Judge: Cynthia A Freeland, Case: 37-2023-00008232-CU-BC-NC, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 28, 2023

12/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2023-00008232-CU-BC-NC PAGE VS. GENERAL MOTORS, LLC CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/11/2023

Plaintiff Jessica Page ('Plaintiff')'s motion to compel Defendant General Motors, LLC ('Defendant') to provide further responses to Special Interrogatories (Set One) Nos. 14, 40-45, and 51-55 is granted.

Initially, the court declines to deny the motion for Plaintiff's alleged failure to meet and confer before filing the motion. Before bringing a motion to compel further responses to written discovery, a party must make a reasonable and good faith effort to resolve each issue presented by the motion. See Cal. Code Civ. P. §§ 2016.040, 2030.300(b)(1). Whether this was accomplished depends upon the case's circumstances. See Obregon v. Sup. Ct. (1998) 67 Cal. App. 4th 424, 431. '[T]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions . . . A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.' Townsend v. Sup.

Ct. (1998) 61 Cal. App. 4th 1431, 1435, 1439; Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294.

In this case, the evidence shows that Plaintiff's counsel sent a detailed letter on July 13, 2023 outlining the perceived deficiencies with all of Defendant's discovery responses, including the lack of executed verifications. See Lara Decl., ¶ 7; Ex. 4. Contrary to Defendant's characterization, the court views Plaintiff's counsel's correspondence to be a good faith attempt to: (1) address the perceived deficiencies with Defendant's initial responses, and (2) initiate a dialogue regarding those deficiencies. Indeed, the first paragraph of Plaintiff's counsel's July 13, 2023 letter concludes with 'I am hopeful that the parties will be able to discuss these matters and resolve any disputes informally without having to resort to unnecessary motion practice.' Ibid., Ex. 4. The same letter concludes 'If you wish to discuss these matters, then I am happy to do so if you schedule a date/time for this to occur within the next seven (7) days.' Ibid. Apparently with no response from Defendant, other than the provision of signed verifications, Plaintiff, on July 31, 2023, served Defendant with a Notice of Informal Discovery Conference ('IDC'), with the IDC to take place on August 2, 2023. Ibid., ¶ 8, Ex. 5. Defendant did not attend the IDC. Ibid., ¶ 9. On August 16, 2023, Plaintiff's counsel attempted to meet and confer telephonically with Defendant's counsel; however, the parties did not connect, and Plaintiffs' counsel left a voicemail that ultimately was not returned. Ibid., ¶ 10. Plaintiff filed and served the pending motion on September 11, 2023. See ROA No. 24. In sum, the court finds that Plaintiff fulfilled her meet and confer obligations before filing the present motion. Accordingly, the court will turn to the motion's merits.

Any party may propound written interrogatories relating to another party's facts, contentions, witnesses, or documents. See Cal. Code Civ. P. §§ 2030.010(a)-(b). The responding party must answer each interrogatory in as complete and straightforward a manner as the information reasonably available to Calendar No.: Event ID:  TENTATIVE RULINGS

3019056 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC him or her permits. See Cal. Code Civ. P. § 2030.220(a). If he or she cannot respond completely, he or she must do so to the extent possible. See Cal. Code Civ. P. § 2030.220(b). If he or she lacks personal knowledge sufficient to fully respond, he or she must so state, but must make a reasonable and good faith effort to obtain the information. See Cal. Code Civ. P. § 2030.220(c). If only part of an interrogatory is objectionable, the remainder must be answered. See Cal. Code Civ. P. § 2030.240(a). If the answer would necessitate making a compilation or summary of information contained in records, the responding party may respond by permitting the party propounding the interrogatories to inspect and copy the pertinent documents. However, this option is available to a responding party only if the responding party demonstrates that: (1) a compilation, abstract, audit or summary of the responding party's records is necessary in order to respond to the interrogatory; (2) no such compilation or summary presently exists; and (3) the burden or expense of preparing or making it would be substantially the same for the propounding party as it would be for the responding party. See Cal. Code Civ. P. § 2030.230. Moreover, to exercise this option, the responding party also must specifically refer to California Code of Civil Procedure ('CCP') § 2030.230 and must specify the documents, with sufficient particularity, from which the answer may be derived or ascertained. Ibid.; see also Fuss v. Sup. Ct. (Rosenthal) (1969) 273 Cal. App. 2d 807, 815-816.

