Preview
1 KNIGHT LAW GROUP, LLP
Roger Kirnos (SBN 283163)
2
rogerk@knightlaw.com
3 Phil A Thomas (SBN 248517)
philt@knightlaw.com
4 10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
5
Telephone: (310) 552-2250
6 Fax: (310) 552-7973
7 Attorneys for Plaintiff,
8 MA ARMENTA ZAVALA
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF MONTEREY
11
12
MA ARMENTA ZAVALA, Case No.: 23CV001042
13 Unlimited Jurisdiction
14 Plaintiff, PLAINTIFF’S NOTICE OF MOTION
AND MOTION TO COMPEL
15 DEPOSITION ATTENDANCE OF A
vs. PERSON MOST QUALIFIED AND
16 CUSTODIAN OF RECORDS OF
DEFENDANT GENERAL MOTORS
17 LLC, AND REQUEST FOR SANCTIONS
GENERAL MOTORS LLC, a Delaware
18 Limited Liability Company, and DOES 1
through 10, inclusive, [Submitted Concurrently with Separate
19 Statement, [Proposed] Order; and
Defendants. Declaration of Phil A Thomas and Exhibits
20 Thereto]
21 Hearing Date: May 3, 2024
Hearing Time: 8:30 a.m.
22 Department: 15
23
Complaint Filed: April 6, 2023
24 Trial Date: May 3, 2025
25
26
27
28
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on May 3, 2024 at 8:30 a.m., or as soon thereafter as
3 could be heard, in Department 15 of this Court located at located at 1200 Aguajito Rd., Monterey,
4 CA 93940, Plaintiff Ma Armenta Zavala (“Plaintiff”) will and hereby does move this Court
5 pursuant to California Code of Civil Procedure, sections 2025.450, subdivision (a), and 2025.480,
6 subdivision (a) for an order compelling Defendant General Motors LLC to produce a Person(s)
7 Most Qualified and Custodian of Records to be deposed in accordance with Code of Civil
8 Procedure section 2025.230.
9 Plaintiff further moves this Court for an order awarding monetary sanctions against
10 Defendant and its counsel of record, Erskine Law Group, pursuant to Code of Civil Procedure,
11 sections 2025.450, subdivision (g)(1), and 2025.480, subdivision (j), for Defendant’s willful and
12 intentional failure to comply with the relevant code sections of the Discovery Act. Plaintiff move
13 for an order for sanctions in the amount of $1,860.00 which constitutes attorney’s fees incurred in
14 drafting this Motion, reviewing and analyzing Defendant’s Opposition, drafting a Reply, and
15
attending the hearing on this matter.
16 This motion is based upon the Memorandum of Points and Authorities attached hereto, the
17 Declaration of Phil A Thomas in Support of the Motion and supporting exhibits filed herewith, the
18 records on file in this action, and upon such evidence, oral and documentary, which may be
19 presented at the hearing on this matter.
20
21 Dated: March 19, 2024 KNIGHT LAW GROUP, LLP
22
23
24
________________________________
25 Roger Kirnos (SBN 283163)
Phil A Thomas (SBN 248517)
26 Attorneys for Plaintiff,
27 MA ARMENTA ZAVALA
28
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Ma Armenta Zavala (“Plaintiff”) seeks to compel the production of a Person(s)
4 Most Qualified and Custodian of Records (“PMQ”) by Defendant General Motors LLC (“GM” or
5 “Defendant”). On January 26, 2024, Plaintiff properly noticed the deposition of Defendant’s PMQ.
6 Defendant objected to all of the matters for examination (“MFEs”) in Plaintiff’s notice of
7 deposition (‘NOD”) but nonetheless claimed to be willing to produce a witness on all MFEs on a
8 “mutually agreeable” date. Plaintiff made five written requests for alternative dates and twice
9 offered to meet and confer by telephone, but not once did Defendant respond.
10 II. STATEMENT OF FACTS
11 On December 3, 2021, Plaintiff purchased a new 2022 Chevrolet Tahoe (the “Subject
12 Vehicle”). The sale of the vehicle was accompanied by express and implied warranties by which
13 Defendant General Motors LLC (“Defendant” or “GM”) undertook to preserve or maintain the
14 utility or performance of Plaintiff’s vehicle or to provide compensation if there was a failure in
15 such utility or performance. Shortly after purchasing the vehicle, Plaintiff began to experience
16 serious defects and nonconformities to warranty, including, but not limited to, electrical defects.
17 Notwithstanding the fact that Plaintiff have delivered the Subject Vehicle to an authorized repair
18 facility on numerous occasions, Defendant has been unable to conform the Subject Vehicle to its
19 applicable warranties and has refused to offer restitution or replacement of Plaintiff’s vehicle as
20 required under the Song- Beverly Consumer Warranty Act (the “Song-Beverly Act”). Based on
21 Defendant’s misconduct, Plaintiff filed suit alleging violations of the Song-Beverly Act.
22 (Declaration of Phil A Thomas, “Thomas Decl.,” ¶ 2.)
23 In preparation for trial, on January 26, 2024, Plaintiff served Defendant with a Notice of
24 Deposition of Defendant’s PMQ. Plaintiff’s Notice of Deposition identified with reasonable
25 particularity four (4) matters for examination and six (6) requests for document production.
26 Plaintiff’s matters for examination included matters related to GM’s pre-litigation analysis as to
27 whether the Subject Vehicle should be repurchased, all repairs and service performed on the
28 Subject Vehicle. GM’s policies and procedures for determining whether a vehicle qualifies for a
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 repurchase or replacement under the Song-Beverly Act, and GM’s training for evaluating a pre-
2 litigation repurchase request under the Song-Beverly Act. (Thomas Decl., ¶ 3, Exh. A.)
3 Although the deposition was noticed for March 12, 2024, Plaintiff requested that
4 Defendant provide alternative dates for the deposition by February 20, 2024 if that date did not
5 work. (Thomas Decl. ¶ 4, Exh. B).
