Judge Timothy B. Taylor, Case 37-2023-00001184-CU-BC-CTL 2023-08-25 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2023-00001184-CU-BC-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2023-00001184-CU-BC-CTL FRIEDELL VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 06/15/2023

Tentative Ruling on Motion to Compel PMK Deposition Friedell v. GM, Case No. 2023-1184 August 25, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a Song-Beverly 'lemon law' case involving a new 2022 Chevrolet Tahoe purchased by plaintiff in late 2021. He alleges defects including 'coolant leaking from the vehicle and dashboard warning lights illuminating.' The complaint was filed in January of 2023. GM answered seasonably. ROA 9.

At a due-course CMC, the court set the case for trial in February of 2024. ROA 18-22.

Presently, plaintiff seeks an order compelling a PMK deposition. ROA 14. Plaintiff also seeks the imposition of over $3000 in sanctions. GM filed opposition. ROA 23-24. The court has reviewed the papers and no further submissions are authorized in connection with this motion.

2. Applicable Standards.

A. A civil litigant's right to discovery is broad. Williams v. Superior Court (2017) 3 Cal.5th 531, 541.

'[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Code Civ. Proc. § 2017.010.

'Among the myriad purposes of the civil discovery statutes is to safeguard against surprise and gamesmanship, and to prevent delay.' Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306.

B. Any party may obtain discovery by an oral deposition. Code Civ. Proc. § 2019.010(a). 'The goal of discovery depositions is ordinarily twofold: to obtain information from the witness and to provide a foundation for the witness's impeachment, if necessary, at trial.' Berroteran v. Superior Court (2022) 12 Cal.5th 867, 892. Service of a deposition notice requires a party witness to attend, testify, and produce any documents requested in the notice. Code Civ. Proc. § 2025.280(a). Code of Civil Procedure section 2025.450(a) permits a motion to compel when 'after service of a deposition notice,' a party 'fails to appear for examination.' Calendar No.: Event ID: TENTATIVE RULINGS

2986348 39 CASE NUMBER: CASE TITLE: FRIEDELL VS GENERAL MOTORS LLC [IMAGED] 37-2023-00001184-CU-BC-CTL C. 'A central purpose of the Discovery Act was to keep the trial courts out of the business of refereeing day-to-day discovery by requiring parties to conduct discovery and resolve disputes with minimal judicial involvement.' Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253-54. The court's determination of whether an attempt at informal resolution is adequate involves the exercise of discretion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431. Among the factors the court should consider are the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, and the prospects for success. Id. A trial judge's perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.

D. When the Discovery Act authorizes a monetary sanction – such as Code of Civil Procedure section 2025.450(g)(1) – the trial court must impose such a sanction unless the offending party acted with substantial justification or the imposition of the sanction would be unjust. Code Civ. Proc. § 2023.030(a).

However, in awarding sanctions, 'a trial court has discretion to reduce the amount of fees and costs...in order to reach a reasonable award.' Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.

3. Discussion and Rulings.

The motion to compel the deposition of defendant's person most knowledgeable is granted. Code Civ.

Proc. § 2025.450(a).

A. As an initial matter, the court finds that plaintiff made a reasonable and good faith attempt at informal resolution. Code Civ. Proc. §§ 2016.040, 2025.450(b)(2). The evidence shows that the parties exchanged numerous correspondence regarding potential deposition dates. (See Casey Decl., Exs. B, C, E, F, G, H.) B. Turning to the merits, on March 15, 2023, plaintiff served defendant with a notice of deposition of its person most knowledgeable. (Casey Decl., ¶ 2.) The deposition was set for April 24, 2023. (Casey Decl., Ex. A.) On April 21, 2023, defense counsel informed plaintiff's counsel that the PMK was not available on the noticed date, but failed to provide any alternative dates. (Casey Decl., ¶ 4.) Accordingly, defendant is directed to produce the person(s) most qualified to provide deposition testimony, as requested in the deposition notice, on a mutually agreeable date and time to be re-noticed by plaintiff. Defendant is further directed to produce all responsive non-privileged documents as requested in the deposition notice. Defendant's objections to the deposition notice, served one day after the noticed date (Casey Decl., Ex. D), are untimely and therefore waived. Code Civ. Proc. § 2025.410(a). The court, however, reserves jurisdiction to address issues related to the PMQ examination topics and document requests at a later date if the need arises. The deposition(s) must be completed by September 29, 2023, unless the parties agree otherwise.

C. Plaintiff's request for monetary sanctions is granted in the reduced amount of $1,862.50 (3.5 hours at $515 per hour plus the $60 filing fee). Code Civ. Proc. § 2025.450(g)(1). The sanctions must be paid by defendant GM to plaintiff Jack Friedell by September 29, 2023.

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