Bryan Finkel vs. General Motors, LLC

34-2022-00318084-CU-BC-GDS: Bryan Finkel vs. General Motors, LLC, a Delaware Limited Liability Company 06/29/2023 Motion to Compel - Other - Civil Law and Motion (Deposition) in Department 54

Tentative Ruling

Plaintiff Bryan Finkel’s (“Plaintiff”) motion to compel Defendant General Motors LLC,’s person most knowledgeable (“PMK”) deposition with production of documents is ruled upon as follows.

In this lemon law action, Plaintiff alleges that he purchased a new 2017 GMC Yukon with express warranties from Defendant General Motors, LLC (“Defendant”). Plaintiff further alleges that his vehicle began to experience transmission problems shortly after purchase, and that he brought the vehicle to Defendant’s authorized dealerships and repair facilities multiple times, but they could not repair the vehicle. Defendant refused to repurchase the vehicle, leading to this lawsuit. Plaintiff’s complaint alleges breach of warranty claims under the Song-Beverly Consumer Warranty Act as well as fraudulent concealment. Plaintiff seeks to have Defendant repurchase the vehicle and demands damages, attorney’s fees, punitive damages, and a civil penalty under Song-Beverly.

No trial date is set.

The parties entered into a stipulated protective order, which the Court signed on December 13, 2022.

Plaintiff seeks to compel Defendant to produce a PMK with respect to 17 categories in addition to 13 requests for production of documents.

Defendant argues that Plaintiff failed to comply with his meet and confer obligations. The Court agrees with Defendant.

Motions to compel deposition attendance and related production of documents are governed by Code of Civil Procedure section 2025.450. Such motions “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc.§ 2025.450(b)(2).)

Code of Civil Procedure section 2016.040 states, “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The meet and confer requirement is “designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order ... .’ [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431,

34-2022-00318084-CU-BC-GDS: Bryan Finkel vs. General Motors, LLC, a Delaware Limited Liability Company 06/29/2023 Motion to Compel - Other - Civil Law and Motion (Deposition) in Department 54

1435.) To satisfy this requirement, the moving party’s declaration must show “that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’” (Id.)

The record demonstrates that Plaintiff served the Notice of Deposition on June 29, 2022. (Declaration of Logan Pacal (“Pascal Decl.”), ¶ 2, Ex. 1.) Plaintiff unilaterally set the deposition date for July 14, 2022, but Plaintiff’s counsel included a meet and confer letter with the notice to invite Defendant's counsel to offer new dates if necessary. (Pascal Decl., ¶ 3, Ex. 1.)

On July 8, 2022, Defendant served its objections to the PMK notice. Defendant did not provide alternative deposition dates. With respect to the PMK categories, Defendant asserted certain objections. Subject to and without waiving said objections, Defendant agreed to produce a PMK as to category nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15. Defendant did not agree to produce a PMK as to category nos. 3, 16, and 17. With respect to the production of documents, Defendant asserted certain objections and agreed to comply, in part, with request nos. 1-8 and 10. Defendant directed Plaintiff to its production of documents in response to Plaintiff’s request for production. Defendant did not agree to produce documents in response to request nos. 9, 11, 12 and 13. (Pascal Decl., ¶ 4, Exh. 2.)

Defendant did not appear at the July 14, 2022 deposition. (Pascal Decl., ¶ 5.)

Plaintiff sent Defendant a meet and confer letter on July 15, 2022. (Pascal Decl., ¶ 6, Exh. 3.) That meet and confer letter did not acknowledge Defendant’s agreement to produce a PMK, subject to certain objections, as to category nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15. Instead, Plaintiff described Defendant’s pattern of “obstruction and delay,” including Defendant’s refusal to produce its PMK for the categories at issue. Plaintiff then devoted most of the letter to arguing that if Defendant intended to produce Laurence Braddell as the PMK, that Braddell did not qualify under the statute.

Plaintiff made no effort to evaluate any of the specific categories to which Defendant agreed to produce (or not produce) a PMK, or the specific document requests to which Defendant agreed to comply, in part (or not comply.) Rather, Plaintiff made blanket arguments regarding Plaintiff’s objections to the categories of topics and document requests. (Pascal Decl., ¶ 6, Exh. 3.) Plaintiff’s letter does not show a serious effort to informally resolve each issue presented by the motion, especially where Defendant agreed to produce a PMK and documents.

Defendant responded on July 22, 2022, disagreeing with Plaintiff’s challenge to Braddell’s qualifications and standing by its objections. (Pascal Decl., ¶ 7, Exh. 4.) Plaintiff’s counsel sent Defendant's counsel an email on August 18, 2022 to schedule a time for deposition as to the categories and requests to which Defendant agreed to produce, but did not receive a response. (Pascal Decl., ¶ 8, Exh. 5.) Plaintiff’s counsel sent follow up emails on March 9th, March 14th, March 20th, and March 31, 2023 to obtain dates for the deposition, but no response was received.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00318084-CU-BC-GDS: Bryan Finkel vs. General Motors, LLC, a Delaware Limited Liability Company 06/29/2023 Motion to Compel - Other - Civil Law and Motion (Deposition) in Department 54

(Id.)

Despite Defendant’s agreement to produce a PMK as to category nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 and to comply, in part, with request nos. 1-8 and 10, and Plaintiff’s apparent acceptance of Defendant’s objections by requesting deposition dates, Plaintiff’s motion now takes issue with the substance of Defendant’s objections and responses. The Court concludes that Plaintiff failed to make a reasonable and good faith attempt to informally resolve each issue presented by the motion. The same is true for category nos. 3, 16, and 17 and document request nos. 9, 11, 12 and 13 since Plaintiff’s meet and confer letter simply made blanket arguments regarding Plaintiff’s objections to the categories of topics and document requests.

The Court's calendar is already significantly impacted, including with similar discovery motions in other lemon law cases. Motions like the one at bar should not regularly appear on the Court's calendar, particularly when they could potentially be avoided with a simple phone call. Indeed, a "central precept" of the discovery statutes is "that civil discovery be essentially self-executing." (Townsend, supra, 61 Cal.App.4th at p. 1434.) Moreover, given the nature of lemon law actions that have been brought before this Court, it is likely that this case is one of many the respective law firms have with each other. Thus, regular communication and informal resolution of disputes would seemingly be easy to accomplish.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Moving counsel’s notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Defendant’s counsel and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Defendant’s counsel prior to hearing, moving counsel is ordered to appear at the hearing.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00318084-CU-BC-GDS: Bryan Finkel vs. General Motors, LLC, a Delaware Limited Liability Company 06/29/2023 Motion to Compel - Other - Civil Law and Motion (Deposition) in Department 54

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.