Judge: George F. Bird, Jr., Case: 22CMCV00196, Date: 2023-02-23 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 22CMCV00196    Hearing Date: February 23, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff Dennis Alberto Fernandez (“Plaintiff”) filed the Complaint in this action on June 30, 2022, against Defendant General Motors, LLC (“Defendant”). Plaintiff alleges that on or about October  17, 2019, Plaintiff purchased a 2019 Chevrolet Silverado (the “Vehicle”) manufactured and/or distributed by Defendant. (Complaint (“Compl.”), ¶ 6.) At the time of purchase, Plaintiff alleges he received an express written warranty from Defendant in which Defendant warranted to preserve the utility and performance of the Vehicle. (Compl., ¶ 10.) After Plaintiff took possession of the Vehicle, Plaintiff alleges that several defects developed in the steering system, engine, transmission system, electrical system, body system, and braking system. (Compl., ¶¶ 11, 12.) Plaintiff alleges that he presented the Vehicle for repair and that Defendant was unable to repair the Vehicle within a reasonable number of attempts. (Compl., ¶¶ 14, 15.) Plaintiff now brings causes of action for (1) violation of Civil Code section 1793.2, subdivision (d), (2) violation of Civil Code section 1793.2, subdivision (b), (3) violation of Civil Code section 1793.2, subdivision (a)(3), (4) breach of express written warranty, and (5) breach of the implied warranty of merchantability.

II.       MOTION TO COMPEL FURTHER RESPONSES

A.    Plaintiff’s Motion was filed December 28, 2022.

Plaintiff filed this Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One (“Motion”), alleging that Defendant has provided meritless objections to Plaintiff’s Request for Production of Documents, Set One, Nos. 7, 16-33, 48-50, 54, 60, 68, and 87-95 (collectively “Requests”). Plaintiff argues that the Requests seek documents directly relevant to their claims under the Song-Beverly Consumer Warranty Act and that Defendant’s objections fail to adequately respond.

B.     Defendant’s Opposition was filed February 7, 2023.

Defendant argues that Plaintiff failed to satisfy the meet and confer requirements of a motion to compel further. Defendant states that the Requests are overbroad by seeking documents related to other vehicles and that Defendant has produced all relevant documents pertaining to the Vehicle at issue.

C.     Plaintiff’s Reply was filed February 15, 2023.

            Plaintiff argues that they did meet and confer in good faith before bringing this discovery dispute. Plaintiff also argues that the Requests are not overbroad, only seek discoverable documents, and that Defendant’s objections are not code compliant.  

III.       LEGAL STANDARDS

            A party who receives a demand for production must respond separately to each individual item requested with either a statement indicating compliance, a statement that the party lacks the ability to comply, or an objection. (Code Civ. Proc., § 2031.210, subd. (a).) If the response is an objection, it must “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” and “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.” (Code Civ. Proc., § 2031.240, subd. (b).) An objection based on privilege must also “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c).)¿ 

¿           After receiving the response, the party who demanded production may move for an order compelling further responses if the party deems that, among other grounds, the objections in the response are without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)¿The motion compelling further responses shall “set forth specific facts showing good cause justifying the discovery sought by the demand,” include a meet and confer declaration, and include a separate statement outlining the responses in dispute. (Code Civ. Proc., § 2031.310, subd. (b).)¿

IV.       EVIDENTIARY OBJECTIONS

            Plaintiff brings six evidentiary objections to the declaration of Cameron Major. The Court SUSTAINS objections 1, 2, 3, 4, 5, and 6.

V.          DISCUSSION

A.    Meet and confer.

            Defendant argues that Plaintiff’s Motion should be denied because Plaintiff failed to properly meet and confer in good faith. A motion to compel further must be accompanied by a meet and confer declaration which “state[s] facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civ. Proc., § 2031.310, subd. (b); Code Civ. Proc., § 2016.040.)

            Here, the Motion is accompanied by the declaration of Sean Crandall, counsel for Plaintiff. The Declaration states that Plaintiff sent a letter attempting to meet and confer regarding the discovery of electronically stored information (“ESI”) on August 29, 2022, to which Defendant responded stating that meet and confer efforts were premature. (Declaration of Sean Crandall, ¶¶ 29, 30.) After Defendant served their answer to the discovery request at issue here, Plaintiff again declares that a meet and confer letter was sent attempting to address the objections and ESI discovery. (Declaration of Sean Crandall, ¶ 31.) Sean Crandall declares that Defendant responded to the meet and confer letter on November 22, 2022, agreeing to provide some supplemental documentation. (Declaration of Sean Crandall, ¶ 32.)

            The Court finds that the meet and confer requirement is satisfied. Plaintiff shows that their letters and communications with Defendant did in fact lead to a narrowing of the dispute as Defendant agreed to provide some supplemental documentation.

