Skip to main content
Skip to main content.

NOTICE:

Effective September 1, 2025, the cost of e-filing will increase from $6.45 to $10.00 per envelope. For more information click here.

Notice:

The court is aware of fraudulent messages and scams being sent to the public. For more information please click here.

Tyler Powell v. General Motors, LLC

Case Number

23CV01453

Case Type

Civil Law & Motion

Hearing Date / Time

Wed, 04/03/2024 - 10:00

Nature of Proceedings

Plaintiff’s Motion To Compel Deposition Of The Person Most Knowledgeable For General Motors, LLC

Tentative Ruling

For Plaintiff Tyler Powell: Tionna Carvalho, Rabiya Tirmizi, Rosario Stoliker, Strategic Legal Practices

For Defendant General Motors LLC: Mary Arens McBride, Arash Yaraghchian, Erskine Law Group, APC

                  

RULING

For all reasons discussed herein, the motion of Plaintiff to compel the deposition of the person most knowledgeable for Defendant is granted, in part. The deposition of Defendant’s person most knowledgeable shall commence on April 12, 2024, unless the parties otherwise agree in writing. Except as otherwise herein granted, the motion is denied.

The Court will not continue the trial date.

Background

On April 6, 2023, Plaintiff Tyler Powell filed a complaint for violation of statutory obligations 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) Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of the implied warranty of merchantability; and (5) violation of the Magnuson-Moss Warranty Act. As alleged in the complaint:

On December 7, 2022, Plaintiff entered into a warranty contract with GM regarding a 2019 Chevrolet Suburban 1500 vehicle (the vehicle) which was manufactured and distributed by GM. (Complaint, ¶ 6.) The warranty included bumper-to-bumper, powertrain, and emission warranties. (Id. at ¶ 7 & Exh. A.) During the express warranty period, defects and nonconformities manifested in the vehicle which included transmission defects, engine defects, electrical defects, and infotainment defects. (Id. at ¶ 11.) The defects impair the use, value, or safety of the vehicle. (Id. at ¶ 12.) After a reasonable number of repair attempts, GM failed to conform the vehicle to the terms of the express warranty and to replace the vehicle or make restitution in accordance with the Song-Beverly Consumer Warranty Act or the Magnuson-Moss Act. (Id. at ¶¶ 14 & 15.)

GM filed its answer to Plaintiff’s complaint on May 8, 2023, generally denying its allegations and asserting twenty-five affirmative defenses.

On February 20, 2024, Plaintiff filed a motion for an order to compel the deposition of GM’s person most knowledgeable (PMK) and to strike the objections of GM. Plaintiff also requests an award of monetary sanctions against GM.

The motion is brought on the grounds that GM has failed to provide Plaintiff with the availability of its PMK for deposition and has failed to produce its PMK to testify to all matters identified in Plaintiff’s deposition notice. Plaintiff contends that the matters described in the deposition notice seek testimony relevant to Plaintiff’s claims under Civil Code section 1790 et seq. (the Song-Beverly Consumer Warranty Act or SBA).

In support of the motion, Plaintiff submits the declaration of his counsel, Rosario Stoliker, who declares that on June 2, 2023, Plaintiff served a notice of deposition of the PMK for GM (the notice), with a deposition date of August 1, 2023. (Stoliker Decl., ¶ 24 & Exh. 5.) On July 25, 2023, GM served objections to the notice, which included objections to the date, time, and location of the deposition and to the matters for examination described in the notice. (Id. at ¶ 25 & Exh. 6.)

On January 30, 2024, Plaintiff served second notice of deposition of the PMK for GM (the second notice), with a deposition date of February 7, 2024. (Stoliker Decl., ¶ 26 & Exh. 7.) On February 5, 2024, GM served objections to the second notice. (Id. at ¶ 27 & Exh. 8.)

On January 31, 2024, Plaintiff sent GM an email requesting that GM provide its PMK’s availability, but GM never responded. (Stoliker Decl., ¶ ¶ 33 & Exh. 10.) On February 8, 2024, Plaintiff sent another letter to GM regarding the PMK deposition requesting that GM provide a date for the deposition no later than February 15, 2024. (Id. at ¶ 34 & Exh. 11.)

On February 15, 2024, GM responded to Plaintiff’s February 8, 2024, letter but failed to provide a date for the deposition of the PMK. (Stoliker Decl., ¶ 35 & Exh. 12.) On February 20, 2024, Plaintiff transmitted further correspondence to GM. (Id. at ¶ 36 & Exh. 13.) Counsel asserts that GM has failed to produce its PMK or provide a single date for the deposition of its PMK.

GM opposes the motion. GM asserts that Plaintiff has failed to meet and confer in good faith to attempt to resolve this dispute prior to filing the present motion. GM further asserts that it has agreed to produce its PMK with respect to 22 out of the 39 matters for examination described in the second notice, which GM contends fall within the permissible scope of discovery and are relevant. GM also contends that, with respect to the remaining matters for examination described in the second notice, the topics described in these matters go beyond the scope of the claims alleged in this matter and are outside the permissible scope of discovery. For this reason, GM contends that its objections to the second notice are justified.

