Judge Ralph C. Hofer, Case Number: 24NNCV05046, Date: 2025-03-07 Tentative Ruling

Plaintiffs Jesus Osuna alleges that in January of 2023 plaintiff purchased a Chevrolet bold EV, which was warranted by defendant General Motors LLC (GM), with defendant providing an express warranty and an implied warranty, including an implied warranty of fitness.

Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the applicable warranty period. Plaintiff alleges that plaintiff delivered the vehicle to defendant’s authorized facility for repair of the nonconformities on numerous occasions, but that defendant has been unable or has refused to conform the subject vehicle to the applicable warranties after a reasonable number of attempts.

Plaintiff alleges that notwithstanding plaintiff’s entitlement to a repurchase under the Act and defendant’s knowledge of that entitlement through its internal repair and warranty records, defendant has intentionally refused to comply with its obligations under the Act to repurchase the subject vehicle and make restitution.

The moving papers show that plaintiff has served defendant with a series of deposition notices, beginning on November 4, 2024, and that defendant GM served written objections to the original notice, the First Amended Notice and the Second Amended Notice. [Agyeman Decl., paras. 5, 6, 8, 9, 11, 12; Exs. A, B, D, E, G, H].

Plaintiffs indicate that despite numerous meet and confer efforts, defendant GM continues to maintain its objections to the categories and document requests and refuses to produce its witness. [Agyeman Decl., para. 13].

The most recent notice, the Second Notice of Deposition, served on December 11, 2024, setting the deposition for January 7, 2025, was responded to by objections, and no agreement to produce the witness. [Agyeman Decl., paras. 11, 12, Exs. G, H].

“(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..., 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.”

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event the deponent shall designate and produce at deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

The moving papers sufficiently establish that defendant, a party to the action, for its person most qualified to testify, was served with deposition notices, and that the objections to those notices objected to the selected deposition dates, but defendant has failed since November of 2024 to provide mutually agreeable dates for the deposition, and has failed to appear for examinations as noticed. [Agyeman Decl., paras. 5-13]. Plaintiff is accordingly entitled to an order compelling defendant’s attendance and testimony.

(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.”

The memorandum argues that there is good cause for production of the requested documents because they go to the essential elements of plaintiffs’ express and implied warranty and damages claim. Plaintiff argues that the document requests are directly related to plaintiff’s claims, and universally discoverable in lemon law cases, and consistent with this court’s standing order. The requests seek documents pertaining to the subject vehicle, and other documents which appear pertinent to the lawsuit.

Defendant in the opposition argues that this motion was not necessary as GM already has produced documents directly responsive to plaintiff’s discovery requests and has agreed to produce a witness to testify on six or seven of the categories at issues in this motion, but plaintiff has refused to proceed and failed to meet and confer in good faith. The opposition relies on the responses to the Second Amended Notice, which states that the PMQ would be produced an a mutually agreed upon time, but did not specify a date, as well as the declaration of counsel which now states, “GM offers Plaintiff’s firm six depositions a month- more than enough for their inventory.” [Dobson Decl., paras. 9, 11]. There is no indication that any date was ever offered for a PMQ deposition in this particular action.

It is not clear why defendant has not offered a single specific date in the many months before this motion was filed, and even in the opposition itself. The motion accordingly is granted and the deposition and production of documents ordered. Any argument that documents already have been produced is rejected by the court, as plaintiff is entitled to documents responsive to the current form of discovery, and so that the deponent can be examined with respect to the documents produced. Any objection that the deposition was unilaterally set has not been justified by the opposition, given the failure to provide any proposal at all for a mutually convenient date.

In addition, this matter is subject to the Addendum to Case Management Conference Order (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 signed and entered by the Court on January 24, 2023 and was revised, signed and entered on January 11, 2024

Pursuant to that Order, “any formal discovery propounded and currently pending or outstanding by a party in this matter prior to the date of this CMC Order is stayed pending further order of the Court.”

The Order sets forth the following provision concerning discovery in Song-Beverly matters which appear to address the discovery disputes raised by the current motion. With respect to depositions, the Order provides:

4. Deposition: Within the time limits allowed by law. Defendant may depose plaintiff, and plaintiff may depose the person most knowledgeable (PMK) as to up to 5 categories of information, plus a deposition of the PMK as to why the subject vehicle was not repurchased, in addition to depositions of any experts identified by the parties, after a formal demand and exchange of expert witness information, per CCP § 2034. Parties shall meet and confer as to whether there is a need to take any additional depositions. Any additional depositions may only be noticed and taken by stipulation and/or court order (via motion upon showing of good cause).

If a deponent resides out of state, the deposition may be taken by video conference or telephone. The parties will not be required to travel to California, and the attorneys will not be required to travel out of state.”

