Judge John J. Kralik, Case Number: 22BBCV00666, Date: 2023-11-03 Tentative Ruling

Plaintiff Fadi Khalil (“Plaintiff”) alleges that on October 7, 2020, he purchased a 2020 GMC Sierra. The action arises out of the warranty and repair obligations of Defendant General Motors, LLC (“Defendant”) in connection with the vehicle Plaintiff purchased and for which Defendant issued a written warranty. The warranty was not issued by the selling dealership. Plaintiff alleges that the vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty, including suspension, engine, electrical, and emission system defects.

The complaint, filed on September 20, 2022, alleges causes of action for: (1) violation of Song-Beverly Act – breach of express warranty; (2) violation of Song-Beverly Act – breach of implied warranty; and (3) violation of Song-Beverly Act § 1793.2.

On June 23, 2023, Plaintiff filed a motion to compel Defendant’s further responses to Requests for Production of Documents, set one (“RPD”).[1]

On October 23, 2023, Defendant filed opposition papers. On October 27, 2023, Defendant filed the memorandum of points and authorities in support of the opposition.

Plaintiff moves to compel Defendant’s further responses to RPD Nos. 1-3, 5, 8-9, 11-12, and 16-37. (The notice of motion states that Plaintiff is seeking a further response to RPD No. 4 and does not include No. 5, but the separate statement omits No. 4 and includes No. 5.)

RPD Nos. 1-2 ask for all documents that Defendant identified in its responses to Plaintiff’s (1) SROG and (2) FROG. Defendant objected that the RPDs were duplicative but responded, without waiving objections, that it would comply by producing non-privileged documents. Plaintiff argues that this is not a code compliant response, while Defendant argues that it has already produced responsive documents and producing more would be unnecessary. However, based on Defendant’s response to the actual RPDs states that only non-privileged documents will be produced. If there are documents that have not been produced on the basis of privilege, a privilege log should be provided. (CCP § 2031.240.) In addition, based on Defendant’s provided response to the RPDs and its arguments in opposition, it is unclear whether a full production of documents has been made or documents have been withheld. As such, a further response shall be ordered. However, the Court will limit the production of documents and/or the production of a privilege log to documents that pertain specifically to Plaintiff, Plaintiff’s vehicle, and 2020 GMC Sierra vehicles. The motion is granted as to RPD Nos. 1-2.

RPD No. 3 asks for all documents which evidence, support, refer, or relate to each of the affirmative defenses as set forth in Defendant’s answer. Defendant objected that the RPD was vague, lacked specificity, was overbroad and unduly burdensome, and sought information protected by the attorney-client privilege and work product doctrine. Defendant responded, without waiving objections, that it would comply in part and produce the Vehicle Product Brochure, the Service Request Activity Reports, New Vehicle Limited Warranty, Global Warranty History Report, and incidentally obtained repair orders, Repair Order Details, and the Owner’s Manual applicable to the subject vehicle. Based on Defendant’s objections and responses, it is unknown whether Defendant has produced all documents as requested by the RPD. Defendants make objections based on privilege, but a privilege log has not been produced to determine whether the documents are in fact privileged. Further, the documents sought would be relevant to the action as the documents relate to Defendant’s affirmative defenses in its answer. The Court will order a further response as to RPD No. 3. If Defendant lacks any further documents and/or a full production of documents has been made, then it should state so clearly in its further response.

RPD No. 5 asks for all documents which evidence, describe, refer, or relate to any inspection of the subject vehicle. Defendant objected that the RPD was vague, was overbroad and unduly burdensome, and could potentially seek information beyond the issues in this lawsuit (like state-mandated vehicle inspection stickers and related documents). Defendant objected to the production of any presale examination, test, or inspection without the entry of a protective order. Defendant responded, without waiving objections, that it would comply in part and produce the Service Request Activity Reports and Global Warranty History Report applicable to the subject vehicle. The RPD is limited to documents related to the inspection of Plaintiff’s subject vehicle and documents before and after the sale of the vehicle would be relevant to this action to determine whether Defendant was aware of any issues with the vehicle. The Court will order a further response to RPD No. 5 subject to the parties entering a protective order. The parties should meet and confer to enter a protective order to designate confidential documents.

