Judge: Donald F. Gaffney, Case: Sassman v. Connell Chevrolet, Date: 2022-12-14 Tentative Ruling
TENTATIVE RULING:
Plaintiff seeks an order compelling Defendant General Motors, LLC (“GM”) to produce their PMK for a deposition and to produce documents pursuant to deposition notice. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
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 against a manufacturer for violating the Song-Beverly Act, the plaintiff must prove that the 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. 4th 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 may , therefore, be relevant to a plaintiff proving the existence of a manufacturer’s underlying policies relevant to the issue of willfulness.
B. Categories of Topics
1. Discoverable Categories
The court finds that the following categories are discoverable and grants the motion as to these categories:
· 1. All of YOUR records regarding the 2021 Chevrolet Silverado 1500 VIN: 3GCUYEED5MG106366. ("SUBJECT VEHICLE")
· 2. All warranty claims made to YOU with regard to the SUBJECT VEHICLE.
· 3. All repairs and service performed on the SUBJECT VEHICLE.
· 4. Warranty coverage for the repairs to the SUBJECT VEHICLE.
· 6. All documents produced by YOU in this litigation thus far.
· 7. YOUR response to any pre-litigation repurchase request for the SUBJECT VEHICLE, including the terms of the response.
· 12. YOUR policies, procedures or other guidelines for repurchasing vehicles under the Song-Beverly Consumer Warranty Act in response to a pre-litigation request.
· 13. YOUR policies, procedures, or other guidelines for documenting the basis for a pre-litigation repurchase approval decision.
· 14. YOUR policies, procedures, or other guidelines for calculating repurchase offer amounts for vehicles under the Song-Beverly Act, including but not limited to any allowable deductions.
· 15. YOUR policies and procedures regarding requiring a consumer in California to sign a release agreement in order for YOU to repurchase a vehicle under the Song-Beverly Act.
· 16. YOUR policies and procedures requiring a motor vehicle to be in a certain condition as a requirement for repurchasing or replacing a motor vehicle under the Song-Beverly Act.
· 17. YOUR policies and procedures from 2015 to 2020 for reimbursing negative equity when repurchasing a vehicle under the Song-Beverly Act pursuant to an arbitration ruling by YOUR third party dispute resolution process
· 20. YOUR policies and procedures regarding what constitutes a “non-conformity” under the Song-Beverly Act from 2020 to present.
· 21. YOUR policies and procedures regarding what constitutes a “reasonable number of repair attempts” under the Song-Beverly Act from 2020 to present.
· 22. YOUR policies and procedures regarding determining whether a nonconformity substantially impairs a vehicle’s use, value, or safety.
· 23. YOUR policies and procedures for YOUR authorized dealerships’ submission of warranty reimbursement claims, including timing.
· 24. YOUR policies and procedures for proactively (without a customer request) offering a vehicle repurchase pursuant to the Song-Beverly Act.
GM objects to these categories on the grounds that they are overbroad, unduly burdensome, vague, ambiguous oppressive and not reasonably calculated to lead to the discovery of admissible evidence. GM also objects based on the attorney-client privilege and the attorney work-product doctrine. Further, GM objects to these categories on the grounds that they seek confidential, proprietary and trade secret information. The court overrules these objections as follows:
· Burdensome objections: If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party. (West Pico Furniture Co. v. Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 417-418). Defendant offers no evidence of the burden for Defendant to produce a witness on this topic or made any showing of the “quantum of work required,” let alone substantively address this objection in its opposition.
· Attorney-client privilege/work-product: Where discovery is withheld on the basis of a privilege claim or a claim that the information sought is protected work product, the party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. (Fiduciary Trust Internat. of California v. Klein (2017) 9 Cal.App.5th 1184, 1195). Further, “[i]f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Cal. Civ. Proc. Code § 2031.240(c)(1).) While Defendant asserts privilege and attorney-work product objections to every topic category, Defendant fails to establish the “preliminary facts necessary to support” the validity of that objection—how does the topic category, on its face, ask Defendant to disclose attorney-client privilege and/or attorney work-product. Because Defendant has not met its burden (or provide a list of ‘privileged’ issues that Defendant will not address in a deposition), the court overrules these objections without prejudice to Defendant raising attorney-client objections at the deposition to specific questions.
· Trade Secret: The party claiming a trade secret privilege has the burden of establishing its existence. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) “Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.” (Id.) While Defendant does offer a declaration establishing the existence of a trade secret, Defendant does not explain why a simple protective order that prohibits disclosure of any testimony in the deposition will not protect Defendant’s interest. A protective order prohibiting such disclosure will not allow Defendant’s competitors to use such information against Defendant’s interests. The court, therefore, sustains in part and overrules in part this objection to each topic category by ordering the parties to meet/confer on a protective order prohibiting the disclosure of the contents of the deposition of Defendant’s PMK outside the course of this litigation (including provisions regarding filing further motions/documents with the court that contain portions of that deposition transcript conditionally under seal).
· Overbroad/Relevance Objections: These topic categories relate to the internal policies, procedures, guidelines, complaints, responses to complaints, and training materials that Defendant adopted to comply with the Song-Beverly Act. As the Oregel, supra, court held, information regarding a manufacturer’s internal policies on how it handles Song-Beverly complaints is relevant to the issue of willfulness. As the topic categories ask for Defendant’s general internal policies regarding Song-Beverly Act complaints, they are relevant and discoverable.
