Judge Ashfaq G. Chowdhury, Case Number: 24NNCV00538, Date: 2024-12-11 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV00538, Date: 2024-12-11 Tentative Ruling

Case Number: 24NNCV00538 Hearing Date: December 11, 2024 Dept: E

Hearing Date: 12/11/2024 – 8:30am
Case No. 24NNCV00538
Trial Date: 04/06/2026
Case Name: ARIZBET LOPEZ PANFILO, an individual, v. GENERAL MOTORS LLC; and DOES 1-50 inclusive

TENTATIVE RULING – MOTION TO COMPEL FURTHER

RELIEF REQUESTED¿
“Plaintiff ARIZBET LOPEZ PANFILO (“Plaintiff”) will, and hereby does, move for an order to strike Defendant’s meritless objections and compel further responses to Plaintiff’s Request for Production of Documents, Set One Nos. 7, 10, 16, 18-21, 37 and 39 (collectively, the “Requests”).

This Motion is made pursuant to California Code of Civil Procedure § 2031.310, on the grounds that Defendant has failed to provide adequate responses to Plaintiff’s Requests, which seek documents directly relevant to their claims under the Song-Beverly Consumer Warranty Act.

Plaintiff alleges that their 2018 Chevrolet Equinox vehicle, which was manufactured and distributed by Defendant, suffers from widespread defects—including the Engine Defect (“Defect”)—and that Defendant has been unable to repair their vehicle within a reasonable number of attempts. Plaintiff further alleges that Defendant knew that the vehicle suffered from the prevalent defects, but nevertheless refused to repurchase the vehicle when requested—a willful violation of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).

The Requests seek documents generally relating to: (1) GM’s internal investigation and analysis of the Defects plaguing Plaintiff’s vehicle and establishing that Defendant previously knew of such Defects but nevertheless refused to repurchase the vehicle (Request Nos. 10, 16, 18-21); and (2) Defendant’s Lemon Law Policies and Procedures (Request Nos. 7, 37, 39). Notwithstanding the plain relevance of these documents to Plaintiff’s claims, Defendant has lodged pure, boilerplate objections and utterly non-responsive statements. Such evasive responses fail to comply with the Code of Civil Procedure, necessitating further responses. Moreover, to date, Defendant has failed to provide any emails or search protocol regarding ESI, in contravention of its obligations under the Discovery Act.

In response to Defendant’s abuses of the discovery process, Plaintiff attempted to engage in meet-and-confer efforts with Defendant through multiple correspondences. However, Defendant refused to engage Plaintiff in good faith.

Notably, because Defendant objected to the Requests on the ground of undue burden but failed to identify in their objections the types or categories of sources of electronically stored information (“ESI”) that they assert are not reasonably accessible, as required by section 2031.210(d), Defendant has waived any and all objections as to electronically stored information as a matter of law. Plaintiff seeks an order striking Defendant’s meritless objections and compelling Defendant to produce adequate further responses and documents (including ESI, as to which Defendant has waived any and all objections pursuant to section 2031.210(d)) within 10 calendar days of the Court’s order.

The Motion is based upon this Notice, the following Memorandum of Points and Authorities, the Separate Statement, the Declaration of June Kim, the pleadings and papers on file herein, and upon any other matters that may be presented to the Court at the hearing.”

(Pl. Notice, p. 1-2.)

Preliminary Procedural
Moving Party: Plaintiff, Arizbet Lopez Panfilo
Responding Party: Defendant, General Motors LLC

16/21 Day Lapse (CCP § 12c and § 1005(b)): No
Proof of Service Timely Filed (CRC, Rule 3.1300(c)): No
Correct Address (CCP § 1013, § 1013a, § 1013b): Yes/No

Moving Papers: Notice/Motion; June Kim Declaration; Separate Statement; Proposed Order

Opposition Papers: Opposition; Separate Statement; Ryan Kay Declaration

Reply Papers: Reply; Plaintiff’s Evidentiary Objections to Ryan Kay Declaration; Supplemental June Kim Declaration

BACKGROUND
On 03/27/2024, Plaintiff, Arizbet Lopez Panfilo, filed the instant action against Defendant, General Motors LLC, alleging five causes of action for: (1) Violation of Civil Code 1793.2(d); (2) Violation of Civil Code 1793.2(b); (3) Violation of Civil Code 1793.2(a)(3); (4) Breach of Express Written Warranty Civil Code 1791.2(a), Section 1794; and (5) Breach of the Implied Warranty of Merchantability Civil Code 1791.1, Section 1794.

