Judge Curtis A. Kin, Case 22STCV11847 2023-01-19 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCV11847, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV11847 Hearing Date: January 19, 2023 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

Date: 1/19/23 (8:30 AM)

Case: Kenneth Mackenzie v. General Motors, LLC (22STCV11847)

TENTATIVE RULING:

Plaintiff Kenneth Mackenzie’s Motion to Compel Further Responses to Requests for Production of Documents, Set One is GRANTED IN PART.

Plaintiff Kenneth Mackenzie moves to compel further responses from defendant General Motors LLC to Requests for Production of Documents, Set One, Nos. 1, 3, 17, 19, 21, 23, 24, 30, 44, 51, 77, 79, 81, 83, 84, 85 and 96.

Defendant argues that plaintiff did not meet and confer in good faith because plaintiff’s meet and confer letters and emails contained no reasoning or analysis. (Opp. at 3:22-25.) On October 27, 2022, after defendant served plaintiff with responses, plaintiff served defendant with a 12-page meet and confer letter. (Neubauer Decl. ¶¶ 19, 29 & Exs. 8, 12.) Plaintiff set forth reasoning and analysis regarding why defendant’s objections were without merit and the good cause supporting production of the documents requested in the subject discovery. On November 22, 2022, defendant responded to plaintiff’s meet and confer letter, wherein defendant set forth its reasons why its objections to the subject discovery were proper. (Neubauer Decl. ¶ 34 & Ex. 17.) On November 29, 2022, plaintiff responded to defendant’s letter, stating why the requested documents are relevant. (Neubauer Decl. ¶ 35 & Ex. 18.) No subsequent responses resulted from plaintiff’s letter. (Neubauer Decl. ¶¶ 37-39.)

Based on defendant’s response to plaintiff’s meet and confer letter and refusal to provide further responses, the Court finds that plaintiff’s meet and confer effort was sufficient. Indeed, “A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution, especially when a legitimate discovery objective is Demonstrated.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) Defendant’s meet and confer letter and maintaining of its objections demonstrated that any further effort from plaintiff to persuade defendant that topics and requests concerning non-parties or vehicles other than the subject vehicle would have been futile.

With respect to No. 1, which asks for all documents relating to the subject vehicle, defendant responded that it would comply “in part.” (CCP § 2031.220.) This is inconsistent with defendant’s representation in the separate statement that it “produced all responsive documents within its possession, custody, and control….” (Def. Sep. Stmt. at 5:11-12.) To the extent that defendant withheld responsive documents, defendant did not identify with particularity such documents falling within No. 1, as required by CCP § 2031.240(b)(1). Because defendant maintains it produced all responsive documents, defendant sets forth no valid objection for withholding responsive documents pertaining to the subject vehicle. Defendant must serve further responses to No. 1 stating that production will be allowed “in whole” and produce all responsive documents.

With respect to No. 3, which asks for all reports analyzing the failure of parts that were repaired or replaced in the subject vehicle and sent to defendant, defendant responded that it would not produce documents because it was not aware of any parts that were sent to it by any authorized repair facilities. With respect to No. 17, which asks for all documents regarding any repairs in the subject vehicle, defendant responded that it would not produce documents because it was not aware of responsive documents. In plaintiff’s separate statement, plaintiff maintains that through No. 17, it is seeking all audio and video tape recordings. (Pl. Sep. Stmt. at 18:17-19.)

In its responses to Nos. 3 and 17, defendant effectively stated that it could not comply with the requests because responsive documents never existed. (See CCP § 2031.230.) While susch a response is generally permissible, defendant’s responses did not fully comply with CCP § 2031.230 because defendant did not affirm that a diligent search and reasonable inquiry was made to comply with the requests. Further responses to Nos. 3 and 17 are thus required.

With respect to Nos. 19, 21, 23, 24, 30, 44, 51, 77, 79, 81, 83, 84, 85 and 96, further responses are required. Based on plaintiff’s allegations regarding battery defects in the subject vehicle (FAC ¶¶ 11, 21-23), plaintiff is entitled to discovery which is probative of defendant’s knowledge of such defects in 2020 Chevrolet Bolt EV vehicles, including in vehicles other than the subject vehicle, and defendant’s handling of complaints. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 143-44, 154-55 [evidence pertaining to defects in same model transmission in vehicles other than subject vehicle is relevant to Song-Beverly claim]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973-74, 993 [evidence pertaining to similar problem in other vehicles other than subject vehicle are highly relevant].)

Any willfulness in violating the Song-Beverly Consumer Warranty Act would entitle plaintiff to a civil penalty not exceeding two times the amount of actual damages. (FAC ¶ 63 [allegation that defendant’s failure to comply with Song-Beverly was willful]; Civ. Code § 1794(c); CACI 3244.) A defendant is willful under Civil Code § 1794(c) when the defendant “knew of its legal obligations and intentionally declined to follow them.” (CACI 3244.) Defendant’s knowledge gained from other instances of the defects about which plaintiff complains may evidence defendant’s knowledge that the battery system was not repairable and therefore defendant had an obligation to replace or repurchase the vehicle under Civil Code § 1793.2(d)(2).

Defendant also asserts that the requested documents are protected trade secrets. Even if the document requests seek trade secrets, such concerns are sufficiently addressed by the protective order which was entered on December 6, 2022.

For the foregoing reasons, the motion is GRANTED. Within fifteen (15) days hereof, defendant General Motors LLC is ordered to serve further responses, without objection, to Requests for Production of Documents, Set One, Nos. 1, 3, 17, 19, 21, 23, 24, 30, 44, 51, 77, 79, 81, 83, 84, 85 and 96. The further responses must comply with CCP §§ 2031.220 or 2031.230.

Contrary to plaintiff’s second to last paragraph in the reply, defendant is not obligated to set forth the steps it took to locate responsive documents. CCP § 2031.220 or 2031.230 do not impose such an obligation.

For opposing this motion without substantial justification, monetary sanctions are imposed against defendant General Motors LLC in the amount of $3,480, based on 8 hours of time preparing the motion, instead of the 12 hours claimed, at an hourly rate of $435. Monetary sanctions are to be paid to counsel for plaintiff Kenneth Mackenzie within thirty (30) days hereof.