Judge Elaine Lu, Case 22STCV03329 2023-04-18 Tentative Ruling

On January 27, 2022, Plaintiff Ernesto Sandoval for E3 Automotive, Inc. (“Plaintiff”) filed the instant action against Defendants General Motors, LLC (“Defendant”) arising from the purchase of a 2019 Chevrolet Suburban. The complaint asserts two causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty and (2) Violation of Song-Beverly Act -Breach of Implied Warranty.

On October 24, 2022, Plaintiff filed the instant motion to compel Defendant’s further response to Request for Production of Documents, Set One (“RPDs”). On April 5, 2023, Defendant filed an opposition. On April 11, 2023, Plaintiff filed a reply. On April 14, 2023, Defendant served a notice of compliance stating that it served verified supplemental responses to RPD Nos. 16-32 and 45-46.

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Plaintiff moves to compel Defendant’s further response to RPDs nos. 16-41, and 45-46.

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional, and the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, “the 45-day clock runs only upon service of verified responses, and responses consisting of both factual responses and objections must be verified[.]” (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 136.) Moreover, the 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

On August 5, 2022, Plaintiff served the RPDs at issue on Defendant. (Davina Decl. ¶ 5, Exh. A.) On September 6, 2022, Defendant served its response to the RPDs at issue by electronic service. (Davina Decl. ¶ 6, Exh. B.) Thus, the deadline for filing a timely motion to compel further was October 24, 2022.^{^[1]} The instant motion filed on October 24, 2022 is timely.

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Here, on October 6, 2022 Plaintiff’s Counsel sent a meet and confer letter asserting that Defendant’s responses to RPDs 16, 17, 19-32, 37-43, 45-46 were insufficient and requesting a response by October 13, 2022. (Davina Decl. ¶ 8, Exh. C.) On October 14, 2022, Defense Counsel sent a response letter responding to Plaintiff’s October 6, 2022 letter agreeing to supplement the document production after a protective order had been entered. (Major Decl. ¶ 5, Exh. A.) On October 18, 2022, Plaintiff’s Counsel sent another letter indicating a willingness to agree to the entry of a protective order and requesting further responses and documents as to RPDs 16-41 and a response by October 1, 2022. (Davina Decl. ¶ 10, Exh. D.) On October 24, 2022, Defendant responded, and Plaintiff filed the instant motion. (Major Decl. ¶ 7, Exh. B.) On January 19, 2023, after the protective order was entered, Defendant produced additional documents responsive to the request. (Major Decl. ¶ 9.)

Pursuant to Code of Civil Procedure section 2031.310 “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand[.]” (CCP 2031.310(a), [italics added].) Here, as Defendant noted on April 14, 2023, Defendant has served a further response to RPDs 16-32 and 45-46, which Plaintiff does not despite. Therefore, as Defendant has voluntarily served a further response since the filing of the instant motion, Plaintiff has received the further responses beyond the original responses that Plaintiff seeks to compel. Accordingly, the instant motion is MOOT as to RPDs 16-32 and 45-46 except as to sanctions.

A separate statement is required as to “[t]he text of each response, answer, or objection, and any further responses or answers[.]” (Cal. Rules of Court, Rule 3.1345(C)(1); see also CCP § 2031.310(b)(3).) Here, Plaintiff has failed to provide a separate statement for RPD No. 32-36, and 45-46 identifying Defendant’s responses to those RPDs. Nor has the Court allowed for a concise outline. (CCP § 2031.310(b)(3).)

“DOCUMENTS sufficient to identify all of YOUR OBDII codes for the same year, make, and model as the SUBJECT VEHICLE.” (RPD No. 37.)

“DOCUMENTS sufficient to show all of YOUR vehicle symptom codes for the same year, make, and model as the SUBJECT VEHICLE.” (RPD No. 38.)

“DOCUMENTS sufficient to show all of YOUR vehicle component repair codes for the same year, make, and model as the SUBJECT VEHICLE.” (RPD No. 39.)

“DOCUMENTS sufficient to show all of YOUR customer complaint codes from 2019 to present.” (RPD No. 40.)

“DOCUMENTS sufficient to show all labor operation codes provided by YOU to YOUR authorized dealerships from 2019 to present.” (RPD No. 41.)

“GM objects to this Request on grounds the terms ‘sufficient to identify’ and ‘OBDII codes’ are overbroad, vague and ambiguous. GM objects to this Request on grounds it is overbroad and seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it is not limited in scope to the SUBJECT VEHICLE or issues in this action. GM also objects to this Request on grounds it is burdensome and oppressive, and that compliance would be unreasonably difficult and expensive considering the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. This is a simple, individual lemon law case with limited issues and this request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the Song-Beverly Consumer Warranty Act is entirely unrelated and incommensurate to the scope and breadth of this Request. GM also objects to this Request to the extent it seeks confidential, proprietary and trade secret information. No documents will be produced.” (Response to RPD No. 37; see also Responses to RPDs No. 38-41.)