6 On February 29, 2024, Defendant served Objections to Plaintiff’s Notice of Deposition
7 stating that no witness would be produced on the noticed date. Defendant stated that it would be
8 willing to produce a witness on all noticed matters for examination (“MFEs”) subject to numerous
9 unilaterally imposed restrictions on a “mutually agreeable” date, but offered no dates for the
10 deposition to go forward. Defendant also objected to each of Plaintiff’s Categories of Documents
11 to be Produced, but stated that it had already produced responsive documents in response to
12 Plaintiff’s Requests for Production. Defendant produced some documents that may be responsive
13 to some of Plaintiff’s RFPs on February 15, 2024. However, what Defendant produced is hundreds
14 of pages identified only by a bates number. Defendant did not serve verified supplemental
15 responses to Plaintiff’s RFPs that identify which documents are responsive to which requests as
16 required by Code of Civil Procedure § 2031.280(a). (Thomas Decl. ¶ 5, Exh. C.)
17 On March 6, 2024, Plaintiff sent Defendant a detailed meet and confer letter addressing
18 the deficiencies in Defendant’s Objections to Plaintiff’s Notice of Deposition, and offering to meet
19 and confer by telephone at a mutually agreeable date and time. (Thomas Decl. ¶ 6, Exh. D).
20 On March 12, 2024, Plaintiff sent Defendant a video link to enable Defendant’s witness
21 to participate in the deposition. (Thomas Decl. ¶ 7, Exh. B).
22 On March 12, 2024, at 1:00 p.m., Plaintiff logged on to the video link for the deposition
23 and stayed on for 30 minutes but Defendant did not appear. Plaintiff then sent Defendant an email
24 inquiring about the non-appearance and offering Defendant an additional three business days to
25 provide dates for the deposition. Plaintiff also addressed Defendant’s objections to all MFEs and
26 offered to meet and confer by phone at a mutually agreeable date and time. Defendant did not
27 respond to this email. (Thomas Decl. ¶ 8, Exh E.).
28 Plaintiff sent one final email to Defendant on March 18, 2024 requesting dates for the
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 deposition. In total, Plaintiff sent Defendant six requests for the dates Defendant claims to be
2 willing to provide, along with two offers to meet and confer by telephone, and not once did
3 Defendant respond. (Thomas Decl. ¶ 9, Exh. B, D, E).
4 Since July 31, 2023, Plaintiff’s counsel has served approximately 400 nearly identical
5 notices of deposition for Defendant’s PMQ. In every case in which Defendant has remembered to
6 serve objections, Defendant has refused to produce a witness. Defendant often states that it would
7 be willing to produce a witness for some or all noticed MFEs (subject to numerous unilaterally
8 imposed restrictions) “on a mutually agreeable date” but provides Plaintiff’s counsel with no dates.
9 Indeed, despite making this claim on nearly 300 occasions, not one has Defendant offered and kept
10 deposition dates for all noticed MFEs. (Thomas Decl. ¶ 10).
11 Since November 9, 2023, after losing a number of motions to compel, Defendant has
12 offered a total of nine dates for depositions, all of which Plaintiff’s counsel accepted. 18 partial
13 depositions were scheduled for these dates, but seven were cancelled by Defendant. Ten
14 depositions have gone forward on MFEs 1 and 2, and one on MFEs 3 and 4. (Thomas Decl. ¶ 11).
15 Defendant’s practice when offering dates for depositions is to send a list of 10-15 cases
16 and to tell Plaintiff’s counsel to choose which cases will have depositions taken in the 1 or 2
17 available time slots, although this case has never been on any of Defendants’ lists. Defendant then
18 states in opposition papers and in hearings on all of the 10-15 listed cases that it has offered dates
19 for deposition in all of those cases. Defendant’s claim is at a minimum misleading, as it is
20 impossible for Plaintiff’s counsel to take 10-15 depositions in 1 or 2 time slots. (Thomas Decl. ¶
21 12).
22 On the rare occasions when Defendant does offer deposition dates, Plaintiff’s counsel
23 schedules no more than two partial depositions per day. This is because Plaintiff’s counsel expects
24 Defendant to provide competent witnesses, for whom a partial deposition could take up to three
25 hours. However, in all of the eleven partial depositions that have gone forward, Defendant has
26 failed to provide a competent witness. As Defendant’s witnesses knew little about the subject
27 matter for which they were presented, Plaintiff’s counsel terminated these depositions after
28 approximately one hour. Defendant may argue in its opposition papers or at oral argument that
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 there is something improper about Plaintiff’s counsel concluding depositions sooner than
2 Defendant would like. This argument is irrelevant at this stage, as Defendant has offered no dates
3 for deposition in this case. This argument is also inapposite, as the fault lies solely with Defendant
4 due to its failure to provide competent witnesses. (Thomas Decl. ¶ 13).
5 In 46 cases, Defendant has been ordered to produce a witness on some or all noticed MFEs
6 by March 18, 2023, but not once has Defendant fully complied. Defendant’s strategy is clearly to
7 run out the clock and hope that the trial date arrives before Plaintiff’s counsel can successfully
8 compel the deposition of Defendant’s PMQ. (Thomas Decl. ¶ 14).
9 Defendant will complain in its Opposition that Plaintiff have failed to meet and confer
10 regarding the substance of Defendant’s objections, but this claim is without merit for two reasons.
11 First is that Plaintiff’s counsel has addressed the substance of Defendant’s objections in this and
12 hundreds of other cases in writing, and—on the few occasions when Defendant has been willing
13 and has kept appointments it made—by telephone. On those occasions when Defendant does
14 respond to Plaintiff’s counsel’s meet and confer efforts, its answer is always no. Second is that
15 the substance of Defendant’s objections is simply irrelevant given Defendant’s stated willingness
16 to produce a witness on a “mutually agreeable” date. (Thomas Decl. ¶ 15).
17 Having exhausted all meet and confer efforts Plaintiff now file the current motion to
18 compel Defendant’s PMQ deposition based on Plaintiff’s Notice of Deposition.
19 III. ARGUMENT
20 A. Plaintiff is Entitled to an Order Compelling Defendant to Produce its PMQ
Because Plaintiff Have Satisfied the Statutory Requirements for Bringing
21 This Motion
22 The Discovery Act allows “[a]ny party [to] obtain discovery . . . by taking in California the
23 oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)
24 The service of a deposition notice makes attendance by any party deponent—including the
25 designated Person Most Qualified—and production of any requested document mandatory. (Code
26 Civ. Proc., § 2025.280, subd. (a).)This notice must be served at least 10 days prior to the date
27 scheduled for the deposition. (Code Civ. Proc., § 2025.270, subd. (a).) If the deponent is not a
28
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 natural person, the notice must “describe with reasonable particularity the matters on which
2 examination is requested.” (Code Civ. Proc., §§ 2025.230, 2020.310, italics added.) The deponent
3 is then required to “designate and produce at the deposition those of their officers, directors,
4 managing agents, employees, or agents who are most qualified to testify on their behalf as to those
5 matters to the extent of any information known or reasonably available to the deponent.” (Code
6 Civ. Proc., § 2025.230, italics added.) “[T]he deposition proceeding is initiated by notice alone.
7 The statutes confer upon litigants the right to take the deposition in a pending case . . . without
8 prior court order and without a showing of good cause.” (Snyder v. Super. Ct. (1970) 9 Cal.App.3d
9 579, 585, see also, Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 388.) If, after receiving
10 notice, a party fails to appear, to answer any question, or to produce any document or tangible
11 thing specified in the deposition notice, the party seeking discovery may move the court for an
12 order compelling attendance and production. (Code Civ. Proc., §§ 2025.450, subd. (a), 2025.480,
13 subdivision (a).)
14 A motion to compel deposition attendance and production of documents must set forth
15 specific facts showing good cause justifying the relief requested. (Code Civ. Proc. §§ 2025.450,
16 subd. (b), 2025.480.) Good cause is established by a showing that the request is made in good faith
17 and the documents sought are relevant to the subject matter of the action and material to the issues
18 in the litigation. (Associated Brewers Dist. Co. v. Super. Ct. (1967) 65 Cal.2d 583, 588.) The
19 purpose of civil discovery is clear; in enacting the discovery statutes the Legislature “intended to
20 take the ‘game’ element out of trial preparation” by assisting the parties in obtaining the facts and
21 evidence necessary to expeditious resolution of their dispute. (Greyhound Corp. v. Super. Ct.,
22 supra, 56 Cal.2d at p. 376.)
23 Here, Plaintiff timely served Defendant with a Notice of Deposition. Plaintiff’s Notice of
24 Deposition was proper because the matters for examination were reasonably particularized. In
25 evaluating whether these matters are reasonably particularized, it is clear that—under any
26 reasonable interpretation of the “reasonably particularized” standard—Plaintiff’s list satisfies that
27 standard. For example, Plaintiff’s list contains matters related to GM’s pre-litigation analysis as to
28 whether the Subject Vehicle should be repurchased, all repairs and service performed on the
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 Subject Vehicle. GM’s policies and procedures for determining whether a vehicle qualifies for a
2 repurchase or replacement under the Song-Beverly Act, and GM’s training for evaluating a pre-
3 litigation repurchase request under the Song-Beverly Act.
4 B. Plaintiff’s Meet and Confer Efforts Were More Than Sufficient
5 Plaintiff addressed the substance of Defendant’s objections twice, once in a letter and once
6 in an email. Plaintiff requested alternative dates for the deposition on five occasions, and twice
7 offered to meet and confer by telephone. Not once did Defendant respond. (Thomas Decl. ¶¶ 4,
8 6, 8, 9, Exh. B, D, E).
9 C. The Matters for Examination in Plaintiff’s Notice Are Relevant and Material
10 to Plaintiff’s Song-Beverly Act Claims
11 There is good cause to compel the deposition of Defendant’s PMQ because the information
12 sought is relevant to Plaintiff’s claims under the Song-Beverly Act. Code of Civil Procedure
13 section 2017.010 provides in relevant part that “any party may obtain discovery regarding any
14 matter, not privileged, that is relevant to the subject matter . . . if the matter either is itself
15 admissible in evidence or appears reasonably calculated to lead to the discovery of admissible
16 evidence . . . .” (Code Civ. Proc., § 2017.010.) Courts construe the discovery statutes, like the one
17 above, broadly so as to uphold the right to discovery wherever possible. (Greyhound Corp. v.
18 Super. Ct., supra, 56 Cal.2d at pp. 377-378.) To that end, courts have interpreted the relevance
19 standard in section 2017.010 to mean that information is relevant if it “might reasonably assist a
20 party in evaluating the case, preparing for trial, or facilitating settlement.” (See Gonzalez v. Super.
21 Ct. (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Super. Ct. (1996) 48 Cal.App.4th 1599, 1611.)
22 Similarly, courts have construed the phrase “reasonably calculated to lead to the discovery of
23 admissible evidence” to mean that “discovery extends to any information that reasonably might
24 lead to other evidence that would be admissible.” (See Lipton v. Super. Ct., supra, 48 Cal.App.4th
25 at p. 1611.) “When disputed facts provide a basis for the exercise of discretion, those facts should
26 be liberally construed in favor of discovery.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097,
27 1108-09.)
28 To establish a prima facie case under the Song-Beverly Act, Plaintiff are required to
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 demonstrate that: (1) Plaintiff bought or leased a new motor vehicle from Defendant; (2) Defendant
2 provided a written warranty; (3) the vehicle had a defect covered by the warranty that substantially
3 impaired its use, value, or safety; (4) Plaintiff delivered the vehicle to an authorized repair facility
4 for repair of the defect(s); (5) the repair facility failed to repair the vehicle to conform to the written
5 warranty after a reasonable number of opportunities to do so; and (6) Defendant did not promptly
6 replace or buy back the vehicle. (CACI No. 3201.) Plaintiff is also seeking civil penalties against
7 Defendant for its willful violation of the Song-Beverly Act. (Civ. Code, § 1794, subd. (c).)
8 Matters related to GM’s pre-litigation analysis as to whether the Subject Vehicle should be
9 repurchased, all repairs and service performed on the Subject Vehicle, GM’s policies and
10 procedures for determining whether a vehicle qualifies for a repurchase or replacement under the
11 Song-Beverly Act, and GM’s training for evaluating a pre-litigation repurchase request under the
12 Song-Beverly Act are relevant to proving Plaintiff’s claims under the Song-Beverly Act. More
13 specifically, these matters are relevant to an analysis of the criteria that Defendant uses to
14 determine whether a vehicle is a “lemon” in compliance with the Song Beverly Consumer
15 Warranty Act and subject to a buyback or replacement. (See Oregel v. American Isuzu Motors Inc.
16 (1995) 90 Cal.App.4th 1094 [finding liability for a civil penalty where manufacturer’s corporate
17 policy discounted a repair attempt under the Song-Beverly Act if the problem could not be
18 verified]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136 [concluding that
19 in determining whether a defendant’s violation was willful, a jury may consider “whether the
20 manufacturer had a written policy on the requirement to repair or replace.”].)
