Judge: Craig Griffin, Case: McCarthy vs. General Motors LLC, Date: 2023-08-07 Tentative Ruling
Before the Court at present are six motions, as follows:
-Motion 1: Motion for Judgment on the Pleadings, filed by Defendant General Motors LLC (“GM”) on 2/23/23;
-Motion 2: Motion to Compel PMQ Deposition and Production of Documents, filed on 2/22/23 by Plaintiff Joseph McCarthy (“Plaintiff”);
-Motion 3: Motion to Compel Further Responses
and Responses Under Oath (as to Requests for Production), filed on 2/22/23 by Plaintiff;
-Motion 4: Motion to Compel Further Responses and to Deem Requests Admitted, filed on 2/22/23 by Plaintiff;
-Motion 5: Motion to Compel Further Responses and Responses Under Oath (as to Form Interrogatories), filed on 2/22/23 by Plaintiff;
-Motion 6: Motion to Compel Further Responses and Responses Under Oath (as to Special Interrogatories), filed on 2/22/23 by Plaintiff;
Motion 1 is GRANTED, with 30 days leave to amend. In Motion 1, GM seeks judgment on the pleadings as to the Ninth and Tenth Causes of Action (each a “COA”) in the Complaint. For COA 9, as the claim is based on a statute, the three year limitations period under C.C.P. § 338(a) applies. COA 9 asserts that the advertising at issue occurred “[o]n or about July 18, 2017.” (Complaint ¶ 53.) On its face, the claim thus appears to be time-barred. In addition, COA 9 fails to state facts sufficient to support the claim as pled, as it essentially just repeats the elements of the statute without factual support. However, as Plaintiff appears to be arguing that the discovery rule applies, and may also be able to plead facts to otherwise support this claim, Plaintiff is granted leave to amend.
For COA 10, Plaintiff claims a right to restitution, which GM “converted” by refusing to pay that sum to Plaintiff. (Complaint ¶¶ 57, 58.) But the Complaint also asserts that through the Complaint, Plaintiff was asserting a claim for restitution. (Complaint ¶¶ 7, 8.) It thus appears from the Complaint that the act of alleged conversion upon which the claim is based had not yet even occurred when the Complaint was filed. A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) The facts as alleged for COA 10 do not suffice to state that claim. However, as Plaintiff may be able to plead facts to support this claim, Plaintiff is granted leave to amend.
Motion 2 is GRANTED IN PART. In Motion 2, Plaintiff moves to compel GM to produce designated persons most qualified (“PMQs”) to testify on 22 subjects, and to produce the documents responsive to 40 categories of requested documents.
For the PMQ categories, GM states that it agrees to and is prepared to produce witnesses for Category Nos. 1-8, 11-18, and 20-21. The Motion as to those categories is therefore GRANTED: counsel are to identify and set dates for those depositions to be conducted within the next 30 days. Of the remaining 4 categories, the Motion is GRANTED for Categories 9 and 22, but DENIED on Categories 10 and 19.
The 40 categories of document requests identified in the Notice of Deposition appear to be identical to those identified in the Request for Production of Documents (“RFPs”) addressed in Motion 3 below. To the extent that those RFPs remain in dispute, they are thus addressed below.
Plaintiff’s Evidentiary Objections, filed as ROA 167, are OVERRULED.
Motion 3 is GRANTED IN PART. In Motion 3, Plaintiff moves to compel further responses and documents to some of the requests in Plaintiff’s RFPs, Set One.
The Motion is directed to 16 of Plaintiff’s RFPs. Plaintiff has shown that some but not all of the materials at issue should be produced. On balance, for the specific vehicle at issue, GM must produce documents related to the warranty work requested, including any repair instruction, bulletin or diagnostic/repair procedure identified therein, and communications related thereto. It must also produce any warranty policy or procedure manuals or claim handling manuals for warranty or Lemon Law claims for the period between Plaintiff’s purchase and the commencement of this action, a list of any customer complaints for vehicles purchased in California for the same vehicle year, make and model, for complaints substantially similar to those alleged here [but with consumer-specific information redacted], and any TSBs or recall notices for vehicles sold in California for the same vehicle year, make and model. But it should not be compelled to produce, in addition to what it has already agreed to produce, all other materials requested here.