Analysis

Available information demonstrates that the second notice sets forth 39 matters on which Plaintiff intends to examine the PMK of GM. (See Stoliker Decl., Exh. 7 at pp. 9-39.) GM contends that it has agreed to produce its PMK for matter nos. 3 through 4, 6, 8 through 10, 12 through 15, 19, 21, and 30 through 39. (GM Memorandum at pp. 1, ll. 7-8.)

With respect to matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 described in the second notice, the Court interprets GM’s contentions as an unequivocal refusal to proceed with the deposition with respect to these matters for examination. For this reason, GM’s assertions are tantamount to a nonappearance by the PMK at the deposition noticed by Plaintiff to the extent that GM has failed to assert meritorious objections to matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29.

In addition, and for all reasons described above, it is the Court’s further understanding that the present dispute is centered on whether GM must designate and produce its PMK to testify on GM’s behalf as to matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 described in Exhibit A to the second 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).)

GM has asserted objections to the categories of examination described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 of Exhibit A to the second notice and unequivocally states that it will not produce its PMK in response to these categories. (See Stoliker Decl., Exh. 8 at pp. 3-4, 6, 7, 9, 12-14, 15-18.)

GM contends that Plaintiff failed to meet and confer in good faith before filing the present motion. A motion seeking to compel attendance at a deposition 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.) For this reason, GM’s contention that Plaintiff was required to meet and confer prior to filing the present motion is without merit.

Available information also demonstrates that Plaintiff contacted GM to inquire about its PMK’s appearance at the deposition and dates on which the PMK would be available for deposition. (See Stoliker Decl., Exhs. 10 & 11.) Plaintiff also met and conferred with GM regarding GM’s objections to the second notice. (Id. at Exh. 11.) Therefore, GM’s contention that Plaintiff has failed to sufficiently meet and confer regarding the present dispute is also without merit.

GM further contends that under section 2017.020 and section 2031.310, subdivision (g)(3) and (4), the Court should limit the scope of the discovery sought by Plaintiff in the second notice. Section 2031.310 applies to a motion for an order compelling a further response to an inspection demand. Plaintiff does not seek an order compelling responses to an inspection demand. Therefore, section 2031.310 does not apply to the present dispute. Moreover, 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 or 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 what the Court characterized as “broad categories of documents and other materials”. (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 its PMK to testify as to the topics described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 because, according to GM, matters concerning other customers or other vehicles are not at issue in the present matter and not relevant to Plaintiff’s claims. GM further contends that these matters seek or require GM to disclose trade secret material.

Matter nos. 1 and 2, by their terms, relate solely to the vehicle at issue in the present action. In addition, matter nos. 26 and 27 relate solely to GM’s efforts in this action to search for and preserve discoverable information and appear appropriately limited.

Ostensibly, the categories of examination described in matter nos. 5, 7, 11, 16 through 18, 20, 22 through 25, 28, and 29 encompass and therefore relate to the vehicle at issue in the present action including GM’s warranty processes with respect to the vehicle and defects in the vehicle including GM’s efforts to identify or evaluate the alleged defects, GM’s efforts to communicate information about alleged defects in the vehicle, recalls and other messages or bulletins issued with respect to the vehicle, and other related matters including with respect to advertising of the vehicle.

To the extent the categories described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 relate to the vehicle or encompass matters relating to the vehicle or defects in the vehicle including 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].)

In addition, apart from conclusory and speculative assertions regarding GM’s trade secrets, GM has failed for present purposes to demonstrate how or why the topics described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 necessarily require GM to disclose information that is confidential, proprietary, or otherwise privileged. The Court further notes that on September 27, 2023, the Court issued an order approving a stipulation and protective order (the protective order) entered into by the parties to this matter.

Notwithstanding that the categories described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 may encompass discoverable information with respect to the vehicle as further discussed above, the Court has concerns regarding the broad and potentially unlimited scope of these categories for examination including with respect to subject matter and geographic area. In addition, matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 appear to be unlimited in scope with respect to time.

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 topics or categories described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 include matters which are not properly discoverable or which are privileged. Therefore, the Court cannot conclusively determine whether GM’s objections are meritorious with respect to any specific question.

Notwithstanding concerns regarding the scope of the categories and topics described in matter nos. 1, 2, 5, 7, 11, 16 through 18, 20, and 22 through 29 as further discussed above, these matters encompass and relate to the vehicle, repairs to the vehicle, warranty issues relating 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 its PMK with respect to these categories is improper.

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

The Court further notes that a trial confirmation conference is scheduled in this matter on April 24, 2024. Therefore, the Court will also order the deposition of the PMK of GM to commence on April 12, 2024, at the time and location stated in the second notice, unless the parties agree in writing to a different date. (See Stoliker Decl., Exh. 7.)  

Plaintiff requests an award of monetary sanctions against GM. Sanctions may be imposed for a party’s “[failure] to respond or to submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010, subd. (d).) In addition, “[i]f a motion under subdivision (a) [of section 2025.450] is granted, the Court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the 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).) Under the circumstances present here, the Court finds that an imposition of sanctions against GM would be unjust.

Was this helpful?

This question is for testing whether or not you are a human visitor and to prevent automated spam submissions.