21 The requested information is also relevant to determine whether Defendant, in dealing
22 with Plaintiff, acted in good faith and in a manner that comports with the lemon law or, instead,
23 sought to avoid repurchasing or replacing Plaintiff’s vehicle. This determination is important
24 because, although Plaintiff are entitled to a civil penalty if Defendant’s violation of the Song-
25 Beverly Act was willful, Defendant’s violation is not willful if its failure to replace or refund was
26 the result of a good faith and reasonable belief that the facts imposing the statutory obligation were
27 not present. Defendant’s policies and procedures are, therefore, relevant to show whether
28 Defendant’s conduct lacked good faith. (Kwan v. Mercedes-Benz of North America (1994) 23
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 Cal.App.4th 174, 186 [concluding that a manufacturer’s lack of a written policy regarding the
2 repurchase and replacement of vehicles under the Song-Beverly Act is important to determining
3 whether Defendant lacked good faith.].) Because Plaintiff have demonstrated that good cause
4 exists and because the requested documents and categories of examination are reasonably
5 calculated to lead to the discovery of admissible evidence, (Oregel v. American Isuzu Motors, Inc.,
6 supra, 90 Cal.App.4th at p. 1104; Kwan v. Mercedes-Benz of North America, supra, 23 Cal.App.4th
7 at p. 185), Defendant should be compelled to produce its PMQ for deposition.
8 D. The Court Should Award Sanctions Against Defendant for Its Willful Abuse
of the Discovery Process Because Defendant Did Not Act with Substantial
9 Justification
10 The court shall impose a monetary sanction against any party, person, or attorney who
11 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that
12 the one subject to the sanction acted with substantial justification or that other circumstances make
13 the imposition of sanctions unjust. (Code Civ. Proc. §§ 2025.450, subd. (g)(1), 2025.480,
14 subdivision (j). Here, Defendant failed to produce a PMQ to testify at its properly noticed
15 deposition and failed to respond to Plaintiff’s meet and confer efforts by actually providing a date
16 for the deposition. When a party willfully refuses to attend a properly noticed deposition, an award
17 of sanctions is merited and not punitive. (Snyder v. Super. Ct. (1970) 9 Cal.App.3d 579, 587.)
18 Defendant’s conduct is without substantial justification and there are no circumstances
19 making the imposition of sanctions unjust. Therefore, Plaintiff request that monetary sanctions be
20 awarded against Defendant General Motors LLC and its counsel of record in the amount of
21 $1,860.00 (See Thomas Decl., ¶¶ 16-18.)
22 D. The Court Should Order Defendant to Produce Its Witness Within 7 Days
23 Plaintiff respectfully requests that the Court order Defendant to produce its witness on all
24 noticed MFEs within seven calendar days. If the Court grants Plaintiff’s motion, Defendant will
25 likely argue that it needs 60 days to comply, but there are several reasons for which this is not true.
26 First is that no depositions are scheduled after the hearing date for this motion. Whatever
27 Defendant’s witnesses are doing with their time, it certainly isn’t giving depositions, so they can
28
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
1 easily make themselves available. Second is that Defendant likely has no intention of complying
2 with any order the Court issues to produce a witness. In the cases described above, Defendant has
3 been given compliance deadlines ranging from 10 to 60 days, and not once has Defendant fully
4 complied.
5 Plaintiff can virtually guarantee that another motion will be necessary to secure
6 Defendant’s compliance with any order the Court issues to produce a witness. Plaintiff therefore
7 respectfully requests a seven day compliance deadline so that when Defendant fails to comply
8 there will be sufficient time for Plaintiff’s compliance motion to be heard prior to the currently
9 scheduled trial date. Plaintiff will be ready for trial by the currently scheduled date and does not
10 want it continued, as a continuance would simply delay justice for those harmed by Defendant’s
11 defective vehicle.
12 IV. CONCLUSION
13 For the foregoing reasons, Plaintiff request that this Court (i) order Defendant to produce
14 its PMQ to competently and fully testify as to each matter of examination contained in the
15 operative notice of deposition and to produce all requested documents within seven calendar days,
16 and (ii) award sanctions against Defendant and its counsel of record in the amount of $1,860.00.
17
18
Dated: March 19, 2024 KNIGHT LAW GROUP, LLP
19
20
21
22
23 ______________________________
Roger Kirnos (SBN 283163)
24 Phil A Thomas (SBN 248517)
Attorneys for Plaintiff,
25 MA ARMENTA ZAVALA
26
27
28
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PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE
PROOF OF SERVICE
1
(Code of Civil Procedure §1013a)
2
I am employed in the County of Los Angeles, State of California. I am over the age of
3 18 years and not a party to the within action. My business address is 10250 Constellation
Blvd., Suite 2500, Los Angeles, CA 90067.
4
5 On Tuesday, March 19, 2024, I served electronic copies of the foregoing documents
described as:
6
7 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL
DEPOSITION ATTENDANCE OF A PERSON MOST QUALIFIED
8 AND CUSTODIAN OF RECORDS OF DEFENDANT GENERAL
MOTORS LLC, AND REQUEST FOR SANCTIONS
9
On the intended parties in this action as follows:
10
Cameron Major, Esq.
11
ERSKINE LAW GROUP, APC
12 1576 N. Batavia Street, Suite A
Orange, CA 92867
13 eservice-ca@erskinelaw.com
14 Counsel for Defendant,
GENERAL MOTORS LLC
15
16
17
18
19
20 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused
21
the documents to be sent to the persons at the e-mail addresses listed above. I did not
22 receive, within a reasonable time after the transmission, any electronic message or other
indication that the transmission was unsuccessful.
23
I declare under penalty of perjury under the laws of the State of California that the
24
foregoing is true and correct.