“Production of Documents: Within 60 days of service of this Order both plaintiff and defendant shall provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side(s):

a. Purchase or lease contracts concerning the subject vehicle, including any associated documents reflecting OEM or aftermarket equipment installed at the dealership, ELWs or service contracts, and any other writings signed by the plaintiff at the point of sale.

f. Warranty Policy and Procedure Manual or similar policies or claim-handling procedures published by Defendant from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

g. Defendant’s written statements of policy and/or procedures used to evaluate customer requests for repurchase or replacement pursuant to “Lemon Law” claims, including ones brought under the Song-Beverly Consumer Warranty Act, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

h. A list of or compilation of customer complaints in defendant’s electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff, in vehicles purchased in California for the same year, make and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items. The list provided by defendant may be in the chart or spreadsheet format, and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers’ reported complaint, but shall not include the other customers’ names, addresses, phone numbers, e-mail addresses, or other personal identifying information.

If a party believes any of this information should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same. The default will be the standard Protective Order provided by the LASC in its website.

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 notes that the Order provides for PMK depositions for up to 5 categories of information, plus a deposition of the PMK as to why the subject vehicle was not repurchased. The Second Amended Notice of Deposition designates eight matters on which the PMQ is to be examined, but two of them appear to be directed to the repurchase or replacement issue. [See Ex. B, Matters Nos. 1, 6]. This results in one matter being beyond the scope of the court’s order. There has been no motion made by plaintiff to show good cause for more than six subjects. The court will hear at the hearing which of the five categories plaintiff will be pursuing at the deposition, along with the two issues as to why the vehicle was not repurchased. Defendant is ordered to designate a person or persons to appear and testify on the designated subjects on a date certain within the next twenty days.

With respect to the documents requested, the production is to be made and the deposition conducted in accordance with the Order and Notice. If there is some further dispute concerning the production of documents or the conduct of the deposition, the parties must comply with the Order and Notice, and meet and confer in good faith concerning any outstanding discovery in light of the Order and Notice, and, if necessary, pursue a further motion which must be accompanied by a separate statement reflecting the then current status of any discovery disputes, including in that separate statement as to each request and response any applicable language of the Order and Notice.

Defendant also appears to argue that plaintiff’s discovery here implicates trade secret and propriety information of GM. It does not appear from the file that the parties have yet entered into a protective order. The court notes that if either party requires a protective order, the procedures are addressed in the Order, at section 2, subdivision (k), above. The entry of such a protective order should make it unnecessary for the parties to assert any objections that the discovery seeks confidential, proprietary or trade secret information.

“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.”

Defendant has failed to show how defendant was substantially justified in delaying many months and still not providing a date for the PMQ deposition. Defendant in opposition argues that the request for sanctions is groundless, as plaintiffs’ motion is baseless, which it clearly is not, but will be granted. Defendant also argues that GM has agreed to provide a PMQ deposition, and it is simply a matter of working with the witness to provide dates. There is no explanation why this could not have been done in the many months since the deposition was first noticed and avoided the need to bring this motion. Sanctions will be awarded.

The sanctions sought by plaintiffs are $2,900.00. These appear high for a motion of this nature, which was largely cut and pasted from an existing template, and does not follow the procedures set forth in the standing orders in place in this matter designed to streamline this discovery. The sanctions awarded are adjusted accordingly as follows: Four hours total attorney time at $475.00 per hour for total attorney’s fee of $1,900.00.

Defendant General Motors LLC is ordered to designate and produce witness(es) to appear for deposition and to give testimony on a mutually convenient date and time as to the matters requested in Plaintiff Jesus Osuna’s Second Amended Notice of Deposition of Defendant General Motors, LLC’s Person(s) Most Qualified, with Production of Documents served on December 11, 2024, no later than April 11, 2025, limited to the following five designated categories of information, plus deposition of the PMK as to why the subject vehicle was not repurchased (categories Nos. 1 and 6).

Good cause appearing, the deponent(s) is (are) also ordered to produce for inspection at the deposition any and all materials described in the subject notice which are consistent 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 materials which are consistent with this Court’s Notice to All Counsel Re: Lemon Law Cases for Department D, Customary Rulings Re Document Requests (Song Beverly Litigation).

If a party believes any of the information requested in discovery should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same. The default will be the standard Protective Order provided by the LASC in its website.

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 and costs incurred for the work performed in connection with the pending motion is $1,900.00. (4 hours @ $475 per hour and no hours at $525 per hour) [5 and 1 hours requested] [Amount Requested $2,900.00], which sum is to be awarded in favor of plaintiff Jesus Osuna and against defendant General Motors LLC, payable within 30 days. CCP §§ 2025.450 (g)(1), 2023.010 (d) and 2023.030 (a).

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. Department D is now requiring either live or VIDEO appearances, not audio appearances. Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED.