Brian A Goldsworthy vs General Motors LLC

Case Number

22CV03371

Case Type

Hearing Date / Time

Fri, 01/19/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

(1) For all reasons discussed herein, the court will grant the motion of plaintiff to compel the attendance of defendant General Motors LLC’s, person most qualified at deposition, in accordance with this ruling.

(2) On or before January 25, 2024, General Motors LLC shall provide to plaintiff three dates on which its person most qualified is available to attend a deposition. On or before January 31, 2024, plaintiff shall select a date for the deposition of defendant’s person most qualified from the dates provided and notify defendant of that date. If defendant does not provide a date on which its person most qualified is available to attend a deposition by January 25, 2024, plaintiff may unilaterally select and notice a date for the deposition of defendant’s person most qualified. The deposition of defendant’s person most qualified shall conclude on or before February 29, 2024. Alternatively, defendant may move for appropriate protective orders, if warranted.

Background:

On August 31, 2022, plaintiff Brian A. Goldsworthy filed his complaint for violation of statutory obligation against defendant General Motors LLC (GM), alleging five causes of action: (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) of Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of express warranty (Civ. Code sections 1791.2, subd. (a), and 1794); and (5) breach of the implied warranty of merchantability (Civ. Code sections 1791.1 and 1794). As alleged in the complaint:

On December 1, 2020, plaintiff purchased a 2020 GMC Sierra 1500 (the vehicle) which was manufactured and distributed by GM. (Complaint, ¶ 6.) In connection with the purchase of the vehicle, plaintiff received an express written warranty which provided that in the event a defect developed during the warranty period, plaintiff could deliver the vehicle for repair services to GM’s representative and the vehicle would be repaired. (Id. at ¶ 10.)

After plaintiff took possession of the vehicle and during the warranty period, the vehicle developed defects which impaired the use, safety, and value of the vehicle and which violated express and implied warranties. (Complaint, ¶¶ 11-13, 17.) Plaintiff presented the vehicle for repair to GM and its representatives and gave GM sufficient opportunity to repair the vehicle, but GM was unable or failed to service or repair the vehicle within a reasonable number of attempts. (Id. at ¶¶ 14, 15, 20, 21)

On October 31, 2022, GM filed its answer to plaintiff’s complaint generally denying its allegations and asserting twenty-five affirmative defenses.

On October 9, 2023, plaintiff filed a motion for an order compelling GM to designate and produce for deposition its person most qualified (PMQ) to testify as to matters for examination enumerated in plaintiff’s notice of deposition. Among other things, plaintiff contends that the matters for examination described in the deposition notice seek relevant testimony from the PMQ with regard to plaintiff’s claims under Civil Code section 1791 et seq. (the Song-Beverly Consumer Warranty Act or Act).

In support of the motion, plaintiff submits the declaration of his counsel who states that on April 12, 2023, counsel requested from GM a date for the deposition of GM’s PMQ. (Cohen Decl., ¶ 5 & Exh. A.) On July 28, 2023, plaintiff’s counsel sent a follow-up email requesting that the parties “touch base regarding this matter before the upcoming hearing on [p]laintiff’s motions to compel.” (Id. at ¶ 6 & Exh. B.) GM did not respond to plaintiff’s counsel’s communications. (Id. at ¶¶ 5, 6.)

On August 16, 2023, plaintiff served a notice of deposition of the PMQ (the deposition notice), unilaterally noticing the deposition for August 29, 2023, and requesting the PMQ respond to twenty-two separate categories of examination. (Cohen Decl., ¶ 7 & Exh. C.) On August 22, 2023, GM served an objection to the deposition notice indicating that it would produce a witness with respect to examination category nos. 1, 2, 3, 4, 9, 10, 11, 14, and 16, but that “[n]o witness will be produced” with respect to the other categories.” (Id. at ¶ 8 & Exh. D.)

On September 8, 2023, plaintiff’s counsel sent a letter to GM’s counsel in response to GM’s objection and in which counsel requested available dates for the deposition of the PMQ. (Cohen Decl., ¶ 9 & Exh. E.) 10. GM’s counsel responded on September 15, 2023, stating that GM is willing to “produce a witness at a mutually convenient time and place”, though GM did not provide an available date and did not indicate that it would reconsider its refusal to provide a witness to testify to certain categories of examination. (Id. at ¶ 10 & Exh. F.) Plaintiff’s counsel followed up with GM’s counsel by email and phone but GM’s counsel did not respond. (Id. at ¶¶ 11, 12, & Exh. G.)

GM opposes plaintiff’s motion. In support of its opposition, GM submits the declaration of its counsel who states that GM served responses and objections to the deposition notice (the GM response) to the extent plaintiff sought testimony and documents about vehicles, topics, and issues which GM contends are unrelated to the vehicle, the claims alleged by plaintiff in this matter, or GM’s defenses. (Yaraghchian Decl., ¶¶ 2, 3; see also Cohen Decl., Exh. D.) In the GM response, GM agreed to produce a PMQ for “relevant” categories at a mutually agreed upon and convenient time and place but not on the date noticed by plaintiff. (Yaraghchian Decl., ¶ 3.) GM also asserts that the GM response identifies and refers plaintiff to specific documents which were produced in response to plaintiff’s prior request for production of documents. (Ibid.)

GM acknowledges that plaintiff requested that GM withdraw its objections and provide a witness as to all categories of examination, but contends that plaintiff did not narrow the scope of the categories or requests at issue and did not try to resolve the parties’ dispute. (Yaraghchian Decl., ¶ 4; see also Cohen Decl., Exh. E.) GM further states that, in its letter dated September 15, 2023, it agreed to produce its PMQ subject to plaintiff narrowing the deposition topics to the scope of the allegations in the complaint. (Yaraghchian Decl., ¶ 5; see also Cohen Decl., Exh. F.) GM also states that before it could respond to plaintiffs October 9, 2023, email, plaintiff filed the present motion notwithstanding GM’s purported willingness to resolve the dispute. (Yaraghchian Decl., ¶ 7.)

GM also submit the declaration of Huizhen Lu, who is employed by GM as a Senior Manager/Senior Technical Consultant of Engineering Analysis. (Yaraghchian Decl., Exh. A [Lu Decl.] at ¶ 3.) Lu states that it is his understanding that GM is filing a motion for entry of a protective order with regard to certain categories of documents that may be produced in the instant litigation and which contain confidential, trade secret, and commercially sensitive business information. (Id. at ¶ 7.) Lu sets forth information that purports to establish the confidential and proprietary nature of information and documents sought by plaintiff in the deposition notice and the economic and competitive harm that GM will purportedly incur should the information be disclosed or become available to GM’s competitors. (See Lu Decl., ¶¶ 8-38.)

Analysis:

Based on the information and arguments offered by the parties in their respective papers supporting and opposing plaintiff’s motion, and the manner in which the parties have focused the issues, it is the court’s understanding that the present dispute is centered on whether GM must designate and produce a PMQ to testify on GM’s behalf as to the matters of examination described in paragraphs 6, 7, 12, 13, 17, 18, 19, 20, and 21 of Exhibit A to the deposition notice.

Proper service of a deposition notice under Code of Civil Procedure 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 to 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 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, … the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (Code Civ. Proc., § 2025.450, subd. (a).)

Though available information indicates that the parties effectively agreed that the deposition of the PMQ would not proceed on the initial date unilaterally noticed by plaintiff, pending the parties’ efforts to secure a mutually agreeable date and time and resolve the present dispute, GM has asserted objections to the categories of examination described in paragraphs 6, 7, 12, 13, 17, 18, 19, 20, and 21 of Exhibit A to the deposition notice and unequivocally states that it will not produce the PMQ in response to these categories. (See Sep. Stmt. at pp. 2, 4-6, 8, 10-11 & 13-14.) In addition, in its opposition to the present motion, GM does not dispute that it agreed to produce its PMQ for “certain topics” that GM contends are pertinent to the vehicle. (Opp. at pp. 3-4 & 7.)

The court interprets GM’s objections and contentions as an unequivocal refusal to proceed with the deposition with respect to each category of examination described in the deposition notice. GM’s assertions are tantamount to a nonappearance by GM’s PMQ at the deposition noticed by plaintiff to the extent that GM has failed to assert valid objections to paragraphs 6, 7, 12, 13, 17, 18, 19, 20, and 21 of Exhibit A.

GM contends that plaintiff failed to meet and confer in good faith before filing the present motion. Under circumstances in which a deponent fails to attend a deposition, a motion seeking to compel that deponent’s attendance need only be accompanied by “a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) (Note: Undesignated statutory references are to the Code of Civil Procedure unless otherwise stated.)