CCP § 2030.300 provides that '[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[;] [or] (3) An objection to an interrogatory is without merit or too general.' Cal. Code Civ. P. §§ 2030.300(a)(1)-(3). The propounding party is entitled to demand answers to his or her interrogatories as a matter of right and without a prior showing. See Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541 (quoting West Pico Furniture Co. of Los Angeles v. Sup. Ct. In and For Los Angeles County (1961) 56 Cal. 2d 407, 422). The responding party bears the burden of justifying any objection and failure to respond. See Williams, 3 Cal. 5th at 541 (citing Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221).

The court will address each subject interrogatory in turn.

Special Interrogatory No. 14 By way of this interrogatory, Plaintiff requests that Defendant identify all persons who performed warranty repairs on the Subject Vehicle. Rather than identify any specific individuals, Defendant objected to the request on the ground that the term 'warranty repair' is vague, ambiguous, and overbroad. Defendant thereafter invoked CCP § 2030.230 and referred Plaintiff to various documents that have been produced. The court concurs with Plaintiff that the response is deficient.

To the extent Defendant contends that the subject interrogatory is overbroad, vague, and/or ambiguous, the contention is unavailing. Objections based upon ambiguity, confusion, or overbreadth are typically unavailing unless the discovery request is so unintelligible that the responding party cannot in good faith respond. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Sup. Ct.

(1961) 56 Cal. 2d 423, 428. Defendant makes no such showing, and the court does not find the objected to term to be vague or ambiguous. Indeed, Defendant implicitly concedes the term is not so vague as to prevent a response given that Defendant goes on to rely on CCP § 2030.230. Defendant's reliance on CCP § 2030.230, however, is misplaced.

Notably, Defendant does not show that a compilation, abstract, audit or summary of its records is necessary to respond to the interrogatory and that such a compilation or summary does not presently exist. Defendant also does not demonstrate that the burden or expense of preparing or making said compilation or summary would be substantially the same for Plaintiff as it would be for Defendant.

Consequently, Defendant's reference to 'Service Request Activity Report(s) and the Global Warranty History Report . . . and any repair orders that GM may have obtained from GM-authorized dealerships who may have serviced, maintained, or repaired the SUBJECT VEHICLE' simply is not a Calendar No.: Event ID:  TENTATIVE RULINGS

3019056 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC Code-compliant response. To this point, neither is Defendant's assertion in its Separate Statement in Opposition that 'GM has produced a plethora of Bates-labeled documents that are directly responsive to Plaintiff's interrogatories.' See Defendant's Separate Statement in Opposition, p. 5, ll. 13-14.

To the extent that Defendant, in its Separate Statement in Opposition, asserts that 'the requests also demand production of confidential, proprietary, and commercially sensitive information that may contain trade secrets,' (see Separate Statement in Opposition, p. 4, ll.17-18.), the objection is not one that was submitted specifically in response to Special Interrogatory No. 14 but rather was a blanket, boilerplate objection purportedly incorporated into each response. The problem with this objection is that it has no bearing on and/or is wholly unrelated to the call of the interrogatory. In particular, Defendant fails to explain, and the court fails to understand, how the request 'demand[s] the production of confidential, proprietary, and commercially sensitive information that may contain trade secrets.' Indeed, as a general proposition, 'discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter . . . .' Cal. Code Civ. P. §§ 2017.010; 2030.010(a); Gonzalez v. Sup. Ct. (1995) 33 Cal. App. 4th 1539; 1546-1547. Defendant therefore must respond to Special Interrogatory No. 14 in as complete and straightforward a manner as the information reasonably available to it permits.

