Judge: Stephen P. Pfahler, Case: 23STCV13765, Date: 2024-12-02 Tentative Ruling

Case Number: 23STCV13765    Hearing Date: December 2, 2024    Dept: 68

Dept. 68

Date: 12-2-24 c/f 11-20-24

Case #: 23STCV13765

Trial Date: 12-9-24

PMQ DEPOSITION

MOVING PARTY: Plaintiff, Garrett Matsunaga

RESPONDING PARTY: Defendant, General Motors LLC

RELIEF REQUESTED

Motion to Compel the PMQ Deposition

SUMMARY OF ACTION

Plaintiff Garrett Matsunaga alleges a General Motors vehicle suffers from defective battery system, which recalls and software updates have not fixed, thereby lowering the value of the vehicle.

On June 14, 2023, plaintiff filed a complaint against General Motors LLC for 1. Fraud Concealment and Misrepresentation; 2. Negligent Misrepresentation 3. Business & Professions Code §17200 4. Song-Beverly Consumer Warranty Act – Breach of Express Warranty; 5. Song-Beverly Consumer Warranty Act – Breach of Implied Warranty; 6. Song-Beverly Co0nsumer Warranty Act – Civil Code §1793.2(B). On October 26, 2023, the court sustained the demurrer to the complaint with 20 days leave to amend.

On November 15, 2023, Plaintiff filed a first amended complaint for 1. Fraud -- Concealment; 2. Song-Beverly Consumer Warranty Act – Breach of Express Warranty; 3. Song-Beverly Consumer Warranty Act – Breach of Implied Warranty; 5. Song-Beverly Consumer Warranty Act – Civil Code §1793.2(B). On January 29, 2024, the court overruled the demurrer to the first amended complaint. General Motors answered the first amended complaint on July 24, 2024.

RULING: Granted.

Plaintiff Garrett Matsunaga moves to compel the deposition of the person most qualified (PMQ), and 18 requests for production. Plaintiff served a notice of deposition for the PMQ, and attempted to meet and confer, but alleges Defendant General Motors LLC (GM) refuses to produce witness(es) and objects to the categories. GM in opposition states that Plaintiff failed to adequately meet and confer before filing the instant motion; Defendant offered to produce the witness to testify on categories 1, and 5-11; Defendant reiterates the validity of its objections to 2-4, and 12-18, on grounds of relevance, and trade secret privilege. The electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff, but the court reserves the right to take the matter under submission for any filed reply appearing between the time of the issuance of the tentative ruling and the hearing.

A party may file a motion to compel deposition upon a non-appearance of the noticed party. (Code Civ. Proc., §2025.450, subd. (a).) A party must present a qualified person for each deposition. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398.) The court finds the meet and confer sufficient regarding the deposition, but lacks any address of the document production. [Declaration of Guy Mizrahi, Ex. D-G.] Regardless, given the impending trial date the court considers the document demand as well.

The court again reiterates its own discover in relation to Song-Beverly Act (SBA) litigation. Given the increasing volume of filed SBA “Lemon Law” cases and the subsequent increase of motions, presumably at least in part prompted by the lack of arbitration clause enforcement pending California Supreme Court review, the court established certain discovery standards based on the fundamental basis for SBA. Under the SBA, “[a] plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). (Civ.Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886–887, 263 Cal.Rptr. 64.)” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

The court adheres to a discovery approach allowing inquiry into the relevant make and model year for all impacted systems or parts, without opening the door for a general inquiry into any and all lemon law claims filed against vehicle manufacturers for all makes and models, including varying individual and potential system defects. The goal strives for a goal of facilitating robust adjudication of the case on the subject vehicle, thereby allowing Plaintiff the opportunity to investigate, without imposing any burden on defendant to determine the cause of the purported defect(s).

The court established this policy based on established practice standards common among counsel in this field based on standards established and reviewed by practice and reviewed at least in party by appellate courts. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 153-154; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104-1105.) The court in no way doctrinally adheres to this policy. No doubt other courts may take different approaches. The court in no way seeks to invite comparisons with other courtrooms. The court only notes its reasoning behind its policy to experienced counsel.

Given the agreement to both produce a witness and respond to categories 1, and 5-11, the court grants the motion in order to compel compliance as to the subject items.

On numbers 2, 3, 4, 12-18, the court finds the request overbroad. The lack of any demonstrated meet and confer undermines any finding for an effort to narrow down the issue or meaningfully consider the necessary information. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224–225.) The motion is DENIED as to these items.

The motion is therefore granted in order to insure the PMQ deposition(s) occur(s), along with relevant documents production on categories 1, and 5-11, and denied as to category production on categories 2-4 and 12-18. The court orders the parties to meet and confer within 1 day of this order to agree upon a mutually convenient deposition date(s) of the PMQ(s) to occur within the next 5 days, pursuant to the presented guidelines.

Defendant may assert any privilege objections at the time of the deposition, as it deems required. An excessive amount of objections and/or termination of the deposition may allow Plaintiff to file a motion to compel further deposition testimony and/or production. Such a motion will require a trial continuance, with a potential additional setting of an OSC for referral to a discovery referee in order to conduct a supervised deposition and/or document review with authority to make privilege determinations, as well as the right to award sanctions in favor of the prevailing party.

Plaintiff makes no request for sanctions. (Code Civ. Proc., §2025.450, subd. (g)(1).)

Final Status Conference and Trial remain set for December 5 and 9, 2024, respectively.

Plaintiff to give notice.