Judge: Salvatore Sirna, Case: 22PSCV00799, Date: 2023-04-25 Tentative Ruling

Case Number: 22PSCV00799    Hearing Date: April 25, 2023    Dept: G

Plaintiff Manuel Meza Jr.’s Motion to Compel the Deposition of Defendant’s Person Most Qualified

Respondent: Defendant General Motors, LLC

TENTATIVE RULING

Plaintiff Manuel Meza Jr.’s Motion to Compel the Deposition of Defendant’s Person Most Qualified is GRANTED.

Within ten (10) days of the issuance of this order, Defendant General Motors, LLC is ordered to provide Plaintiff with dates for the deposition of Defendant’s Person Most Qualified.

BACKGROUND

This is a lemon law action. On September 15, 2018, Plaintiff Manuel Meza, Jr. entered into a warranty contract with Defendant General Motors, LLC by purchasing a 2018 Chevrolet Camaro. Subsequently during the warranty period, Plaintiff alleges the vehicle developed defects with its transmission system.

On July 29, 2022, Plaintiff filed a complaint against Defendant and Does 1-50, alleging (1)violation of Civil Code section 1793.2, subdivision (d); (2) violation of Civil Code section 1793.2, subdivision (b); (3) violation of Civil Code section 1793.2, subdivision (a)(3); (4) breach of express warranty; and (5) breach of implied warranty of merchantability.

On March 29, 2023, Plaintiff filed the present motion. A hearing on the motion is set for April 25. A hearing on a motion to compel discovery is also set for July 13, along with a final status conference on May 1, 2024 and jury trial set to commence on May 14.

ANALYSIS

Plaintiff moves for an order compelling Defendant to produce a person most qualified for Category Nos. 1-4, 7, and 10 in Plaintiff’s deposition notice. For the following reasons, the court GRANTS Plaintiff’s motion.

Legal Standard

Code of Civil Procedure section 2025.450, subdivision (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 to compel must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Good cause is construed liberally and has been found where documents are necessary for trial preparation. (See Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 587.) The motion must also “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce document . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

If the motion to compel 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.” (Code Civ. Proc.,§ 2025.450, subd. (g)(1).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2025.450, subd. (i)(1).

Discussion

On October 28, 2022, Plaintiff propounded a Notice of Deposition of the Person Most Qualified and Demand to Produce Documents on Defendant. (Kowalski Decl., ¶ 8, Ex. B.) On November 9, Defendant responded to Plaintiff’s notice of deposition with objections but agreed to produce a witness to discuss relevant and nonprivileged aspects of Category Nos. 1-4, 7, and 10. (Kowalski Decl., ¶ 9, Ex. C.) In response, Plaintiff’s counsel emailed Defendant on November 29, requesting a specific time and date for the deposition to be provided by December 6. (Kowalski Decl., ¶ 10, Ex. D.) After Defendant did not respond, Plaintiff’s counsel sent a follow up email on December 7 and noted judicial assistance may be required. (Kowalski Decl., ¶ 11, Ex. E.) Plaintiff’s counsel sent three additional follow up emails on December 15, January 4, and January 13 but did not receive any reply from Defendant. (Kowalski Decl., ¶ 12-14, Ex. F-H.)

In response, Defendant argues Plaintiff’s motion should be denied on procedural grounds because Plaintiff failed to provide a separate statement pursuant to Rule 3.1345, subdivision (a) of the California Rules of Court. However, motions to compel attendance at a deposition are not listed as a type of motion requiring a separate statement pursuant to Rule 3.1345, subdivision (a) nor are they the same as a motion to compel answers or production of documents at a deposition.

Defendant also contends Plaintiff’s counsel failed to adequately meet and confer on Defendant’s objections to Plaintiff’s Notice of Deposition. However, Plaintiff’s motion only seeks to compel the deposition of Defendant’s most qualified person with regards to Category Nos. 1-4, 7, and 10, the same categories Defendant has agreed to provide a witness for. While Plaintiff’s counsel sent a total of five emails from November 2022 to January 2023 requesting a date for the deposition, Plaintiff’s counsel states Defendant refused to respond. While Defendant’s counsel acknowledges these emails, Defendant’s counsel does not explain why Defendant refused to set a deposition date. (Major Decl., ¶ 4.) Although Defendant’s counsel stated the emails failed to address Defendant’s prior objections, that does not excuse counsel’s complete failure to respond to counsel’s request for deposition dates. (Major Decl., ¶ 4-5.) Thus, the court finds Plaintiff’s counsel adequately met and conferred.

Last, Defendant maintains Plaintiff’s motion is without merit. However, Defendant admits it agreed to produce a witness with limitations for Category Nos. 1-4, 7, and 10, and that parties just need to find a mutually agreeable date. (Opposition, p. 7:14-28.)

Accordingly, the court GRANTS Plaintiff’s motion to compel Defendant.   

CONCLUSION

Based on the foregoing, Plaintiff’s motion to compel deposition of Defendant’s person most qualified is GRANTED.

Within ten (10) days of the issuance of this order, Defendant is ordered to provide Plaintiff with dates for the deposition of Defendant’s person most qualified.