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

Here, the requests could conceivably include documents that may be protected by attorney client privilege – i.e., communications with previous counsel about prior lemon law actions. However, Defendant has failed to provide any privilege log identifying what if any documents that are responsive are being withheld based on attorney client privilege/work product. While Defendant has properly raised attorney client privilege there are undoubtedly responsive documents to at least some of these requests that are not privileged. Moreover, to the extent that there are privileged documents, Defendant has not indicated which specific document are privileged. Defendant’s blanket assertion is insufficient without a privilege log identifying what documents are being withheld and enough factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].)

Accordingly, for such an objection to be sufficient to warrant a denial of discovery, Defendant must provide a privilege log identifying which -- if any -- documents are being withheld and enough information to note that the document is protected by attorney client privilege/work product. Defendant fails to do this.

Evidence Code section 1060 provides that “the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.” A trade secret is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Civ. Code, § 3426.1(d).) In setting forth whether a trade secret privilege applies, the Court of Appeal has stated that:

[T]he party claiming the privilege has the burden of establishing its existence. [Citations.] Thereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. 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.

(Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.)

Here, Defendant fails to substantiate the claim that the evidence sought is trade secret information. Nor does Defendant provide authority demonstrating that a denial of discovery is warranted. Moreover, as Plaintiff notes, the parties have already entered into a protective order. Thus, Defendant fails to justify a denial of discovery on the basis of trade secret.

As to the overbreadth objection “any party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

As to burden, “burden must be sustained by evidence showing the quantum of work required” and “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Moreover, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)

Here, the Court agrees that RPDs 37-41 are overbroad and do not appear reasonably calculated to lead to the discovery of admissible evidence. The internal repair codes for vehicles of the same make and model as the Subject Vehicle are irrelevant to whether Defendant complied under the Song-Beverly Act with their obligations to promptly repair, provide a replacement, or repurchase the Subject Vehicle after a reasonable number of attempts. Nor are these internal codes relevant to Plaintiff’s claim for civil penalties. (Complaint ¶ 25.)

Under Song-Beverly, “[i]f the buyer establishes that the failure to comply was willful,” the buyer may be entitled to receive a civil penalty, up to two times the amount of actual damages. (Civ. Code § 1794(c).) A defendant that did not replace or refund a vehicle under a “good faith and reasonable belief that the facts imposing the statutory obligation were not present” is not willful. (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051.) Nor does willfulness require a showing of malice or wrongdoing towards the other party. (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 894.) Rather, willful “amounts to nothing more than this: that the defendant knows what it is doing and intends to do what it is doing.” (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 759.) “Whether a manufacturer willfully violated its obligation to repair the car or refund the purchase price is a factual question for the jury[.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104.)

Defendant’s internal repair codes are unrelated to whether Defendant willfully failed to replace or refund the Subject Vehicle. Nor do RPDs 37-41 appear reasonably calculated to lead to the discovery of admissible evidence. Plaintiff fails to identify any reason in the moving papers or reply papers as to why RPDs 37-41 are relevant or would lead to the discovery of relevant documents. Rather, the only reason Plaintiff has articulated is that Plaintiff wishes to see how Defendant went about searching for customer complaints in order to make sure that Defendant has performed a thorough and diligent search for all customer complaints. RPDs 37-41 are not reasonably calculated to lead to the discovery of admissible evidence as they do not relate to Plaintiff’s claims or as to whether Defendant was willful. Notably, Defendant has already agreed to produce the customer complaints themselves – all customer complaints based on the same defect as alleged in the complaint for other vehicles of the same year, make, and model. (See RPDs No. 45-46.)

Accordingly, Plaintiff’s motion to compel further responses is DENIED as to RPDs. No. 37-41.

Plaintiff requests sanctions against Defendant and Defense Counsel for $2,685.00 to compensate Plaintiff for bringing the instant motion.

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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.” (CCP § 2031.300(c), [italics added].) Further, it is an abuse of discovery to make an evasive response or make unsubstantiated objections to discovery. (CCP § 2023.010(e)-(f).)

As a preliminary matter, the amount requested is unsupported on its face. It appears that preparation of the instant motion involved primarily copying and pasting with little additional work. Moreover, Plaintiff failed to sufficiently meet and confer, including during the informal discovery conference. (CCP § 2023.020.) Plaintiff fails to explain why all of the requests at issue are relevant such as to demonstrate good cause in bringing the instant motion. Accordingly, the Court finds that the imposition of sanction against Defendant would be unjust. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Based on the foregoing, Plaintiff Julio Chavez’s motion to compel further responses to Request for Production, Set One from Defendant General Motors, LLC is MOOT as to RPDS 16-32, 45-46 and otherwise DENIED as to RPDs 33-41.

[1] October 23, 2022 which is exactly 47 days from service of the responses to the RPDs – as Defendant served the responses electronically – was a Sunday– and thus a court holiday extending the deadline to file the instant motion to October 24, 2022. (CCP §§ 12-12(c).)

Superior Court of California

County of Los Angeles

Department 26