Accordingly, the court grants the motion as to Special Interrogatory No. 14.

Special Interrogatories Nos. 40-45 Generally, these interrogatories seek: (1) the identity of individuals who are responsible for supervising Defendant's proper determination regarding whether a vehicle should be repurchased or replaced under the Song-Beverly Warranty Act; (2) a description of how those individuals perform their duties; (3) how those duties were performed specifically in connection with the Subject Vehicle; (4) all persons who were involved in assessing whether there should be a repurchase or replacement of the Subject Vehicle; (5) all documents consulted, reviewed and/or obtained in connection with the investigation into whether the Subject Vehicle should be repurchased or replaced under the Song-Beverly Warranty Act; and (6) all individuals responsible for Defendant's decision not to repurchase or replace the Subject Vehicle. In response, Defendant objected on various grounds, including vagueness, ambiguity, relevance, and not reasonably calculated to lead to the discovery of admissible evidence. Defendant also objected to the requests on the grounds that they sought confidential, proprietary, and trade secret information as well as information protected by the attorney-client privilege and/or work product doctrine. None of these objections, however, are justified under the circumstances.

First, to the extent that Defendant asserted objections based on vagueness and ambiguity, those objections have been addressed in connection with the court's analysis as to Special Interrogatory No.

14.

Second, to the extent Defendant has objected on the grounds that the subject interrogatories are not reasonably calculated to lead to the discovery of admissible evidence, i.e., they are not relevant, the objection is not well taken. An objection that the request is not relevant to the subject matter of the lawsuit may be a valid objection. See Cal. Code Civ. P. § 2017.010. While the scope of discovery is broad, it is not limitless. Discovery that is not reasonably calculated to lead to the discovery of admissible evidence or is not helpful in preparing for trial is not authorized. See Digital Music News LLC v. Sup. Ct.

(2014) 226 Cal. App. 4th 216, 224. To determine whether discovery requested is reasonably calculated to lead to the discovery of admissible evidence, the court must look to the allegations in the operating pleading. See John B. v. Sup. Ct. (2006) 38 Cal. 4th 1177, 1206.

In this case, the court respectfully disagrees that the interrogatories at issue are irrelevant to the subject matter of this lawsuit. More specifically, by virtue of ¶ 33 of the Complaint as well as Plaintiff's Prayer for Relief, Plaintiff seeks penalties under California Civil Code ('CC') § 1794(c). CC § 1794(c) authorizes the imposition of a civil penalty up to two times the amount of actual damages if the buyer proves the manufacturer's failure to comply with the prescriptions of the Song-Beverly Act was willful.

Manufacturers' policies, guidelines, and procedures are but one factor that a trier of fact may consider Calendar No.: Event ID:  TENTATIVE RULINGS

3019056 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC when determining whether a manufacturer's course of conduct was willful. See, e.g., Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 136; CACI Jury Instruction No. 3244. In addition, Defendant, as part of its Answer, has asserted several affirmative defenses to which Plaintiff is entitled to the factual basis, including, without limitation, Defendant's claims that it believed in good faith that its actions were legal and that replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known. See Defendant's Nineteenth and Twenty-Fourth Affirmative Defenses, ROA No. 9, pp. 6-7.

Third, to the extent Defendant has asserted that the interrogatories seek privileged, confidential, proprietary, and/or trade secret information, Defendant bore the initial burden of proving that the privilege applies. See Amgen Inc. v. Health Care Services (2020) 47 Cal. App. 5th 716, 733. Defendant failed to meet its burden as further discussed above in connection with Special Interrogatory No. 14.

