Judge: Gregory Keosian, Case: 22STCV13083, Date: 2023-04-20 Tentative Ruling
Case Number: 22STCV13083 Hearing Date: April 20, 2023 Dept: 61
Plaintiff
Arlen L. Jackson’s Motion to Compel Further Responses to Requests for
Production, Set One, from Defendant General Motors LLC is GRANTED. Sanctions
are awarded against Defendant in the amount of $3,960.
Plaintiff to give notice.
I.
MOTION TO
COMPEL FURTHER – PRODUCTION OF DOCUMENTS
“A party may demand
that any other party produce . . . a document that is in the possession,
custody, or control of the party on whom the demand is made.” (Code Civ. Proc.,
§ 2031.010(b).) The demanding party may move for an order compelling further
response to the demand if the demanding party deems that (1) a statement of
compliance with the demand is incomplete, (2) a representation of inability to
comply is inadequate, incomplete, or evasive, or (3) an objection in the
response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The
motion shall set forth specific facts showing good cause justifying the
discovery sought by the demand,” and “[t]he motion shall be accompanied by a
meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §
2031.310(b).)
A motion to compel
a further response to an inspection demand must set forth specific facts
showing “good cause” justifying the discovery sought by the inspection demand.
(Code Civ. Proc., § 2031.310(b)(1); Kirkland
v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a
legitimate privilege issue or claim of attorney work product, that burden is
met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th
443, 444.) Once the moving party demonstrates good cause for the discovery, the
burden is on the responding party to justify any objection or failure to fully
respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d
210, 220.)
Plaintiff Arlen L.
Jackson (Plaintiff) moves to compel further responses to Requests for
Production No. 1–3, 6–8, 12, 17, 20, 21, 23, 25–27, 32, 38, 40, 44, 45, 47,
49–51, 56, 62, 64, 87, 91, 93, 100, 101, 103, 112, 122, 129–136, 141, and 144,
from Defendant General Motors. Plaintiff divides the requests into the
following categories:
·
Documents concerning the subject vehicle
(Requests No. 1–3, 6–8, 12, and 17);
·
Documents concerning other 2016 Chevrolet Cruze
vehicles with the same cooling and engine defects as the subject vehicle
(Requests No. 20, 21, 23, 25–27, 32, 38, 40, 44, 45, 47, 49–51, 56, 62, and
64);
·
Technical service bulletins (TSBs), recalls, and
communications with the National Highway Traffic Safety Agency (NHTSA) related
to the same defects (Requests No. 87, 91, 93, 100, 101, 103, and 129–136);
·
Defendant’s lemon law policies and procedures
(Requests No. 112, 122, 141, and 144)
(Motion at p. 2.)
Defendant’s
responses consisted of objections, coupled with various statements of
compliance or non-compliance. To Requsts No. 1, 2, 6, and 7, which concerned
the subject vehicle, Defendant offered assurance that it would “comply in part”
and provide a list of specified documents. Defendant offered a statement of
inability to comply to Request No. 3 (which sought root-cause investigations concerning
parts taken from the subject vehicle), and a statement that it would “comply in
whole” to Request No. 8 (which sought the warranty repair histories relating to
the subject vehicle), but only by
producing the Global Warranty History Report. To the rest of the requests,
Defendant offered only objections, stating the requests were overbroad, burdensome,
and sought privileged information.
Defendant in
opposition argues that Plaintiff failed to adequately meet and confer before
filing this motion. (Opposition at p. 3.) Defendant also argues that the
requests use impermissible omnibus language and sweep in vehicles of the same
year, make and model as Plaintiff’s own, when this case concerns only
Plaintiff’s vehicle. (Opposition at pp. 3–7.) Defendant finally argues that
Plaintiff seeks trade-secret information. (Opposition at pp. 7–9.)
Defendant’s
meet-and-confer objection lacks merit. The evidence shows that Plaintiff sent a
meet-and-confer letter regarding Defendant’s discovery responses, and although
Defendant characterizes such correspondence as strident and obstinate, the
letters show Plaintiff offering to enter a protective order. (Neubauer Decl. ¶¶
34–38, Exhs. 10–14.)
Defendant’s
objection based on overbreadth are unpersuasive, as Plaintiff may use evidence
of other vehicles to pursue his Song Beverly claims. To succeed on a claim
brought under the Song-Beverly Consumer Warranty Act, the plaintiff bears the
burden of proving several elements, including nonconformity of a vehicle that
substantially impaired its use, value, or safety, presentation of a vehicle to
a manufacturer or authorized representative for repair, and failure to repair
the defect after a reasonable number of attempts. (Oregel v. Am. Isuzu Motors, Inc. (“Oregel”) (2001) 90
Cal.App.4th 1094, 1101.)
A buyer may be entitled to a civil penalty of up to two
times the actual damages upon a showing that the manufacturer willfully failed
to abide by any of its obligations under the Act. (Civ. Code § 1794, subd.
(c).) Evidence that a defendant “adopted internal policies that erected hidden
obstacles to the ability of an unwary consumer to obtain redress under the
Act,” is relevant to a determination of “willfulness” in relation to prayers
for the civil penalty. (Oregel, supra, 90 Cal.App.4th at p. 1105.)