Here, plaintiff seeks an order compelling the PMQ’s attendance at the deposition as to all matters for examination described in the deposition notice following GM’s effective refusal to attend the deposition for reasons further discussed above. Therefore, the provisions of section 2025.450, subdivision (b)(1), which require a party moving to compel either an answer to a question or the production of any document at a deposition to submit a meet and confer declaration, do not apply here.

In addition, information submitted by the parties demonstrates that plaintiff contacted GM to inquire about the PMQ’s appearance at the deposition and dates on which the PMQ would be available for deposition. Plaintiff also sufficiently met and conferred with GM regarding GM’s objections to the deposition notice. For these reasons, plaintiff has sufficiently met and conferred with GM regarding the present dispute, including GM’s nonappearance at the deposition.

Citing section 2031.310, subdivision (b)(1), GM also contends that to prevail on the motion, plaintiff must “articulate specific facts demonstrating good cause for the discovery sought.” (Opp. at p. 5, ll. 13-14.) Section 2031.310 applies to a motion for an order compelling a further response to an inspection demand. Plaintiff here does not seek an order compelling responses to an inspection demand. For these same reasons, the provisions of section 2025.450, subdivision (b)(1), also do not apply here because plaintiff does not seek an order compelling production of any documents described in the deposition notice. GM does not cite any statutory provision or other legal authority requiring plaintiff to demonstrate good cause with respect to the categories of examination at issue in the present motion.

GM further contends that under sections 2017.020 and 2031.310, subdivisions (g)(3) and (4), the court should limit the scope of the discovery sought by plaintiff in the deposition notice. For the same reasons discussed above, section 2031.310 is not applicable to the present dispute. The court further notes that GM has not filed a procedurally appropriate noticed motion for a protective order under section 2025.420 or a motion for an order staying the taking of the deposition and quashing the deposition notice. (See Code Civ. Proc., § 2025.410, subd. (c).)

 

In addition, GM’s reliance on Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216 (Calcor) is misplaced. In Calcor, the court addressed a subpoena served on a nonparty requesting “broad categories of documents and other materials” and the responding party’s motion for a protective order contending the subpoena was burdensome and overly broad and sought production of confidential and proprietary material not relevant to the subject matter of that action. (Calcor, supra, 53 Cal.App.4th at pp. 219-220.) GM is a party to the present action and as further discussed above, has not filed a motion for a protective order. Moreover, the discovery at issue here pertains to the production of a witness to testify as to certain categories of examination at a deposition and not an inspection demand such as the demand at issue in Calcor.

GM asserts that it is not required to produce a PMQ to testify as to the matters described in paragraph nos. 6, 7, 12, or 13 because, according to GM, its internal policies and procedures for handling consumer warranty claims and repurchase requests have no relevance to whether GM was able to conform plaintiff’s vehicle to its warranty within a reasonable number of attempts. GM further asserts that it is not required to produce a PMQ to testify as to the matters specified in paragraph nos. 17 through 21 because these categories seek information concerning other consumer complaints and vehicles which are not relevant to plaintiff’s claims in the present matter.

The matter for examination described in paragraph 17 relates solely to GM’s compliance with the Act with respect to the vehicle at issue in the present action. In addition, paragraph 20 relates in part to GM’s knowledge of defects in the vehicle including available fixes. Ostensibly, the categories of examination described in paragraphs 6, 7, 12, 13, and 21 may encompass and therefore relate in part to the vehicle at issue here including the method by which GM would typically calculate restitution under the Act with respect to the vehicle.

GM does not dispute that the present action includes breach of warranty claims as well as claims for violations of the Act based on GM’s failure to repair the vehicle. Therefore, for present purposes and to the extent the testimony sought in paragraphs 6, 7, 12, 13, 17, 20, and 21 encompasses matters relating to the vehicle or defects in the vehicle as well as the warranty issued for the vehicle and any breach thereof, GM has failed to demonstrate why these matters are not relevant to the subject matter of this action or why the information sought in these paragraphs could not reasonably lead to admissible evidence. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590-591 [the phrase “subject matter” is not limited to admissible evidence such that relevant information includes that which might assist a party in evaluating the case, preparing for trial, or facilitating settlement].)

The examination categories described in paragraphs 6, 7, 12, 13, 18, 19, 20, and 21, also appear to relate in part to GM’s general policies and procedures regarding consumer complaints and requests for repurchase under the Act, GM’s compliance with the Act, warranty repairs, goodwill repairs, consumer claims regarding other vehicles of the same model which demonstrated substantially similar defects as the vehicle, consumer claims for repurchase or replacement of vehicles of the same model exhibiting the same defects, general “fixes” that were made available to GM’s authorized repair facilities, and GM’s method for calculating restitution pursuant to the Act. Plaintiff contends that this court has already determined that GM’s policies and procedures with respect to the Act and GM’s knowledge of similar defects are relevant to plaintiff’s claims.

