MOVING PARTY: Plaintiff Nicholas Slaick   

 

RESPONDING PARTY: Defendant General Motors, LLC   

Motion to Compel Deposition of Defendant General Motors, LLC’s Person(s) Most Qualified with Production of Documents and Request for Monetary Sanctions  

The court considered the moving papers, opposition, and reply papers filed in connection with Plaintiff’s motion.    

Motion to Compel Further Responses to Request for Production from Defendant General Motors, LLC and Request for Sanctions  

The court considered the moving papers, opposition, and reply papers filed in connection with Plaintiff’s motion.   

BACKGROUND 

This action arises from Plaintiff Nicholas Slaick’s  (“Plaintiff”) lemon law claim involving a 2021 Chevrolet Silverado (the “Subject Vehicle”). Plaintiff filed his Complaint on June 23, 2023 for violations of the Song-Beverly Consumer Warranty Act alleging breach of  express and implied warranties. 

EVIDENTIARY OBJECTIONS 

The court overrules Plaintiff’s evidentiary objections as boilerplate and lacking sufficient specificity. 

THE COMPEL DEPOSITION MOTION 

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.) “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) 

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)  

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection . . . 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).) A motion made pursuant to Code Civ. Proc., § 2025.450 must “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. § 2025.450, subd. (b)(1).) A court may limit the frequency or extent of discovery of electronically stored information if “[t]he likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” (Code Civ. Proc., § 2025.450, subd. (f)(4).)  

If a motion under Code Civ. Proc. § 2025.450(a) is granted “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or 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).) 

A. Meet and Confer Requirement     

Defendant contends that the meet and confer requirement has not been met. Plaintiff’s counsel, Christopher R. Hunt (“Hunt”), sets forth efforts to resolve Defendant’s objections to Plaintiff’s Notice of Deposition, First Amended Notice of Deposition, Second Amended Notice of Deposition, and the operative Third Amended Notice of Deposition. (Hunt Decl., ¶¶ 6-20; Exhibits A-N.)  The Court finds that sufficient.  

B. Scope of the Third Amended Notice of Deposition 

Hunt declares that on November 29, 2023, Plaintiff served the operative Third Amended Notice of Deposition on Defendant for Defendant’s Person Most Qualified (“PMQ”), to which Defendant served meritless and boilerplate objections. (Hunt Decl., ¶¶ 17-19; Exhs. K, M, and L.)  

The operative Third Amended Notice of Deposition indicates that the deponent will be examined on the following topics: (1) questions as to why Defendant did not repurchase or replace the Subject Vehicle prior to the filing of the lawsuit; (2) questions relating to the nature and extent of all the service history, warranty history, and repairs related to the Subject Vehicle; (3) questions relating to all communications between Defendant and Plaintiff, or anyone on Plaintiff’s behalf; (4) questions relating to all communications between Defendant and any other person regarding the Subject Vehicle; (5) questions relating to any affirmative steps taken by Defendant to determine if the Subject Vehicle qualified for repurchase or replacement prior to the date Plaintiff’s lawsuit was filed; and (6) questions relating to the warranty conformity(s) complained of by Plaintiff or made on behalf of Plaintiff. (Hunt Decl., ¶ 17; Exhibit K at p. 4.)  

As to documents to be produced, the Third Amended Notice of Deposition requests production of: (1) documents reflecting service or repairs to the Subject Vehicle; (2) documents evidencing correspondence relating to Plaintiff or the Subject Vehicle, excluding attorney-client communications; (3) copies of Defendant’s California lemon law policy and procedure manual used by Defendant’s dealers and customer service representatives; (4) Defendant’s customer relations file pertaining to Plaintiff or the Subject Vehicle; (5) writings provided to Defendant’s customer service representatives that reflect or relate to rules, policies and procedures concerning the issuance of refunds pursuant to California’s Song-Beverly Act; (6) copies of the technical service bulletin index that relate to the warranty nonconformity(s) alleged in this case; (7) copies of any recalls that apply to the Subject Vehicle; (8) copies of the documents Defendant reviewed when it decided not to repurchase or replace the Subject Vehicle prior to the date this action was filed; (9) Defendant’s lemon law policy and procedure manual; and (10) copies of any photographs or videos Defendant has of the Subject Vehicle. (Hunt Decl., ¶ 17; Exhibit K at p.5.)  

C. Relevance and Good Cause  

Defendant contends that it agreed to produce its PMQ at a mutually agreed upon date and time as to all six proposed categories of testimony. (See Opp’n at p. 7:7-10.) Plaintiff argues that Plaintiff has been attempting to depose GM since July of 2023 and notes that since October of 2023, GM has been ordered to produce its PMQ for a deposition and to pay monetary 

sanctions in at least fourteen (14) separate cases with Plaintiff’s counsel. Supp. Hunt Decl. at ¶ 2.1 

The Court finds that the six categories of testimony set forth in the Third Amended Notice of Deposition are clearly relevant to the subject matter of this action. Such categories of testimony concern the Subject Vehicle, Plaintiff’s communications with Defendant as to the Subject Vehicle, and any warranty nonconformities with the Subject Vehicle. As such, the categories of testimony are clearly relevant to Plaintiff proving his claim in this action.  

