Judge: Donald F. Gaffney, Case: "Reitz v. General Motors, LLC", Date: 2023-07-12 Tentative Ruling

TENTATIVE RULING:

Plaintiff seeks an order compelling further responses to requests for production, set one, nos. 8-10, 13, 15, 17, 19, 21-22, 27, 29-33, and 40.  For the reasons set forth below, the hearing on the motion is continued for the parties to further meet and confer.

A.           General Standard for Discoverable/Relevant Material in Lemon Law Cases

A party is entitled to seek all discovery that is relevant to the subject matter of the action. Cal. Civ. Proc. Code § 2017.010. The test for determining if something is discoverable is whether the requested matter “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aiding in settlement of the case.  (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546).  “A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.”  (Williams v. Superior Ct. (2017)  3 Cal. 5th 531, 540).  Accordingly, Courts liberally apply the "relevant" and "reasonably calculated to lead to discovery of admissible evidence" standards and generally rule in favor of permitting discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal. 3d 785, 790).  

When a plaintiff seeks a civil penalty for violating the Song-Beverly Act, the plaintiff must prove that a manufacturer’s violation was willful.  In considering whether or not a manufacturer willfully violates the act, a jury may consider, among other things, whether : (1) the manufacturer knew the vehicle had not been repaired within a reasonable period or after a reasonable number of attempts, and (2) whether the manufacturer had a written policy on the requirement to [repurchase] or replace.  (Jensen v. BMW of North America, Inc. (1995) 3 Cal. App. 4^th 112, 136).  For example, the court of appeal affirmed a trial court judgment imposing a civil penalty on a manufacturer based on the jury’s findings that the manufacturer’s violation was willful.   (Oregel v. Am. Isuzu Motors, Inc. (2001) 90 Cal. App. 4th 1094, 1105).  The court held, inter alia, that the jury’s verdict was supported by the manufacturer’s general internal policies and practices that hid defects from consumers:

“Additionally, the jury could conclude that Isuzu's policy, which requires a part be replaced or adjusted before Isuzu deems it a repair attempt but excludes from repair attempts any visit during which a mechanic searches for but is unable to locate the source of the problem (citing fn. 11 in Oregel, at 1103), is unreasonable and not a good faith effort to honor its statutory obligations to repurchase defective cars. (Citation.))  Finally, there was evidence that Isuzu adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act  [i.e., requiring written complaints when the consumer manual provides a toll-free telephone number].  This latter evidence would permit a jury to infer that Isuzu impedes and resists efforts by a consumer to force Isuzu to repurchase a defective car, regardless of the presence of an unrepairable defect, and that Isuzu's decision to reject Oregel's demand was made pursuant to Isuzu's policies rather than to its good faith and reasonable belief the car did not have an unrepairable defect covered by the warranty or that a reasonable number of attempts to effect a repair had not yet occurred.”  Id. 

A manufacturer’s knowledge of a defect concerning other cars not subject to litigation, therefore, may be relevant to a plaintiff’s proving the existence of a manufacturer’s underlying policies relevant to the issue of willfulness.

B.           The Parties’ Meet and Confer

A motion to compel further responses must be accompanied by a meet and confer declaration showing “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Civ. Proc. Code § 2016.040 [general meet and confer requirements]].)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal. App. 4h 1277, 1294.)

The court finds that the parties have failed to meaningfully meet and confer.  Plaintiff sent one meet and confer email to Defendant.  Defendant contends that it responded by stating it would agree to provide Plaintiff with additional responses, offered to produce documents subject to a protective order, and stood on some of its objections.  [Shugart Decl., ¶ 5].  Rather than attempt to, at the very least, narrow the issues with Defendant, Plaintiff filed this motion.  There is no evidence that Plaintiff attempted to meet and confer further.

The court, therefore, orders the parties to further meet and confer with the following guidance from the court:

·         RFP Nos. 8-10, 27:  The court tentatively finds that these requests are overbroad.  Plaintiff uses the phrase “All DOCUMENTS which refer to, relate to, or evidence…”  In doing so, these requests are not narrowly tailored and would encompass attorney-client communications, trade secrets, attorney work-product, etc.  Rather, Plaintiff’s request should be narrowed to ask for the warranty service contract between Defendant and the Dealership that performed the repairs on Plaintiff’s vehicle. 

·         RFP Nos. 13, 15, 17, 19, 21, 22:  The court tentatively finds Plaintiff’s use of the following phrases/terms to be overbroad: “All DOCUMENTS,” “refer to,” “relate to,” reflect,” “concerning,” “evidence,” etc.  Again, such phrases would necessarily include attorney-client communications, trade secrets, attorney work-product, etc.   Plaintiff’s requests should be narrowed to identify the documents Plaintiff seeks.  For example, Plaintiff’s requests could be amended to ask for repair orders for Plaintiff’s vehicle, communications relating to repairs/defects in Plaintiff’s vehicle except attorney-client privilege/attorney work-product, etc.

·         Remaining RFPs:  The court tentatively finds that RFP No. 29 is discoverable.  RFP Nos. 30 and 31 are duplicative and can be amended to simply ask Defendant for its policies and procedures to comply with the Song-Beverly Consumer Warranty Act except attorney work-product. RFP Nos. 32 & 33 may be discoverable if they were amended to only seek all complaints made that raise the same PROBLEMS reported by Plaintiff with vehicles of the same make and model as Plaintiff’s.  RFP No. 40 is overbroad. 

·         Defendant’s Verifications:  The court tentatively finds that Defendant’s verifications are sufficient.

·         Defendant’s Further Responses:  After the parties meet and confer for Plaintiff to serve amended discovery requests, Defendant is ordered to serve further responses to the amended discovery that complies with the exact language that the code requires. 

The parties are ordered to meet and confer within the next 10 days.  Plaintiff is ordered to serve amended discovery questions that narrow/withdraw requests based on the court’s guidance above within 20 days.  Defendant is ordered to serve further responses to Plaintiff’s amended discovery within twenty days after Plaintiff’s amended discovery questions have been served.

The hearing on the motion is continued to September 27, 2023, at 9:00 a.m. in this Department.  The parties are ordered to file a short report regarding the status of how discovery has narrowed not to exceed five pages and a  revised separate statement of only the remaining discovery at issue that also includes the amended discovery questions and any supplemental responses.  To the extent that all discovery disputes have been resolved by the parties, the parties are ordered to file a notice of taking the motion off calendar five court days before the continued hearing date.

Moving party to give notice.