In its August 11, 2023, Minute Order (the Minute Order), the court noted that with respect to the requests for production (RFP) that were at issue as further discussed in the Minute Order, factors to be considered by the jury in determining whether to award a civil penalty under the Act include: (1) whether the manufacturer knew the vehicle had not been repaired within a reasonable period or after a reasonable number of attempts; and (2) whether the manufacturer had a written policy on the requirement to repair or replace. (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185-186.) Accordingly, the court determined that, with respect to the RFP at issue, GM’s policies and procedures regarding the Act, including whether such policies exist and their substance, are relevant to a determination of whether GM’s failure to repurchase the vehicle was willful.

The court further noted that the RFP at issue were overbroad because the locations of “authorized repair facilities” or “policies” were not geographically limited. (Aug. 11, 2023, Minute Order.) The court also noted that the RFP at issue appeared to be reasonably calculated to lead to the discovery of admissible evidence to the extent those RFP were limited to a reasonable geographic area and therefore would be relevant to the subject matter of the present action.

The RFP addressed in the Minute Order did not necessarily encompass the same matters at issue here. (See Aug. 11, 2023, Minute Order [addressing RFP Nos. 2, 29, 30, 31, and 32].) Moreover, plaintiff has failed to address the court’s previously expressed concerns regarding the broad and potentially unlimited scope of the RFP at issue in the Minute Order, which also exist with respect to the matters described in paragraphs 6, 7, 12, 13, 18, 19, 20, and 21 with respect to geographic area. In addition, the matters for examination described in paragraphs 6, 7, 12, 13, 18, 19, 20, and 21 appear to be unlimited in scope with respect to time.

GM further asserts that the categories of examination presently at issue require GM to disclose confidential and proprietary information which may be accessible to GM’s competitors. Apart from conclusory and speculative assertions regarding GM’s trade secrets, for present purposes, GM has failed to demonstrate how or why the categories of examination described in paragraphs 6, 7, 12, 13, and 17 through 21 necessarily require GM to disclose information that is confidential, proprietary, or otherwise privileged. The court further notes that on April 6, 2023, the court issued an order approving a stipulation and protective order (the protective order) entered into by the parties to this matter.

Presently, and without the benefit of a specific deposition question to which plaintiff seeks to compel an answer, there exists insufficient information to permit the court is conclusively determine whether the examination matters described in paragraphs 6, 7, 12, 13, 18, 19, 20, and 21 include matters which are not properly discoverable or which are privileged for reasons further discussed above. For this same reason, the court cannot conclusively determine whether GM’s objections are meritorious with respect to any specific question.

Notwithstanding concerns regarding the scope of the matters described in paragraphs 6, 7, 12, 13, 18, 19, 20, and 21 as further discussed above, the categories of examination described in these paragraphs and in paragraph 17, appear to also include matters which relate to the vehicle, repairs to the vehicle, warranty issues with respect to the vehicle, and other matters which are the subject of the present action as further discussed above. For this reason, GM’s blanket refusal to produce a PMQ with respect to these categories is improper.

At this stage of the proceedings, the court will order the deposition of the PMQ to proceed on the topics enumerated in the deposition notice, subject to the protective order. To the extent further disputes develop during the deposition with regard to GM’s production of a PMQ with respect to each matter of examination, a particular question, or the production of documents specified in the deposition notice, the court will address such further disputes upon a future procedurally appropriate motion, including any request for sanctions.

The court will further order GM to, on or before January 25, 2024, provide to plaintiff three dates on which its PMQ is available to attend the deposition. On or before January 31, 2024, plaintiff shall select a date for the PMQ deposition from those provided by GM and notify GM of that date. If GM does not provide a date on which its PMQ is available to attend the deposition by January 25, 2024, plaintiff may unilaterally select and notice a date for the deposition.

The court further notes that this matter is set for a trial confirmation conference on March 15, 2024. Therefore, the court will also order that the deposition of GM’s PMQ shall conclude on or before February 29, 2024.

The court’s ruling herein is without prejudice to the filing of a procedurally appropriate noticed motion by GM for a protective order, if appropriate. In lieu of providing dates on which the PMQ is available to attend the deposition as provided herein, GM may move for appropriate protective orders, if warranted.