There is case authority for this proposition. The court in Doppes v. Bentley Motors, Inc. (2009)
174 Cal.App.4th 967, 993–994, held that Bentley’s failure to turn over customer
complaints regarding defects on other Bentleys to support the plaintiff’s claim
under the Song-Beverly Act was an abuse of discovery so flagrant that the trial
court abused its discretion by not
imposing terminating sanctions. Other cases have embraced a evidentiary rule
similar to that only implicit in Doppes.
In Donlen v. Ford Motor Company
(2013) 217 Cal.App.4th 138, the trial court allowed an expert to testify that a
particular transmission was defective
because he had heard from “others” that the same transmission in “other
vehicle[s]” was “problematic.” The Court of Appeal held that the “other
vehicle” testimony was properly “limited to the transmission model Ford
installed in plaintiff’s truck and other vehicles.” (Id.
at p. 154.) The court held that “[s]uch
evidence certainly was probative and not unduly prejudicial.” (Ibid.)
And in another case, Santana v. FCA US, LLC (2020) 56 Cal.App.5th
334, 347, the court held that a manufacturer’s internal emails concerning a
mechanical defect in a lemon law case were relevant to show that the
manufacturer “intentionally chose not to honor the express warranty,” and thus
merited civil penalties. Thus Plaintiff is not limited to requests concerning
the particular vehicle at issue.
This leaves Defendant’s responses that did not stand purely
on objections, but rather purported to comply in whole, in part, or that
compliance was not possible — Requests No. 1–3 and 6–8. Defendant’s statements
of compliance in part are supported by objections which lack merit, and which
ought therefore to be changed to statements of compliance in whole. The statute
applicable to such statements is Code of Civil Procedure § 2031.220:
A
statement that the party to whom a demand for inspection, copying, testing, or
sampling has been directed will comply with the particular demand shall state
that the production, inspection, copying, testing, or sampling, and related
activity demanded, will be allowed either in whole or in part, and that all
documents or things in the demanded category that are in the possession,
custody, or control of that party and to which no objection is being made will
be included in the production.
Defendant’s statement of compliance “in whole” in response
to Request No. 8 is deficient, as it promises compliance, but not as to all
documents or things in the demanded category in its possession, custody, or
control, but merely to a single named document.
Likewise, where documents are being withheld pursuant to an
objection, such as privilege or the work product doctrine, statute states that
the responding party must do the following:
(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.
(Code Civ. Proc. § 2031.240, subd. (b)(1)–(2).) Thus
Defendant must state whether any documents are being withheld pursuant to
objection, identify the document, and give the reason therefore.
And Defendant’s statement of inability to comply in response
to Request No. 3 is likewise deficient. Such a response is governed by statute
as follows:
A
representation of inability to comply with the particular demand for
inspection, copying, testing, or sampling shall affirm that a diligent search
and a reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because
the particular item or category has never existed, has been destroyed, has been
lost, misplaced, or stolen, or has never been, or is no longer, in the
possession, custody, or control of the responding party. The statement shall
set forth the name and address of any natural person or organization known or
believed by that party to have possession, custody, or control of that item or
category of item.
(Code Civ. Proc. § 2031.230.) Defendant’s response does not
affirm that a diligent search and a reasonable inquiry has been made. (Separate
Statement at pp. 19–20.)
Defendant next argues that the requests seek confidential
trade secret information. Defendant argues that disclosing documents related to
internal analysis of the vehicular issues concerned in this case risks exposing
sensitive information related to its vehicles’ engineering, manufacturing, and
root cause analysis, which would cause competitive disadvantage to Defendant if
such information was released to the public. (Opposition at pp. 7–9.) But
Plaintiff has already offered to execute a protective order in Defendant’s
favor, and Defendant does not explain why the execution of such an order, as
opposed to total nondisclosure, is insufficient to protect its interests.
Defendant also argues that it has already produced
responsive documents as to Requests No. 1, 11, 19, 31, and 55. (Opposition at
pp. 4–6.) But this argument is unpersuasive, as Defendant has indicated that it
is only making partial production in response to these requests, withholding
others pursuant to objections discussed above, or else has offered
non-compliant statements of inability to comply, which do not indicate whether
a diligent search for the documents has been made. (See Code Civ. Proc.
§ 2031.230.)
The motion is therefore GRANTED.
II.
SANCTIONS
Statute provides that the court shall impose sanctions upon
a party who unsuccessfully makes or opposes a motion to compel further response
to interrogatories, requests for production of documents, or requests for
admission, absent substantial justification otherwise. (Code Civ. Proc. §§
2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)
Plaintiff seeks $5,940.00 in sanctions representing 12 hours
of attorney work at $495 per hour. (Neubauer Decl. ¶ 50.) Plaintiff’s counsel
also states that Plaintiff only seeks sanctions for eight hours of work at the
same rate, for a maximum sanctions award of $3,960.00. (Ibid.)
Sanctions are awarded against Defendant in the amount of $3,960.