The Motion is therefore DENIED for RFPs 8-10, 13 and 40, as based on what has been shown here, GM’s proprietary interests therein outweigh Plaintiff’s claimed need for such materials.
The Motion is GRANTED IN PART, as follows:
(a) for RFPs 15, 17 and 19 [as to invoices for and records of repairs or attempts to repair Plaintiff’s vehicle];
(b) for RFPs 21 and 22 [as to non-privileged communications concerning Plaintiff’s vehicle];
(c) for RFP 27 [as to information provided to dealerships regarding repairs for any of the alleged “defects” in Plaintiff’s vehicle];
(d) for RFP 29 [as to TSBs or recall notices for vehicles sold in California for the same year, make, and model];
(e) for RFPs 30-31 [as to written warranty policy or procedure manuals or claim handling manuals for Lemon Law claims or warranty claims in California, for the period between Plaintiff’s purchase and the commencement of this action]; and
(f) for RFPs 32-33 [as to customer complaints for vehicles purchased in California for the same vehicle year, make and model, for complaints substantially similar to those alleged here, but with consumer-specific information redacted].
GM is to provide supplemental responses which comport with the foregoing, and to the extent not already produced, a corresponding supplemental production, within 20 days after service of notice of this ruling.
Finally, although Plaintiff has argued that the language used in the verification provided by GM made it defective, Plaintiff has not shown that this is so under C.C.P. § 2015.5, as the declarant states therein that she is authorized to verify the responses for GM and does so based on her review thereof.
Plaintiff’s Evidentiary Objections, filed as ROA 177, are OVERRULED.
Motion 4 is DENIED. Plaintiff in this Motion asserts that the response to Request for Admission (“RFA”), for RFA No. 14, was deficient. But RFA 14 as presented assumes that a request for repurchase was made. GM in response, after stating its objections, denied that this occurred, and then asserted that it had no obligation to do so. That sufficiently complies with C.C.P. §§ 2033.220 and 2033.230 in this context.
Plaintiff’s Evidentiary Objections, filed as ROA 175, are OVERRULED.
Motion 5 is GRANTED IN PART. Plaintiff in this Motion asserts that the responses to Form Interrogatory (“FROG”) Nos. 1.1, 2.8, 15.1, and 17.1 are deficient.
For FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14, each response is incomplete, and lacking in adequate specificity. The Motion is therefore GRANTED for FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14. The Motion is DENIED as to FROG 2.8, as Plaintiff has not shown why the response is insufficient given the context here.
Motion 6 is GRANTED IN PART. Plaintiff in this Motion asserts that the responses to Special Interrogatory (“SROG”) Nos. 1-6, 21-24, 30-31, 33, and 36-42 are deficient.
The Motion is GRANTED as to SROGs 1-6, 23, 24, 30, 31, 33 and 36. SROGs 1-6 seek information about GM’s asserted defenses. Although GM can point to specific documents it has produced for SROGs 3 and 6, the response must be complete, and merely pointing to such documents does not suffice for Nos. 1, 2, 4 and 5.
For SROGs 23, 24, 30 and 31, GM’s responses are deficient. For No. 23, if it is not making any such claim, it must so state. For Nos. 24, 30 and 31, GM must meaningfully respond.
For SROGs 33 and 36, GM responded by pointing to specific documents, but failed to actually answer the questions posed, and did not show in the Opposition that the documents identified provide the requested information.
The Motion as to SROGs 21, 22, and 37-42 is DENIED. For SROGs 21 and 22, the requests appear overbroad and lack adequate specificity, while Nos. 37-42 duplicate 1-6.
Plaintiff’s Evidentiary Objections, filed as ROA 181, are SUSTAINED on Obj. No. 5 [relevance] and Obj. No. 6 [as the attachment does not comply with CRC 3.115 and predates this action], but otherwise OVERRULED.
For Motions 3, 5, and 6, to the extent that supplementation is required as discussed above, GM is to provide verified supplemental responses and produce any corresponding responsive documents that have not already been produced, within 20 days after service of notice of this ruling.
Counsel for GM is to give notice on Motion 1; Counsel for Plaintiff is to give notice on Motions 2-6.