As to Plaintiff’s request that Defendant’s PMQ produce documents, the Court finds that Plaintiff has established good cause. Hunt states that: (1) on January 1, 2021, Plaintiff purchased a 2021 Chevrolet Silverado; (2) the vehicle was covered by both Defendant’s express and implied warranties; (3) the Subject Vehicle suffered from defects; and (4) although obligated to promptly repurchase the Subject Vehicle pursuant to the Song-Beverly Consumer Act, Defendant failed to do so leaving Plaintiff with no choice but to file suit on June 23, 2023. (Hunt Decl., ¶¶ 2-5.)  Thus, the documents requested in the Third Amended Notice of Deposition are relevant as such documents concern the Subject Vehicle and Defendant’s policies and procedures concerning the Song-Beverly Act. The documents are related to the issues raised in Plaintiff’s complaint.  

Defendant argues that Plaintiff requests impermissibly seek production of trade secret material. (Opp’n at pp. 7-8.)  Defendant has not identified what, if any, material is proprietary or trade secret.  The court accordingly overrules that objection.   

The motion to compel is grant the PMQ is granted.  

D. Monetary Sanctions 

Hunt declares that his hourly fee is $375.00 per hour and “[i]ncluding his estimated time reviewing GM’s Opposition, preparing Plaintiff’s Reply brief, and in appearing at the hearing, [he] estimate[s] that [he] [has] spent at least six hours meeting and conferring about this issue and in preparing the Motion and related documents.” (Hunt Decl., ¶ 27.) Plaintiff requests monetary sanctions in the amount of $2,250.00 against Defendant. (Hunt Decl., ¶ 27.)   

As to monetary sanctions, given the straightforward nature of the motion, the Court awards reasonable monetary sanctions in the amount of $750.00, which represents two (2) hours of work on the motion at the rate of $375.00 per hour.  

Monetary sanctions are to be paid by Defendant to Plaintiff within 30 days of the date of notice of this order.  

The Court GRANTS the Compel Deposition Motion. The Court ORDERS Defendant’s PMQ to appear for deposition with the production of documents as set forth in the Third Amended Notice of Deposition within 30 days of the date of notice of this order. Monetary sanctions are to be paid in the amount of $750.00 by Defendant to Plaintiff within 30 days of the date of notice of this order as to the Compel Deposition Motion.  

 

THE RPD MOTION 

Plaintiff seeks an order compelling Defendant to provide further responses to Plaintiff’s Requests for Production, Set One, Nos. 27, 28, and 36. 

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court, supra, 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.) 

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection to the response is without merit or too general. (Code Civ. Proc., § 2031.310, subds. (a)(1)-(3).) Where a party seeks to compel further responses to requests for production of documents, a showing of good cause must be established before production may be compelled. (Williams v. Superior Court, supra, 3 Cal.5th 531, 550.) A motion made pursuant to CCP § 2031.310 must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)  

“To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.) The specific facts must be set forth in a declaration. (Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 224.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Ibid.)  

A. The Meet and Confer Requirement  

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) 

The Court finds that the meet and confer requirement has been met. (Hunt Decl. ¶¶ 2-15.)  

B. Timeliness of the Instant Motion    

A motion to compel further responses to requests for production of documents must be “given within 45 days of service of the verified responses, or any supplemental verified response, or on or before any specific later date to which the propounding party and responding party have agreed in writing” otherwise “the propounding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)  

On June 14, 2023, Plaintiff served Defendant with a set of Requests for Production of Documents, including Nos. 27, 28, and 36. (Hunt Decl. ¶ 2; Exh. A.) Defendant served its responses on August 25, 2023, but such responses were not verified. (Hunt Decl., ¶ 3; Exh. B.) Defendant served verifications on August 31, 2023. (Hunt Decl., ¶ 4; Exh. 3.) The parties agreed to extend Plaintiff’s motion to compel deadline to January 31, 2024. (Hunt Decl., ¶ 8; Exhs. T, U, and V.)  

Here, the parties agreed to extend Plaintiff’s deadline to file a motion to compel to January 31, 2024, which is the date the RPD Motion was filed. Thus, the Court finds that the instant motion is timely.  

C. The Lack of Good Cause  

Defendant contends that because the discovery requested by Plaintiff is broad, this is indicative of a lack of good cause. (Opp’n at p. 3:17-25.)  

The Court finds that Plaintiff failed to present specific facts—in a declaration—as to why further responses should be compelled and why the documents requested will tend to prove or disprove a fact of consequence in this action or will lead to other evidence that will tend to prove or disprove such fact. In fact, the separate statement in support of the RPD Motion does not even mention “good cause.” As such, Plaintiff has not met his burden to compel further responses to his Request for Production of Documents, Nos. 27, 28, and 36.  

The RPD Motion is DENIED WITHOUT PREJUDICE.  

 

CONCLUSION 

Based on the foregoing, the Court GRANTS the Compel Deposition Motion. The Court ORDERS Defendant’s PMQ to appear for deposition with the production of documents as set forth in the Third Amended Notice of Deposition within 30 days of the date of notice of this order. Monetary sanctions are to be paid in the amount of $750.00 by Defendant to Plaintiff within 30 days of the date of notice of this order as to the Compel Deposition Motion.  

The RPD Motion is DENIED WITHOUT PREJUDICE.