiff with nonconformities to warranty, including the liftgate, sidesteps, rattle noises, transmission, water pump, oil leaks and other defects.

Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the applicable warranty periods. Plaintiff alleges that plaintiff presented the vehicle to defendant’s authorized facilities for repair of these nonconformities on at least seven occasions, and that those facilities verified the concerns and performed several repair attempts, but, ultimately, many if not all of the problems remain unrepaired.

Plaintiff Keith Fearnside filed a motion to compel the deposition of the PMQ of defendant General Motors, LLC (GM), which was heard on October 27, 2023. The motion was denied without prejudice pursuant to the court’s Addendum to Case Management Conference Order (Song-Beverly Litigation), and the parties were ordered to meet and confer in good faith concerning compliance with the Order. The parties were also ordered:

Plaintiff now brings this renewed motion, indicating that following the hearing and this court’s previous order, plaintiff’s counsel sent an email to counsel for defendant requesting dates for the deposition on October 30, 2023, and again on November 2, 2023, and again on November 6, 2023, but no dates were offered. [Agyeman Decl., paras. 6-8, Exs. 8-10].

On November 14, 2023, plaintiff’s counsel emailed a formal letter requesting that a deposition date be provided by close of business on November 20, 2023, but there was still no response. [Agyeman Decl., para. 9, Ex. 11].

Defendant in opposition does not dispute this chronology but argues that plaintiff did not meet and confer in good faith but rushed to file this motion before counsel for GM could adequately consult with GM’s PMQ to find an open date within plaintiff’s parameters. A review of the correspondence from plaintiff’s counsel shows that plaintiff’s counsel persisted in requesting a date and that counsel for defendant failed to even attempt to respond from the date of the hearing in October to the date the motion was filed in December, six weeks later. The deposition was originally noticed in June of 2023, and certainly defendant’s counsel has had time to coordinate with the PMQ since then. Moreover, the parties had been ordered by the court to engage in good faith meet and confer concerning the deposition, so the repeated failure to respond to meet and confer efforts by plaintiff was a violation not only of defendant’s discovery obligations but of this court’s order.

Defendant in opposition indicates that “GM will offer its PMQ for deposition on all six Categories in dispute, appropriate to the facts and issues of this particular case and will produce relevant and responsive documents before any PMQ deposition, on a mutually agreeable date.” [Opposition, pp. 4-5].

The motion accordingly is granted, at the concession of defendant in the opposition. The parties are also ordered to conduct the subject discovery in accordance with the court’s previous minute order of October 27, 2023, and in accordance with the Standing Order Re Discovery (Song-Beverly Litigation) (Order) applicable to Song-Beverly Litigation, now posted and available on the Los Angeles Superior Court website in connection with this Department, Glendale Courthouse, Department D. The Order was originally signed by the court on January 24, 2023, and revised and again signed on January 11, 2024.

The parties are also directed to the Notice to All Counsel Re: Lemon Law Cases for Department D, entitled Customary Rulings Re Document Requests (Song Beverly Litigation) (Notice). That Notice provides:

“When the court is faced with a discovery dispute in a Song-Beverly case, the court will usually order that the plaintiff and defendant provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side:

1. Defendant shall produce the “Warranty Policy and Procedure Manual” published by Defendant and provided to its authorized repair facilities, within the State of California, for the period of [date of purchase] to present.

2. Defendant shall produce any internal analysis or investigation regarding defects alleged in plaintiff's complaint in vehicles for the same year, make and model of the subject vehicle. This includes Recall Notices and Technical Service Bulletins. Defendant is not required to do a search of emails.

3. Defendant shall produce any customer complaints relating to defects alleged in plaintiff’s complaint in vehicles purchased in California for the same year, make and model of the subject vehicle.

4. Defendant shall produce all documents evidencing policies and procedures used to evaluate customer requests for repurchase pursuant to the Song-Beverly Consumer Warranty Act, for the period of [date of purchase] to present.

The court also notes that there is so far no stipulated protective order on file in this matter, so pursuant to this court’s previous order, the court again orders that if a party believes that a protective order is warranted, the procedures outlined in the Order shall be followed for entering into such a protective order.

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

CCP § 2023.010 (d) provides that misuse of the discovery process includes, “Failing to respond or to submit to an authorized method of discovery.” CCP § 2023.030(a) authorizes the imposition of monetary sanctions against a party and its attorney for misuse of the discovery process.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Here, the court orders the deposition to proceed under CCP § 2025.450, and the court “shall” impose the requested monetary sanction. Defendant in opposition argues that plaintiff’s counsel has litigated enough cases with GM to know that finding a mutually agreeable date and time for deposition can take some time. As discussed above, counsel for defendant has had since June of 2023 to provide a date or to at least have responded to meet and confer efforts explaining the timeline for obtaining a date. The motion was evidently necessary to draw defendant’s attention to this matter and compliance with this court’s previous order. It is not unjust to shift the expense of having had to make this motion to defendant, when defendant’s conduct made the motion necessary. Defendant has failed to meet its burden to show substantial justification or injustice. Sanctions are awarded.

Plaintiff Keith Fearnside’s Renewed Motion to Compel the Deposition of Defendant General Motors LLC’s Person Most Qualified is GRANTED. At the concession by defendant in the opposition, Defendant General Motors, LLC is ordered to designate and produce witness(es) to appear for deposition and to give testimony as to the matters requested in Plaintiff Keith Fearnside’s First Amended Notice of Deposition of Defendant General Motors, LLC’s Person(s) Most Qualified, served on July 3, 2023, on or before May 31, 2024.

The deposition and production shall be conducted in accordance with this Court’s Standing Order Re Discovery (Song-Beverly Litigation), signed and entered by the Court on January 24, 2023 as revised, signed and entered on January 11, 2024, as well as in accordance with this Court’s Notice to All Counsel Re: Lemon Law Cases for Department D, Customary Rulings Re Document Requests (Song Beverly Litigation), and in accordance with this Court’s previous minute order of October 27, 2024, and with this minute order.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred for the work performed in connection with the pending motion is $2,625.00 (5.0 hours @ $525/ hour) [5 hours requested] [Amount Requested $2,625.00], which sum is to be awarded in favor of plaintiff Keith Fearnside and against defendants General Motors, LLC, payable within 30 days. CCP §§ 2025.450 (g)(1), 2023.010 (d) and 2023.030 (a), and CRC Rule 3.1348(a).

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