            The Court notes that in Defendant’s response to Plaintiff’s meet and confer letter, Defendant states “GM will agree to an informal discovery conference, if this court will permit such a discovery tool, in order to come to a resolution of any remaining disputes.” (Declaration of Sean Crandall, Exhibit 16 p. 6.) The Courtroom Information provides that when there is a discovery dispute between the parties “counsel must call the courtroom to schedule an informal discovery conference (IDC) with Judge Bird. The IDC should eliminate any need for a motion. Absent a showing of good cause, the Court will not hear a discovery motion before conducting an IDC.” (Courtroom Information found at <https://www.lacourt.org/courtroominformation/ui/result.aspx>, p. 3 [as of February 17, 2023].) Plaintiff should abide by the Courtroom Information and engage in an IDC especially when Defendant has indicated a willingness to participate. Though Plaintiff has failed to request and engage in an IDC, the Court finds that the parties have attempted to resolve the dispute informally and that good cause exists to now hear this Motion.

B.     Requests Nos. 16-33 and 87-95.

Plaintiff’s discovery requests Nos. 16-33 seek documents related to the alleged “STEERING/SUSPENSION DEFECT,” “ENGINE DEFECT,” and “TRANSMISSION DEFECT” which are defined terms in the discovery request and are defects the Vehicle allegedly suffers from. (Compl., ¶ 12; Plaintiff’s Separate Statement, p. 3:1-27.) Plaintiff’s discovery requests Nos. 87-95 seek communications related to specific Preliminary Information documents, Trade Service Bulletins, and Customer Service Campaigns. (See Plaintiff’s Separate Statement, pp. 207-285.) Defendant provided a nearly copy-and-paste response to each request stating that the terms used are vague or ambiguous, the request is based on an improper assumption that defects exist, the request is overbroad and irrelevant as it was not likely to lead to admissible evidence, the request is burdensome and oppressive in light of the claims made, and the request calls for confidential information, trade secrets, or information protected by the attorney-client privilege or work product doctrine.

      First, Defendant’s responses are not code compliant. The repeated objection fails to “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.” (Code Civ. Proc., § 2031.240, subd. (b)(1).) Defendant fails to identify a single document, thing, land, or ESI within their objections.

Defendant argues that each and every request contains terms that are vague or overbroad. The Court disagrees. Each request calls for documents related to a clearly defined defect and is limited in scope to vehicles of the same year, make, and model as the Vehicle at issue here or ask for documents related to a specific Trade Service Bulletin, Customer Service Campaign, or Preliminary Information document. (See Plaintiff’s Separate Statement, pp. 10-169, 207-285.) The requests are sufficiently narrow and specific so that Defendant can determine which documents fall into each request.

As to attorney-client privilege and the work-product doctrine, “If 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.” (Code Civ. Proc. §2031.240, subd. (c)(1).) Here, Defendant’s objections provide no privilege logs and do not give any factual information as to why documents regarding “internal analysis,” “investigations,” “complaints,” “failure rates,” or “fixes” of the defects alleged would fall under the attorney-client privilege or work product doctrine. Defendant similarly does not demonstrate why documents related to the Trade Service Bulletins, Customer Service Campaigns, or Preliminary Information documents fall under the attorney-client privilege or work product doctrine.

As to confidentiality, this is not a proper objection. A party who believes that a discovery request seeks confidential information must seek a protective order from the court. (Columbia Broadcasting System, Inc. v. Sup. Ct., (1968) 263 Cal.App.2d 12, 23.)

As to the requests being burdensome and oppressive, Defendant does not offer any facts in their objections to demonstrate the burden the requests impose. Objections of undue burden to requests for electronically stored information (“ESI”), which these requests specifically indicate, require Defendant to specify the “types or categories of sources of electronically stored information that are not reasonably accessible.” (Code Civ. Pro. § 2031.210, subd. (d).) Defendant does not specify any types or categories of ESI. Defendant does not give any indication of the time, expense, or effort that amounts to the undue burden each request would impose.

Based on the foregoing, the Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One, is GRANTED as to requests Nos. 16-33 and 87-95.

C.     Requests Nos. 7, 48-50, 54, 60, and 68.

In the Opposition, Defendant indicates they are willing to produce the documents requested in requests Nos. 7, 54, 60, and 68. (Opposition, p. 6:3-11.) The requests call for a copy of the Warranty Policy and Procedure Manual, policies and procedures used when there is a request for a refund or replacement vehicle, a copy of the organizational chart, and training documents for handling consumer lemon law requests. The Court finds that these documents are relevant to the claims by Plaintiff. As Defendant no longer objects to producing these documents, Defendant will be compelled to produce these documents.

For request No. 48, Plaintiff requests documents Defendant uses to evaluate repurchase requests pursuant to the Song-Beverly Consumer Warranty Act. (Plaintiff’s Separate Statement, p. 169:11-12.) Defendant objects that such a request would require “GM to compile information related to GM world-wide on every vehicle sold.” (Plaintiff’s Separate Statement, p. 169:14-15.) The Court does not interpret the request so broadly. Plaintiff only requests documents that Defendant uses to evaluate repurchase requests, not each repurchase request itself. The request also does not seek how Defendant evaluates every repurchase request, but only those pursuant to the Song-Beverly Consumer Warranty Act. The Court finds that request No. 48 is not overly broad.

