Judge William A. Crowfoot, Case Number: 24NNCV02735, Date: 2024-11-07 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV02735, Date: 2024-11-07 Tentative Ruling

On July 5, 2024, plaintiff Steven A. Sommerfeld (“Plaintiff”) filed this action against defendant General Motors, LLC (“Defendant”) arising from alleged violations of the Song-Beverly Consumer Warranty Act (“SBA”).

Plaintiff alleges that on or about October 28, 2023, he purchased a 2023 Chevrolet Corvette (“Subject Vehicle”) which suffered from nonconformities and that Defendant has been unable to or refused to conform it to the applicable express and implied warranties under the Act. (Compl., ¶¶ 4; 10-14.) Plaintiff further alleges that Defendant has failed to and refuses to repurchase the vehicle and make restitution. (Compl., ¶¶ 14-18.)

On October 10, 2024, Plaintiff filed this motion for an order compelling Defendant’s Person Most Qualified (“PMQ”) to appear for deposition and produce documents. The operative deposition notice identifies 7 categories of testimony and 10 categories of documents. (Motion, Ex. G.)

On October 25, 2024, Defendant filed its opposition brief and a separate statement.

If a party or an officer, director, managing agent, employee of a party, or person designated as the person most qualified to testify fails to appear for examination or produce documents, the demanding party may move to compel attendance, testimony, and production. (Code Civ. Proc., § 2025.450, subd. (a).)

Plaintiff initially served a deposition notice scheduling the deposition for July 29, 2024. (Motion, Ex. A.) On August 15, 2024, Defendant served objections. On August 20, 2024, Plaintiff’s counsel made several proposals in an email in order to proceed with the deposition and requested defense counsel’s availability to meet and confer over the phone or through Zoom. (Motion, Ex. C.)

On August 22, 2024, Plaintiff served a First Amended Notice of Deposition for Defendant’s PMQ. (Motion, Ex. D.) In response, Defendant served objections on September 4, 2024. (Motion, Ex. E.) On September 5, 2024, Plaintiff’s counsel again sent an email requesting a time to meet and confer over the phone or through Zoom. (Motion, Ex. F.)

On September 10, 2024, Plaintiff served a Second Amended Notice of Deposition for Defendant’s PMQ. (Motion, Ex. G.) Defendant served objections on September 25, 2024. (Motion, Ex. H.)

On September 26, 2024, Plaintiff’s counsel sent an email regarding Defendant’s objections and requested defense counsel’s availability to meet and confer over the telephone or through Zoom. (Motion, Ex. I.) Defense counsel responded to this email the same day and said he would be available the next day due to the Court holiday. (Motion, Ex. J.) On September 27, 2024, Plaintiff’s counsel sent an email stating that he called defense counsel but was not able to leave a message; Plaintiff’s counsel also wrote, “Feel free to reach out when you are available.” (Motion Ex. K.)

The Court finds that Plaintiff satisfied the requirement to meet and confer before filing this motion to compel. Plaintiff sent multiple emails and attempted to discuss Defendant’s objections over the phone or Zoom, but was ignored each time.

Plaintiff’s Category Nos. 1 through 4, and 6 pertain to Defendant’s decision not to repurchase or replace the Subject Vehicle, as well as the Subject Vehicle’s repair history, any communications about the Subject Vehicle between Defendant and any other person, and any investigation performed to determine whether the Subject Vehicle qualified or repurchase or replacement.

In response, Defendant asserted various objections but agreed, subject to those objections, to “produce a witness at a mutually agreeable time and place to discuss the relevant and nonprivileged aspects of [each] [c]ategory.” (Motion, Ex. H.)

Since Defendant agrees to produce a witness, the motion to compel is GRANTED with respect to these categories of examination.

These document requests ask for documents and correspondence relating to the Subject Vehicle as well as recalls, TSBs, and writings reviewed in deciding whether to repurchase or replace the Subject Vehicle. As an initial matter, the Court limits the scope of the definition of “Documents” so that Defendant must only produce internal reports, not internal emails, and produce external emails such as those to or from the Plaintiff, plaintiff’s counsel, and agencies such as the NHTSA.

Defendant states the Subject Vehicle was repaired and serviced by an authorized GM repair facility and: (1) agrees to comply “in part” by producing records already produced in response to Plaintiff’s previously-served inspection demands or (2) refers to those previously-produced documents. However, there is no indication that these are the only responsive documents in their possession, custody, and control. Accordingly, the motion to compel production is GRANTED. The objections that the requests are vague, ambiguous, overbroad, unduly burdensome, oppressive, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence, or seeks confidential, proprietary and trade secret information are OVERRULED.

RFP No. 7 seeks “[a]ny recalls that apply to the Subject Vehicle.” The motion to compel is DENIED because Defendant states that the Subject Vehicle has no current record of field actions, including recalls.

These topics of examination and document requests concern Defendant’s lemon law policies and procedures as well as other vehicles which exhibited the same alleged nonconformities complained of by Plaintiff, including the transmission.

The Court GRANTS the motion to compel and orders Defendant to produce a witness as well as its policy and procedure documents for Song-Beverly Act compliance including any “buy back manual” provided to decision makers would be ordered to be produced, subject to the privilege limitations that communications with in-house counsel or outside counsel would not be produced but identified in a privilege log. The discoverable policies and procedures are limited to those applicable to California and the time period when Plaintiff’s vehicle was subject to consideration for a buy back.

Any information about other vehicles is limited to those sold in California which are the same year, make, and model of the Subject Vehicle with complaints similar to the alleged defects claimed by Plaintiff.

This request for production demands “[a] copy of any photographs or videos of the SUBJECT VEHICLE.” Defendant has stated that it is unaware of any responsive photographs or videos but that its investigation and discovery is continuing. Insofar as Defendant’s investigation leads to the discovery of such photographs and videos, the motion to compel production is GRANTED and Defendant is ordered to produce them.

Defendant failed to respond to Plaintiff’s multiple attempts to meet and confer and to schedule the deposition for a mutually agreeable date. The Court imposes sanctions against Defendant in the amount of $1,800, consisting of 3 hours at an hourly rate of $475 and 1 hour at the rate of $375. Sanctions are to be paid within 20 days.

Plaintiff’s motion to compel is GRANTED. Defendant is ordered to produce a PMK within the next 60 days. Sanctions are to be paid within 20 days.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.