The instant action pertains to Plaintiff’s April 29, 2018 purchase of a 2018 Chevrolet Equinox.

Plaintiff alleges that during the warranty period the subject vehicle developed defects to the engine; electrical system; and any additional complaints made by Plaintiff, whether or not they are contained in the records or on any repair orders. (See Compl. ¶ 12.)

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2031.310(a) provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

(CCP § 2031.310(a).)

Under CCP § 2031.310(b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

“In the more specific context of a demand for production of a tangible thing, the party who asks the trial court to compel production must show “good cause” for the request—but unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

PROCEDURAL ANALYSIS

45-Day Requirement
Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (CCP § 2031.310(c).)

Here, it appears as if the parties agreed to extend the deadline to file this motion until November 15, 2024. (See Kim Decl. ¶ 26, Ex. 15.) Therefore, Plaintiff’s motion meets the 45-day requirement.

Meet and Confer
“The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).)

Here, Plaintiff’s counsel alleged that a meet and confer occurred. (See Kim Decl. ¶ 27, Ex. 16.)

TENTATIVE RULING

Service
The Court first notes that neither party pointed out the service issues that the Court noticed.

“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (CRC, Rule 3.1300(c).)

Plaintiff did not comply with CRC, Rule 3.1300(c) with respect to Plaintiff’s Notice/Motion. Plaintiff complied with CRC, Rule 3.1300(c) with respect to the June Kim Declaration, Separate Statement, and Proposed order; however, Plaintiff’s Notice/Motion did not contain a proof of service.

Further, under CCP § 1005(b):

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, 12 calendar days if the place of address is the Secretary of State’s address confidentiality program (Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code), and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.

The court, or a judge thereof, may prescribe a shorter time.

(CCP § 1005(b).)

With respect to the Court analyzing CCP § 1005(b), the Court first notes that it is unable to determine when Plaintiff’s Notice/Motion was served because Plaintiff did not include a proof of service with the Notice/Motion.

With respect to the remaining moving papers (Kim Declaration, Separate Statement, and Proposed Order), Plaintiff’s remaining moving papers are untimely.

Sixteen court days before the 12/11/2024 hearing would be Friday, November 15, 2024. While the remaining papers were filed 16 court days before the hearing, the remaining moving papers were not served in accordance with CCP § 1005(b).

“[I]f the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.” (CCP § 1005(b).)

Here, the remaining papers were served via electronic transmission; therefore, Plaintiff should have added two calendar days to Friday, November 15, 2024 to account for service. Plaintiff did not do this.

Therefore, the remaining moving papers were served two calendar days late. The Notice/Motion did not contain a proof of service to calculate if the Notice/Motion was timely served.

“The court, or a judge thereof, may prescribe a shorter time.” (CCP § 1005(b).)

Here, the Court, or judge, did not prescribe a shorter time for Plaintiff to serve the moving papers.

The Court will hear argument as to if it can hear this motion since Plaintiff did not comply with the notice requirements of CCP § 1005(b).

If This Motion Is Heard
With respect to RFP 7, Plaintiff’s motion is denied.

Under CCP § 2031.310(b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

Plaintiff’s RFP 7 requested, “The Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2017 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame].”

Defendant’s overbroad objection is sustained.

Plaintiff has the burden on this motion to establish good cause/relevancy.

Plaintiff’s subject vehicle is a 2018 Chevy Equinox. RFP 7 pertains to the year 2017 to the present. Plaintiff makes no explanation/argument on good cause as to the time frame in the request. Plaintiff makes no explanation/argument as to the scope of the request not being related to vehicles of the same make, model, and year of the subject vehicle (2018 Chevy Equinox). Plaintiff’s request can include non-Equinox vehicles, and Plaintiff makes no attempt to establish good cause/relevancy as to how broad this request is.

Plaintiff’s motion with respect to RFPs 37 and 39 suffer similar defects as to RFP 7.

Plaintiff’s motion to compel further responses to RFP, Set One, numbers 7, 37, and 39 is DENIED.

Plaintiff’s motion to compel further responses to RFP, Set One, numbers 10, 16, 18, 19, 20, and 21 is GRANTED. Defendant’s objections are stricken as to those responses, and Defendant is ordered to provide code-compliant, further responses with respect to RFPs 10, 16, 18, 19, 20, and 21.

Neither party requested sanctions.