Defendant again objects on grounds that the request calls for trade secrets, confidential information, documents protected by the attorney-client privilege, and documents protected by the work-product doctrine. As above, confidentiality is not a proper objection and requires Defendant to seek a protective order. Also as stated above, an objection based on privilege or the work-product doctrine requires sufficient factual information for other parties to evaluate the merits of that claim. Defendant provides no context for their privilege or work-product objections and merely states that they apply.

Request No. 49 seeks documents which “evidence, describe, refer, or relate to YOUR rules, policies, or procedures since 2017 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Song-Beverly Consumer Warranty Act.” (Plaintiff’s Separate Statement, p. 174:18-20.) Defendant again alleges the same copy-and-paste objections that the terms are vague or ambiguous, the request is overbroad and irrelevant as it is not likely to lead to admissible evidence, the request is burdensome and oppressive in light of the claims made, and the request calls for confidential information, trade secrets, information protected by the attorney-client privilege, and/or information protected by the work product doctrine.

The terms of this request are not vague or overbroad. The request is narrowly tailored by a date range and limited to a state relevant to this action. The request is also narrowed to only seek documents related to policies of Defendant for refunds or replacement vehicles under the Song-Beverly Consumer Warranty Act, which is the act relevant to this action. The Court finds that the request is narrowed sufficiently to allow Defendant to identify and produce proper documents.

As for the objections related to undue burden, confidential information, attorney-client privilege, and work product doctrine, Defendant fails to properly give code compliant objections for the same reasons analyzed under requests Nos. 16-33 and 87-95.

Finally, request No. 50 seeks documents “which evidence, describe, refer, or relate to procedures used by YOU for the handling of complaints by consumers regarding vehicles YOU manufactured or distributed.” The Court finds this request to be overbroad. This request seeks documents about any procedures for any complaint on any vehicle manufactured by Defendant. Plaintiff does not allege a defect with every item in the Vehicle, but this request seeks information on how every complaint is handled. The request is not even limited by state, country, or complaints relevant to the Song-Beverly Consumer Warranty Act.

Based on the foregoing, the Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One, is GRANTED as to requests Nos. 7, 48, 49, 54, 60, and 68. The Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One, is DENIED as to request No. 50.

D.    Documents related to other vehicles.

Defendant argues that “Documents about other vehicles or the design of the Silverado are irrelevant to the pending claims.” (Opposition, p. 6:17-19.) Under the Song-Beverly Consumer Warranty Act, a buyer must prove that a defendant failed to repair a warranted defect in the subject vehicle, despite having been provided with a reasonable number of repair opportunities. (Oregel v. Am. Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) If a manufacturer willfully fails to fulfill any of its obligations, then the manufacturer is subject to civil penalty damages of up to two times the buyer’s damages. (Civ. Code, § 1794, subd. (c).) Relevant factors in assessing willfulness include “(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 repair or replace.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 135 [41 Cal.Rptr.2d 295], as modified on denial of reh'g (June 22, 1995).)

The requests at issue here go directly to the heart of Plaintiff’s claim. Evidence that several vehicles of the same year, make, and model suffer from the same defects and that repairs made to the relevant defects are either consistently sufficient or tend to fail is directly relevant to Plaintiff demonstrating that Defendant knew of the defect, knew of a proper repair, or was unable to find a suitable repair within a reasonable number of attempts. Plaintiff also seeks internal documents which may demonstrate Defendant’s awareness of the alleged defects. In Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, the Court of Appeals relied on internal emails to support an award of civil penalties under the Song-Beverly Consumer Warranty Act. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 347 [270 Cal.Rptr.3d 335, 346, 56 Cal.App.5th 334, 347].) Plaintiff also seeks documents that Defendant uses to evaluate Song-Beverly Consumer Warranty Act claims. These documents may reasonably demonstrate “whether the manufacturer had a written policy on the requirement to repair or replace” which is a factor of willfulness that Plaintiff must demonstrate to obtain civil penalties. (Jensen v. BMW of North America, Inc., supra., 35 Cal.App.4th at p. 135.)

Plaintiff and Defendant spend much time debating the applicability of Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, in which the Court of Appeal found expert testimony about the transmission model in the vehicle at issue and other vehicles from the manufacturer both probative and not prejudicial, and Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, in which the Court of Appeal found that the trial court abused its discretion by failing to impose terminating sanctions for abuses of the discovery process. The question of discoverability of documents not directly pertaining to the vehicle at issue in a Song-Beverly Consumer Warranty Act claim was not before the Court of Appeal in either Donlen or Doppes. Without relying on either authority, the Court is satisfied that the documents requested are relevant to the elements Plaintiff must prove to be awarded civil penalties in this action and the documents are discoverable as they are reasonably calculated to lead to admissible evidence. (Code Civ. Proc., § 2017.010.)

VI.    CONCLUSION

             Based on the forgoing, the Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One, is GRANTED as to requests Nos. 7, 16-33, 48, 49, 54, 60, 68, and 87-95. The Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One, is DENIED as to request No. 50.

Dated: February 23, 2023                                           __________________________________

                                                                                                Judge of the Superior Court