25
Executed this Tuesday, March 19, 2024 at Los Angeles, California.
26
27
_________________________
28 Norman Little
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PROOF OF SERVICE
Preview
1 KNIGHT LAW GROUP, LLP Roger Kirnos (SBN 283163) 2 rogerk@knightlaw.com 3 Phil A Thomas (SBN 248517) philt@knightlaw.com 4 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 5 Telephone: (310) 552-2250 6 Fax: (310) 552-7973 7 Attorneys for Plaintiff, 8 MA ARMENTA ZAVALA 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF MONTEREY 11 12 MA ARMENTA ZAVALA, Case No.: 23CV001042 13 Unlimited Jurisdiction 14 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 15 DEPOSITION ATTENDANCE OF A vs. PERSON MOST QUALIFIED AND 16 CUSTODIAN OF RECORDS OF DEFENDANT GENERAL MOTORS 17 LLC, AND REQUEST FOR SANCTIONS GENERAL MOTORS LLC, a Delaware 18 Limited Liability Company, and DOES 1 through 10, inclusive, [Submitted Concurrently with Separate 19 Statement, [Proposed] Order; and Defendants. Declaration of Phil A Thomas and Exhibits 20 Thereto] 21 Hearing Date: May 3, 2024 Hearing Time: 8:30 a.m. 22 Department: 15 23 Complaint Filed: April 6, 2023 24 Trial Date: May 3, 2025 25 26 27 28 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on May 3, 2024 at 8:30 a.m., or as soon thereafter as 3 could be heard, in Department 15 of this Court located at located at 1200 Aguajito Rd., Monterey, 4 CA 93940, Plaintiff Ma Armenta Zavala (“Plaintiff”) will and hereby does move this Court 5 pursuant to California Code of Civil Procedure, sections 2025.450, subdivision (a), and 2025.480, 6 subdivision (a) for an order compelling Defendant General Motors LLC to produce a Person(s) 7 Most Qualified and Custodian of Records to be deposed in accordance with Code of Civil 8 Procedure section 2025.230. 9 Plaintiff further moves this Court for an order awarding monetary sanctions against 10 Defendant and its counsel of record, Erskine Law Group, pursuant to Code of Civil Procedure, 11 sections 2025.450, subdivision (g)(1), and 2025.480, subdivision (j), for Defendant’s willful and 12 intentional failure to comply with the relevant code sections of the Discovery Act. Plaintiff move 13 for an order for sanctions in the amount of $1,860.00 which constitutes attorney’s fees incurred in 14 drafting this Motion, reviewing and analyzing Defendant’s Opposition, drafting a Reply, and 15 attending the hearing on this matter. 16 This motion is based upon the Memorandum of Points and Authorities attached hereto, the 17 Declaration of Phil A Thomas in Support of the Motion and supporting exhibits filed herewith, the 18 records on file in this action, and upon such evidence, oral and documentary, which may be 19 presented at the hearing on this matter. 20 21 Dated: March 19, 2024 KNIGHT LAW GROUP, LLP 22 23 24 ________________________________ 25 Roger Kirnos (SBN 283163) Phil A Thomas (SBN 248517) 26 Attorneys for Plaintiff, 27 MA ARMENTA ZAVALA 28 -1- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Ma Armenta Zavala (“Plaintiff”) seeks to compel the production of a Person(s) 4 Most Qualified and Custodian of Records (“PMQ”) by Defendant General Motors LLC (“GM” or 5 “Defendant”). On January 26, 2024, Plaintiff properly noticed the deposition of Defendant’s PMQ. 6 Defendant objected to all of the matters for examination (“MFEs”) in Plaintiff’s notice of 7 deposition (‘NOD”) but nonetheless claimed to be willing to produce a witness on all MFEs on a 8 “mutually agreeable” date. Plaintiff made five written requests for alternative dates and twice 9 offered to meet and confer by telephone, but not once did Defendant respond. 10 II. STATEMENT OF FACTS 11 On December 3, 2021, Plaintiff purchased a new 2022 Chevrolet Tahoe (the “Subject 12 Vehicle”). The sale of the vehicle was accompanied by express and implied warranties by which 13 Defendant General Motors LLC (“Defendant” or “GM”) undertook to preserve or maintain the 14 utility or performance of Plaintiff’s vehicle or to provide compensation if there was a failure in 15 such utility or performance. Shortly after purchasing the vehicle, Plaintiff began to experience 16 serious defects and nonconformities to warranty, including, but not limited to, electrical defects. 17 Notwithstanding the fact that Plaintiff have delivered the Subject Vehicle to an authorized repair 18 facility on numerous occasions, Defendant has been unable to conform the Subject Vehicle to its 19 applicable warranties and has refused to offer restitution or replacement of Plaintiff’s vehicle as 20 required under the Song- Beverly Consumer Warranty Act (the “Song-Beverly Act”). Based on 21 Defendant’s misconduct, Plaintiff filed suit alleging violations of the Song-Beverly Act. 22 (Declaration of Phil A Thomas, “Thomas Decl.,” ¶ 2.) 23 In preparation for trial, on January 26, 2024, Plaintiff served Defendant with a Notice of 24 Deposition of Defendant’s PMQ. Plaintiff’s Notice of Deposition identified with reasonable 25 particularity four (4) matters for examination and six (6) requests for document production. 26 Plaintiff’s matters for examination included matters related to GM’s pre-litigation analysis as to 27 whether the Subject Vehicle should be repurchased, all repairs and service performed on the 28 Subject Vehicle. GM’s policies and procedures for determining whether a vehicle qualifies for a -2- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 repurchase or replacement under the Song-Beverly Act, and GM’s training for evaluating a pre- 2 litigation repurchase request under the Song-Beverly Act. (Thomas Decl., ¶ 3, Exh. A.) 3 Although the deposition was noticed for March 12, 2024, Plaintiff requested that 4 Defendant provide alternative dates for the deposition by February 20, 2024 if that date did not 5 work. (Thomas Decl. ¶ 4, Exh. B). 6 On February 29, 2024, Defendant served Objections to Plaintiff’s Notice of Deposition 7 stating that no witness would be produced on the noticed date. Defendant stated that it would be 8 willing to produce a witness on all noticed matters for examination (“MFEs”) subject to numerous 9 unilaterally imposed restrictions on a “mutually agreeable” date, but offered no dates for the 10 deposition to go forward. Defendant also objected to each of Plaintiff’s Categories of Documents 11 to be Produced, but stated that it had already produced responsive documents in response to 12 Plaintiff’s Requests for Production. Defendant produced some documents that may be responsive 13 to some of Plaintiff’s RFPs on February 15, 2024. However, what Defendant produced is hundreds 14 of pages identified only by a bates number. Defendant did not serve verified supplemental 15 responses to Plaintiff’s RFPs that identify which documents are responsive to which requests as 16 required by Code of Civil Procedure § 2031.280(a). (Thomas Decl. ¶ 5, Exh. C.) 17 On March 6, 2024, Plaintiff sent Defendant a detailed meet and confer letter addressing 18 the deficiencies in Defendant’s Objections to Plaintiff’s Notice of Deposition, and offering to meet 19 and confer by telephone at a mutually agreeable date and time. (Thomas Decl. ¶ 6, Exh. D). 