Judge Ronald F. Frank, Case Number: 24TRCV00193, Date: 2024-08-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV00193, Date: 2024-08-16 Tentative Ruling

Case Number: 24TRCV00193 Hearing Date: August 16, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 16, 2024

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CASE NUMBER: 24TRCV00193

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CASE NAME: Omar Garcia v. General Motors, LLC, et al.

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MOVING PARTY: Plaintiffs, Omar Garcia

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RESPONDING PARTY: Defendant, General Motors, LLC (No Opposition)

TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion to Compel Deposition of Defendant's PMK

(2) CMC

Tentative Rulings: (1) GRANT as to the PMK deposition and the Court will discuss a date by which the deposition is to be taken. The Motion is DENIED as to compelling the documents sought due to the lack of a Separate Statement or other showing of good cause for every category sought. Monetary sanction of $1500 are to be payable by GM or its counsel to Plaintiff’s counsel within 30 days

(2) The parties submitted to typical unhelpful CMC statements in this Song-Beverly Act case involving a 2018 Silverado. Plaintiff is to provide a summary of the nature of the Lemon Law case (i.e., is it a presumption case, a single recurring defect case, a constellation of claimed defects case, an over-30-days to repair case, etc. and a discussion of efforts to have this case placed in a future mediation block.

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I. BACKGROUND¿¿

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A. Factual¿¿

On January 19, 2024, Plaintiff, Omar Garcia (“Plaintiff”) filed a complaint against Defendant, General Motors, LLC, and DOES 1 through 10. The complaint alleges a violation of the Song-Beverly Consumer Warranty Act.

On February 26, 2024, Plaintiff contends that he noticed the deposition of GM’s Person Most Knowledgeable (“PMK”). Along with Plaintiff’s notice, Plaintiff asserts that a meet and confer letter was also served requesting Defendant provide additional dates to conduct the deposition by March 6, 2024, if the noticed date did not work with it or it’s counsel’s schedule. However, by March 6, 2024, Plaintiff contends that Defendant failed to respond to Plaintiff’s meet and confer letter nor did Defendant indicate that the parties would need to meet and confer to establish a mutually agreeable date and time for the deposition. Similarly, Plaintiff contends that GM failed to provide objections to the deposition notice.

Plaintiff asserts that assuming the deposition was confirmed, on March 27, 2024, two days prior to the noticed deposition, Plaintiff’s counsel sent an email to opposing counsel to confirm the deposition was moving forward. In response, Defendant’s counsel advised tat the deposition would not move forward, notwithstanding the fact that Defendant did not serve objections.

As such, Plaintiff has brought this Motion to Compel the Deposition of Defendant GM’s PMK and Request for Production of Documents.

B. Procedural¿¿

On July 10, 2023, Plaintiff filed this Motion to Compel Deposition of GM’s PMK and Request for Production of Documents. To date, no opposition has been filed. On July 31, 2024, Plaintiff filed a Notice of Non-Opposition. In fact, other than a minimalist CMC statement, GM has not filed anything in this case besides its Answer.

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¿II. MEET AND CONFER

Code of Civil Procedure § 2025.450(b)(2) requires that a motion to compel a part deponent to appear or produce documents “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.” (C.C.P. §2025.450(b)(2).) The attempt to resolve informally may be made either by conferring “in person, by telephone, or by letter with an opposing party or attorney.” (C.C.P. §2023.010(i), [failure to make such attempt constitutes “misuse of discovery process”].)

Here, Plaintiff notes that on March 27, 2024, Plaintiff’s counsel requested an alternative date in which to conduct the deposition of Defendant’s PMK via email and establishing an April 5, 2024 deadline to provide alternative dates. By April 5, 2024, Plaintiff contends that no alternative dates were provided, nor were any attempts to meet and confer made by Defendant’s counsel. Further, on April 10, 2024, Plaintiff’s counsel served a second meet and confer letter requesting three days in which to conduct the deposition of Defendant’s PMK, and establishing a April 19, 2024 deadline to provide alternative dates. However, by April 19, 2024, no alternative dates were provided, nor attempts to meet and confer from Defense Counsel. Additionally, on April 24, 2024, Plaintiff’s counsel notes that a request for alternative dates was also sent, establishing a May 1, 2024 deadline to provide, but by then, no alternative dates or meet and confer dates were provided by Defendant’s counsel.

This Court finds that Plaintiff’s attorney sufficiently attempted to meet and confer prior to bringing this motion.

III. ANALYSIS¿

A. Legal Standard

Code of Civil Procedure section 2025.450, section (a) provides:

“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 under Section 2025.230, 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.”

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

Here, because GM failed to object to the notice of deposition, and also failed to provide alternative dates for the taking of the deposition, the Court notes that it would typically GRANT such a motion. However, pursuant to Code of Civil Procedure section 2045.450 subdivision (b)(1), Plaintiff’s motion was required to 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. (Code Civ. Proc., § 2045.450, subd. (b)(1). Plaintiff’s motion is missing this analysis. While the Court can compel the parties to set discovery for a mutually agreeable date, the good faith of the categories of discovery remains. Further, pursuant to California Rules of Court, Rule 3.1020(a)(5), a motion to compel the production of documents at a deposition must be accompanied by a separate statement. Plaintiff has not filed a separate statement in the bringing of this motion, but the motion is also for the production of documents at the deposition. As such, this Court GRANTS the motion to compel the deposition of GM”s PMK but DENIES this motion to compel the production of the requested documents. The denial of the motion to compel the documents is without prejudice to Plaintiff serving a new or the same document demand before the date set for the deposition, putting GM to the task of asserting timely objections to any specific category or categories of requested documents. Monetary sanction of $1500 are to be payable by GM or its counsel to Plaintiff’s counsel within 30 days.