2. Objections Sustained
The court sustains at least one of Defendant’s objections to the following topic categories:
· 5. All communications, with any person except an attorney, regarding the SUBJECT VEHICLE.
· 8. All documents that YOU reviewed, if any, in determining YOUR response to repurchase requests for the SUBJECT VEHICLE.
· 9. All persons that YOU talked to or interviewed or made any other type of inquiries from, if any, in determining YOUR response to any repurchase request for the SUBJECT VEHICLE.
· 10. YOUR analysis as to whether the SUBJECT VEHICLE should be repurchased in response to any pre-litigation request.
· 11. YOUR intention to brand the SUBJECT VEHICLE as a lemon persuant [sic] to YOUR pre-litigation letter to Plaintiff.
· 18. The information that YOU make available to YOUR employees for responding to requests for a vehicle repurchase or replacement under the Song-Beverly Act.
· 19. All training provided by YOU for purposes of evaluating a request for a vehicle repurchase or replacement in California.
Rather than asking for general policies and procedures, which Oregal allows, these topic categories are either duplicative of other topic categories or ask for information that goes towards specific work-product/litigation strategy of Defendant and are, therefore, overbroad. The court finds that questioning on these topics would require Defendant to reveal Defendant’s litigation strategy and work-product. Defendant need not produce a PMK on these categories.
C. Requests for Documents
1. Discoverable Documents
For the same reasons set forth above, the court finds that the following requests for documents are discoverable. Further, the court modifies each request below to include “except attorney-client communications and/or attorney work-product.” These requests go to the alleged defects related to the subject vehicle and/or Defendant’s general policies and procedures.
· 1. All DOCUMENTS or files maintained by YOU regarding the SUBJECT VEHICLE.
· 2. All DOCUMENTS reflecting repairs to the SUBJECT VEHICLE.
· 4. All DOCUMENTS regarding all pre-litigation requests that YOU repurchase the SUBJECT VEHICLE.
· 5. All correspondence with any person regarding the SUBJECT VEHICLE.
· 7. All correspondence with YOUR authorized dealerships regarding the SUBJECT VEHICLE.
· 8. YOUR reacquired vehicle policy and procedure manuals.
· 10. All DOCUMENTS evidencing YOUR response to the pre-litigation repurchase request for the SUBJECT VEHICLE.
· 15. All technical service bulletins performed on the SUBJECT VEHICLE.
· 16. All recalls performed on the SUBJECT VEHICLE.
· 17. All DOCUMENTS evidencing YOUR policies and procedures for determining whether particular defects substantially impair the vehicle’s use, value, of safety in California.
· 18. All DOCUMENTS evidencing YOUR policies and procedures in determining what constitutes a reasonable number of opportunities to repair a defect in California.
· 19. All DOCUMENTS related to YOUR policies and procedures involved in deciding whether to offer a repurchase of a vehicle under the Song-Beverly Act.
· 20. All DOCUMENTS which describe YOUR rules, policies, or procedures regarding requiring a consumer in California to sign a release agreement as part of a pre-litigation vehicle repurchase.
· 21. The “Release” form referenced in YOUR pre-litigation letter to Plaintiffs.
· 22. YOUR release agreement template for California customers requesting a vehicle repurchase, utilized at the time of Plaintiffs’ repurchase request.
Defendant is ordered to produce these documents at the deposition.
2. Objections Sustained
The court finds that the following requests are not tailored to general policies and procedures. Rather, these requests encompass an overbroad range of documents—many of which necessarily encompass attorney-client communications, work-product, litigation strategy related and/or which do not relate to the defects about which Plaintiff complains or vehicles of the same year, make and model as Plaintiff’s. The court, therefore, sustains Defendant’s overbroad and/or attorney-client communication/work-product objections to these requests. The motion is denied as to these requests.
· 3. All correspondence with any person regarding the SUBJECT VEHICLE.
· 6. All training materials provided to YOUR employees or YOUR call-center agents regarding the handling of consumer requests for a vehicle repurchase in California.
· 9. All DOCUMENTS that YOU reviewed in determining YOUR response to all repurchase requests for the SUBJECT VEHICLE.
· 11. All DOCUMENTS evidencing the basis of YOUR response to the pre-litigation repurchase request for the SUBJECT VEHICLE.
· 12. The resume for all persons that analyzed the request for repurchase of the SUBJECT VEHICLE.
· 13. All documents that YOU made available to YOUR employees or agents pertaining to analyzing a repurchase request pursuant to the Song Beverly Consumer Warranty Act.
· 14. All training materials provided to YOUR employees or YOUR call-center agents regarding the handling of consumer requests for a vehicle repurchase in California.
· 23. All correspondence with the California Department of Consumer Affairs from 1999 to 2019 regarding deducting negative equity in a vehicle repurchase pursuant to the Song-Beverly Act.
D. Sanctions
The court finds that, given some of Defendant’s objections are well-taken while others were boilerplate, that some of Plaintiff’s requests are necessarily overbroad while others were relevant, sanctions are not warranted in this case. The parties’ corresponding requests for sanctions are denied.
Moving party to give notice.