20 On March 12, 2024, Plaintiff sent Defendant a video link to enable Defendant’s witness 21 to participate in the deposition. (Thomas Decl. ¶ 7, Exh. B). 22 On March 12, 2024, at 1:00 p.m., Plaintiff logged on to the video link for the deposition 23 and stayed on for 30 minutes but Defendant did not appear. Plaintiff then sent Defendant an email 24 inquiring about the non-appearance and offering Defendant an additional three business days to 25 provide dates for the deposition. Plaintiff also addressed Defendant’s objections to all MFEs and 26 offered to meet and confer by phone at a mutually agreeable date and time. Defendant did not 27 respond to this email. (Thomas Decl. ¶ 8, Exh E.). 28 Plaintiff sent one final email to Defendant on March 18, 2024 requesting dates for the -3- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 deposition. In total, Plaintiff sent Defendant six requests for the dates Defendant claims to be 2 willing to provide, along with two offers to meet and confer by telephone, and not once did 3 Defendant respond. (Thomas Decl. ¶ 9, Exh. B, D, E). 4 Since July 31, 2023, Plaintiff’s counsel has served approximately 400 nearly identical 5 notices of deposition for Defendant’s PMQ. In every case in which Defendant has remembered to 6 serve objections, Defendant has refused to produce a witness. Defendant often states that it would 7 be willing to produce a witness for some or all noticed MFEs (subject to numerous unilaterally 8 imposed restrictions) “on a mutually agreeable date” but provides Plaintiff’s counsel with no dates. 9 Indeed, despite making this claim on nearly 300 occasions, not one has Defendant offered and kept 10 deposition dates for all noticed MFEs. (Thomas Decl. ¶ 10). 11 Since November 9, 2023, after losing a number of motions to compel, Defendant has 12 offered a total of nine dates for depositions, all of which Plaintiff’s counsel accepted. 18 partial 13 depositions were scheduled for these dates, but seven were cancelled by Defendant. Ten 14 depositions have gone forward on MFEs 1 and 2, and one on MFEs 3 and 4. (Thomas Decl. ¶ 11). 15 Defendant’s practice when offering dates for depositions is to send a list of 10-15 cases 16 and to tell Plaintiff’s counsel to choose which cases will have depositions taken in the 1 or 2 17 available time slots, although this case has never been on any of Defendants’ lists. Defendant then 18 states in opposition papers and in hearings on all of the 10-15 listed cases that it has offered dates 19 for deposition in all of those cases. Defendant’s claim is at a minimum misleading, as it is 20 impossible for Plaintiff’s counsel to take 10-15 depositions in 1 or 2 time slots. (Thomas Decl. ¶ 21 12). 22 On the rare occasions when Defendant does offer deposition dates, Plaintiff’s counsel 23 schedules no more than two partial depositions per day. This is because Plaintiff’s counsel expects 24 Defendant to provide competent witnesses, for whom a partial deposition could take up to three 25 hours. However, in all of the eleven partial depositions that have gone forward, Defendant has 26 failed to provide a competent witness. As Defendant’s witnesses knew little about the subject 27 matter for which they were presented, Plaintiff’s counsel terminated these depositions after 28 approximately one hour. Defendant may argue in its opposition papers or at oral argument that -4- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 there is something improper about Plaintiff’s counsel concluding depositions sooner than 2 Defendant would like. This argument is irrelevant at this stage, as Defendant has offered no dates 3 for deposition in this case. This argument is also inapposite, as the fault lies solely with Defendant 4 due to its failure to provide competent witnesses. (Thomas Decl. ¶ 13). 5 In 46 cases, Defendant has been ordered to produce a witness on some or all noticed MFEs 6 by March 18, 2023, but not once has Defendant fully complied. Defendant’s strategy is clearly to 7 run out the clock and hope that the trial date arrives before Plaintiff’s counsel can successfully 8 compel the deposition of Defendant’s PMQ. (Thomas Decl. ¶ 14). 9 Defendant will complain in its Opposition that Plaintiff have failed to meet and confer 10 regarding the substance of Defendant’s objections, but this claim is without merit for two reasons. 11 First is that Plaintiff’s counsel has addressed the substance of Defendant’s objections in this and 12 hundreds of other cases in writing, and—on the few occasions when Defendant has been willing 13 and has kept appointments it made—by telephone. On those occasions when Defendant does 14 respond to Plaintiff’s counsel’s meet and confer efforts, its answer is always no. Second is that 15 the substance of Defendant’s objections is simply irrelevant given Defendant’s stated willingness 16 to produce a witness on a “mutually agreeable” date. (Thomas Decl. ¶ 15). 17 Having exhausted all meet and confer efforts Plaintiff now file the current motion to 18 compel Defendant’s PMQ deposition based on Plaintiff’s Notice of Deposition. 19 III. ARGUMENT 20 A. Plaintiff is Entitled to an Order Compelling Defendant to Produce its PMQ Because Plaintiff Have Satisfied the Statutory Requirements for Bringing 21 This Motion 22 The Discovery Act allows “[a]ny party [to] obtain discovery . . . by taking in California the 23 oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) 24 The service of a deposition notice makes attendance by any party deponent—including the 25 designated Person Most Qualified—and production of any requested document mandatory. (Code 26 Civ. Proc., § 2025.280, subd. (a).)This notice must be served at least 10 days prior to the date 27 scheduled for the deposition. (Code Civ. Proc., § 2025.270, subd. (a).) If the deponent is not a 28 -5- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 natural person, the notice must “describe with reasonable particularity the matters on which 2 examination is requested.” (Code Civ. Proc., §§ 2025.230, 2020.310, italics added.) The deponent 3 is then required to “designate and produce at the deposition those of their officers, directors, 4 managing agents, employees, or agents who are most qualified to testify on their behalf as to those 5 matters to the extent of any information known or reasonably available to the deponent.” (Code 6 Civ. Proc., § 2025.230, italics added.) “[T]he deposition proceeding is initiated by notice alone. 