Fourth, in connection with its responses to Special Interrogatory Nos. 42-44, Defendant responded that 'it is informed and believes that verifiable concerns have been resolved and that the SUBJECT VEHICLE has been adequately repaired within a reasonable number of repair attempts.' See Defendant's Separate Statement in Opposition, p. 9, ll. 26-28. This is not responsive to the call of the interrogatories. Moreover, to the extent that Defendant refers to CCP § 2030.230 in response to these three interrogatories, Defendant's response suffers from the same deficiencies identified in the court's analysis of the sufficiency of Defendant's response to Special Interrogatory No. 14.

Finally, to the extent Defendant contends that the subject interrogatories violate the attorney-client privilege and/or work product doctrine, it was required to state with specificity the particular privilege it is invoking and, at a minimum, identify and describe the documents it believes the privilege protects. See Hernandez v. Sup. Ct. (2003) 112 Cal. App. 4th 285, 293; Cal. Code Civ. P. § 2030.240(b). Defendant failed to do so. As a result, Defendant must supplement its responses to Special Interrogatory Nos.

40-45 to respond in as complete and straightforward a manner as the information reasonably available to it permits.

Accordingly, the court grants the motion as to Special Interrogatories Nos. 40-45.

Special Interrogatories Nos. 51 and 54 These interrogatories request that Defendant list all Technical Service Bulletins ('TSB') applicable to the SUBJECT VEHICLE, including previously issued technical service bulletins that have been superseded and explain the process by which a TSB is recalled or superseded. In addition to asserting objections that previously have been discussed herein, Defendant responds to Special Interrogatory No. 51 that, pursuant to CCP § 2030.230, it has produced in response to Plaintiff's Request for Production of Documents, Set One, a list of TSBs for vehicles of the same year, make and model as the SUBJECT VEHICLE. With regard to Special Interrogatory No. 54, Defendant simply asserts objections that have been addressed and dispensed with elsewhere in this ruling.

As for Defendant's response to Special Interrogatory No. 51, Plaintiff's motion and corresponding separate statement do not address Defendant's representation that such a list already has been produced. To the extent that such a list exists, Defendant should supplement its response to identify the specific Bates Stamped Number of the responsive document.

Accordingly, the court grants the motion as to Special Interrogatories Nos. 51 and 54.

Special Interrogatories Nos. 52-53 These interrogatories seek an explanation for the issuance of Recall N212354520 and an explanation of the process by which it was issued. Rather than provide the requested explanation, which actually was a topic of this court's November 17, 2023 ruling on Plaintiff's motion to compel the deposition of Defendant's person most knowledgeable and to produce documents (see ROA No. 45), Defendant Calendar No.: Event ID:  TENTATIVE RULINGS

3019056 CASE NUMBER: CASE TITLE:  PAGE VS. GENERAL MOTORS, LLC  37-2023-00008232-CU-BC-NC asserts objections that have been addressed above and then responds that it will produce a copy of bulletin N192268490 and bulletin 16077. These responses are evasive and nonresponsive. As such, Defendant must provide supplemental Code-compliant responses to Special Interrogatories Nos. 52 and 53.

Accordingly, the court grants the motion as to Special Interrogatories Nos. 52-53.

Special Interrogatory No. 55 With regard to this interrogatory, Plaintiff is correct – all it seeks is a number of days. Defendant is required to provide answers that are 'as complete and straightforward as the information reasonably available to the responding party permits.' This includes referring to all sources of information that are under Defendant's control. See Cal. Code Civ. P. §§ 2030.220(a), (b). Defendant's objections and specific response are insufficient for all the reasons set forth herein this ruling.

Accordingly, the court grants the motion as to Special Interrogatory No. 55.

The court must impose sanctions 'against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' Cal. Code Civ. P. § 2030.300(d). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal, App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, Plaintiff does not seek sanctions and, as a result, the court concludes that, under the circumstances, the imposition of sanctions would be unjust.

In light of the foregoing, the court grants the motion and directs Defendant to serve further verified Code-compliant responses to Special Interrogatories Nos. 14, 40-45, and 51-55 within fourteen (14) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 29, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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