7 The statutes confer upon litigants the right to take the deposition in a pending case . . . without 8 prior court order and without a showing of good cause.” (Snyder v. Super. Ct. (1970) 9 Cal.App.3d 9 579, 585, see also, Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 388.) If, after receiving 10 notice, a party fails to appear, to answer any question, or to produce any document or tangible 11 thing specified in the deposition notice, the party seeking discovery may move the court for an 12 order compelling attendance and production. (Code Civ. Proc., §§ 2025.450, subd. (a), 2025.480, 13 subdivision (a).) 14 A motion to compel deposition attendance and production of documents must set forth 15 specific facts showing good cause justifying the relief requested. (Code Civ. Proc. §§ 2025.450, 16 subd. (b), 2025.480.) Good cause is established by a showing that the request is made in good faith 17 and the documents sought are relevant to the subject matter of the action and material to the issues 18 in the litigation. (Associated Brewers Dist. Co. v. Super. Ct. (1967) 65 Cal.2d 583, 588.) The 19 purpose of civil discovery is clear; in enacting the discovery statutes the Legislature “intended to 20 take the ‘game’ element out of trial preparation” by assisting the parties in obtaining the facts and 21 evidence necessary to expeditious resolution of their dispute. (Greyhound Corp. v. Super. Ct., 22 supra, 56 Cal.2d at p. 376.) 23 Here, Plaintiff timely served Defendant with a Notice of Deposition. Plaintiff’s Notice of 24 Deposition was proper because the matters for examination were reasonably particularized. In 25 evaluating whether these matters are reasonably particularized, it is clear that—under any 26 reasonable interpretation of the “reasonably particularized” standard—Plaintiff’s list satisfies that 27 standard. For example, Plaintiff’s list contains matters related to GM’s pre-litigation analysis as to 28 whether the Subject Vehicle should be repurchased, all repairs and service performed on the -6- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 Subject Vehicle. GM’s policies and procedures for determining whether a vehicle qualifies for a 2 repurchase or replacement under the Song-Beverly Act, and GM’s training for evaluating a pre- 3 litigation repurchase request under the Song-Beverly Act. 4 B. Plaintiff’s Meet and Confer Efforts Were More Than Sufficient 5 Plaintiff addressed the substance of Defendant’s objections twice, once in a letter and once 6 in an email. Plaintiff requested alternative dates for the deposition on five occasions, and twice 7 offered to meet and confer by telephone. Not once did Defendant respond. (Thomas Decl. ¶¶ 4, 8 6, 8, 9, Exh. B, D, E). 9 C. The Matters for Examination in Plaintiff’s Notice Are Relevant and Material 10 to Plaintiff’s Song-Beverly Act Claims 11 There is good cause to compel the deposition of Defendant’s PMQ because the information 12 sought is relevant to Plaintiff’s claims under the Song-Beverly Act. Code of Civil Procedure 13 section 2017.010 provides in relevant part that “any party may obtain discovery regarding any 14 matter, not privileged, that is relevant to the subject matter . . . if the matter either is itself 15 admissible in evidence or appears reasonably calculated to lead to the discovery of admissible 16 evidence . . . .” (Code Civ. Proc., § 2017.010.) Courts construe the discovery statutes, like the one 17 above, broadly so as to uphold the right to discovery wherever possible. (Greyhound Corp. v. 18 Super. Ct., supra, 56 Cal.2d at pp. 377-378.) To that end, courts have interpreted the relevance 19 standard in section 2017.010 to mean that information is relevant if it “might reasonably assist a 20 party in evaluating the case, preparing for trial, or facilitating settlement.” (See Gonzalez v. Super. 21 Ct. (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Super. Ct. (1996) 48 Cal.App.4th 1599, 1611.) 22 Similarly, courts have construed the phrase “reasonably calculated to lead to the discovery of 23 admissible evidence” to mean that “discovery extends to any information that reasonably might 24 lead to other evidence that would be admissible.” (See Lipton v. Super. Ct., supra, 48 Cal.App.4th 25 at p. 1611.) “When disputed facts provide a basis for the exercise of discretion, those facts should 26 be liberally construed in favor of discovery.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 27 1108-09.) 28 To establish a prima facie case under the Song-Beverly Act, Plaintiff are required to -7- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 demonstrate that: (1) Plaintiff bought or leased a new motor vehicle from Defendant; (2) Defendant 2 provided a written warranty; (3) the vehicle had a defect covered by the warranty that substantially 3 impaired its use, value, or safety; (4) Plaintiff delivered the vehicle to an authorized repair facility 4 for repair of the defect(s); (5) the repair facility failed to repair the vehicle to conform to the written 5 warranty after a reasonable number of opportunities to do so; and (6) Defendant did not promptly 6 replace or buy back the vehicle. (CACI No. 3201.) Plaintiff is also seeking civil penalties against 7 Defendant for its willful violation of the Song-Beverly Act. (Civ. Code, § 1794, subd. (c).) 8 Matters related to GM’s pre-litigation analysis as to whether the Subject Vehicle should be 9 repurchased, all repairs and service performed on the Subject Vehicle, GM’s policies and 10 procedures for determining whether a vehicle qualifies for a repurchase or replacement under the 11 Song-Beverly Act, and GM’s training for evaluating a pre-litigation repurchase request under the 12 Song-Beverly Act are relevant to proving Plaintiff’s claims under the Song-Beverly Act. More 13 specifically, these matters are relevant to an analysis of the criteria that Defendant uses to 14 determine whether a vehicle is a “lemon” in compliance with the Song Beverly Consumer 15 Warranty Act and subject to a buyback or replacement. (See Oregel v. American Isuzu Motors Inc. 16 (1995) 90 Cal.App.4th 1094 [finding liability for a civil penalty where manufacturer’s corporate 17 policy discounted a repair attempt under the Song-Beverly Act if the problem could not be 18 verified]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136 [concluding that 19 in determining whether a defendant’s violation was willful, a jury may consider “whether the 20 manufacturer had a written policy on the requirement to repair or replace.”].) 21 The requested information is also relevant to determine whether Defendant, in dealing 22 with Plaintiff, acted in good faith and in a manner that comports with the lemon law or, instead, 23 sought to avoid repurchasing or replacing Plaintiff’s vehicle. This determination is important 24 because, although Plaintiff are entitled to a civil penalty if Defendant’s violation of the Song- 25 Beverly Act was willful, Defendant’s violation is not willful if its failure to replace or refund was 26 the result of a good faith and reasonable belief that the facts imposing the statutory obligation were 27 not present. Defendant’s policies and procedures are, therefore, relevant to show whether 28 Defendant’s conduct lacked good faith. (Kwan v. Mercedes-Benz of North America (1994) 23 -8- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 Cal.App.4th 174, 186 [concluding that a manufacturer’s lack of a written policy regarding the 2 repurchase and replacement of vehicles under the Song-Beverly Act is important to determining 3 whether Defendant lacked good faith.].) Because Plaintiff have demonstrated that good cause 4 exists and because the requested documents and categories of examination are reasonably 5 calculated to lead to the discovery of admissible evidence, (Oregel v. American Isuzu Motors, Inc., 6 supra, 90 Cal.App.4th at p. 1104; Kwan v. Mercedes-Benz of North America, supra, 23 Cal.App.4th 7 at p. 185), Defendant should be compelled to produce its PMQ for deposition. 8 D. The Court Should Award Sanctions Against Defendant for Its Willful Abuse of the Discovery Process Because Defendant Did Not Act with Substantial 9 Justification 10 The court shall impose a monetary sanction against any party, person, or attorney who 11 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that 12 the one subject to the sanction acted with substantial justification or that other circumstances make 13 the imposition of sanctions unjust. (Code Civ. Proc. §§ 2025.450, subd. (g)(1), 2025.480, 14 subdivision (j). Here, Defendant failed to produce a PMQ to testify at its properly noticed 15 deposition and failed to respond to Plaintiff’s meet and confer efforts by actually providing a date 16 for the deposition. When a party willfully refuses to attend a properly noticed deposition, an award 17 of sanctions is merited and not punitive. (Snyder v. Super. Ct. (1970) 9 Cal.App.3d 579, 587.) 18 Defendant’s conduct is without substantial justification and there are no circumstances 19 making the imposition of sanctions unjust. Therefore, Plaintiff request that monetary sanctions be 20 awarded against Defendant General Motors LLC and its counsel of record in the amount of 21 $1,860.00 (See Thomas Decl., ¶¶ 16-18.) 22 D. The Court Should Order Defendant to Produce Its Witness Within 7 Days 23 Plaintiff respectfully requests that the Court order Defendant to produce its witness on all 24 noticed MFEs within seven calendar days. If the Court grants Plaintiff’s motion, Defendant will 25 likely argue that it needs 60 days to comply, but there are several reasons for which this is not true. 26 First is that no depositions are scheduled after the hearing date for this motion. Whatever 27 Defendant’s witnesses are doing with their time, it certainly isn’t giving depositions, so they can 28 -9- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE 1 easily make themselves available. Second is that Defendant likely has no intention of complying 2 with any order the Court issues to produce a witness. In the cases described above, Defendant has 3 been given compliance deadlines ranging from 10 to 60 days, and not once has Defendant fully 4 complied. 5 Plaintiff can virtually guarantee that another motion will be necessary to secure 6 Defendant’s compliance with any order the Court issues to produce a witness. Plaintiff therefore 7 respectfully requests a seven day compliance deadline so that when Defendant fails to comply 8 there will be sufficient time for Plaintiff’s compliance motion to be heard prior to the currently 9 scheduled trial date. Plaintiff will be ready for trial by the currently scheduled date and does not 10 want it continued, as a continuance would simply delay justice for those harmed by Defendant’s 11 defective vehicle. 12 IV. CONCLUSION 13 For the foregoing reasons, Plaintiff request that this Court (i) order Defendant to produce 14 its PMQ to competently and fully testify as to each matter of examination contained in the 15 operative notice of deposition and to produce all requested documents within seven calendar days, 16 and (ii) award sanctions against Defendant and its counsel of record in the amount of $1,860.00. 17 18 Dated: March 19, 2024 KNIGHT LAW GROUP, LLP 19 20 21 22 23 ______________________________ Roger Kirnos (SBN 283163) 24 Phil A Thomas (SBN 248517) Attorneys for Plaintiff, 25 MA ARMENTA ZAVALA 26 27 28 -10- PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE PROOF OF SERVICE 1 (Code of Civil Procedure §1013a) 2 I am employed in the County of Los Angeles, State of California. I am over the age of 3 18 years and not a party to the within action. My business address is 10250 Constellation Blvd., Suite 2500, Los Angeles, CA 90067. 4 5 On Tuesday, March 19, 2024, I served electronic copies of the foregoing documents described as: 6 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION ATTENDANCE OF A PERSON MOST QUALIFIED 8 AND CUSTODIAN OF RECORDS OF DEFENDANT GENERAL MOTORS LLC, AND REQUEST FOR SANCTIONS 9 On the intended parties in this action as follows: 10 Cameron Major, Esq. 11 ERSKINE LAW GROUP, APC 12 1576 N. Batavia Street, Suite A Orange, CA 92867 13 eservice-ca@erskinelaw.com 14 Counsel for Defendant, GENERAL MOTORS LLC 15 16 17 18 19 20 XX BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused 21 the documents to be sent to the persons at the e-mail addresses listed above. I did not 22 receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 Executed this Tuesday, March 19, 2024 at Los Angeles, California. 26 27 _________________________ 28 Norman Little -1- PROOF OF SERVICE