RPD No. 8 asks for all documents evidence, describe, refer, or relate to repairs or service performed on the subject vehicle at any time and by any person, including, but not limited to, service request documents, repair orders, invoices, labor receipts, parts order forms, computer printouts, parts receipts, canceled checks, billing statements, and printout of the warranty repair history for the subject vehicle. Defendant objected that the RPD was vague, overbroad, unduly burdensome, and irrelevant; sought documents outside its control; presumed that Defendant serviced or repaired the subject vehicle after it left its custody or control; sought confidential and trade secret information; and sought information protected by the attorney-client privilege and work product doctrine. Without waiving objections, Defendant responded that the subject vehicle was serviced and repaired by an authorized repair agency but not by Defendant, and that it will produce any incidentally obtained repair orders, the Global Warranty History Report, and any Service Request Activity Reports applicable to the subject vehicle. The documents sought in this RPD are relevant to the action as it pertains solely to the subject vehicle. It is unclear how the attorney-client privilege or work product doctrine would apply for transactions that occurred between Plaintiff, Defendant, and/or Defendant’s authorized repair facility. Further, to the extent there are confidentiality issues, the Court orders the parties to meet and confer about entering a protective order. The Court grants the motion as to RPD No. 8 subject to a protective order.

RPD No. 9 asks for all documents which evidence, refer, or relate to Plaintiff’s request for refund of the price Plaintiff paid for the subject vehicle. Defendant responded that it has no record of Plaintiff making a pre-suit repurchase request regarding the subject vehicle, such that no documents will be produced. Defendant’s response is sufficient as it was never in possession of such a document and no such document existed (at least as represented by Defendant). As such, the motion is denied as to RPD No. 9.

RPD No. 11 asks for all documents which evidence, describe, refer, or relate to any contact between Defendant and Plaintiff. RPD No. 12 asks for all documents which evidence, describe, refer, or relate to any contact with any person (other than defense counsel), and relating or referring to Plaintiff or the subject vehicle. Defendant objected that the RPD were vague, overbroad, unduly burdensome, and irrelevant; the documents were equally available to Plaintiff; sought confidential and trade secret information; and sought information protected by the attorney-client privilege and work product doctrine. Without waiting objections, Defendant stated it would comply in part by producing the Global Warranty History Report, the Service Request Activity Report(s), and any incidentally obtained repair orders applicable to the subject vehicle. For the same reasons discussed above, the Court will order a further response to Nos. 11-12 subject to a protective order. Further, if documents are privileged by the attorney-client privilege and work product doctrine or deemed a trade secret, Defendant should provide a privilege log to that effect.

Defendant objected to RPD Nos. 16-33 and 36 in the same manner and thus they will be considered together.

· RPD No. 16 asks for any document related in any way to determining whether repairs should be covered by Defendant’s warranty.

· RPD No. 17 asks for all of Defendant’s warranty claims policy and procedure manuals from 2010 to the present.

· RPD No. 18 asks for all documents which evidence, describe, refer, or relate to its rules, policies, or procedures since 2010 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in California under the Act.

· RPD No. 19 asks for all documents which evidence, describe, refer, or relate to its rules, policies, or procedures used by Defendant for handling complaints by consumers regarding vehicle it manufactured or distributed.

· RPD No. 20 asks for all documents issued by Defendant or on its behalf which evidence, describe, refer, or relate to its rules, policies, procedures, and/or instructions which its employees and authorized agents should follow after a decision has been made by Defendant to authorize either a refund of the purchase price or a replacement vehicle to its customer.

· RPD No. 21 asks for all documents issued by Defendant or on its behalf which evidence or describe policies, procedures, and/or instructions since 2010 that its employees and agents should follow when evaluating a customer request for their money back or a replacement of a motor vehicle manufactured or distributed by Defendant.

· RPD No. 22 asks for all documents evidencing and/or describing its training materials related to its policy regarding how to calculate a repurchase.

· RPD No. 23 asks for all documents referencing, evidencing, and/or relating to its policies, procedures, or guidelines for determining whether a vehicle is eligible for a vehicle repurchase.

· RPD No. 24 asks for all documents referencing, evidencing, and/or relating to its training material related to its policy to encourage customers to give Defendant another opportunity to repair their vehicles.

· RPD No. 25 asks for all documents referencing, evidencing, and/or relating to its policy defining what constitutes a repair to determine eligibility for repurchase or replacement in California.

· RPD No. 26 asks for all documents issued by Defendant or on its behalf which evidence or describe policies, procedures and/or instructions since 2010 which it authorized repair facilities should follow regarding customer requests for a refund of the price paid for a vehicle or a replacement vehicle.

· RPD Nos. 27-29 ask for all documents which evidence or describe: (27) its Lemon Law Escalation Process; (28) its call center escalation process; and (29) any predictive model used to determine if one its vehicles is a candidate for escalation.

· RPD No. 30 asks for all documents any consultant provided Defendant from 2010 to present that are related in any way to the Act.

· RPD No. 31 asks for all documents evidencing any policies, procedures, or guidelines provided by Defendant to any agency regarding what constitutes a substantial nonconformity under the Act from 2010 to present.

· RPD No. 32 asks for all documents evidencing or describing statistics for the number of repurchases and replacements Defendant has made in California in response to consumers’ personal requests (i.e., a consumer request without an attorney) from 2010 to present.

· RPD No. 33 asks for all documents which evidence or describe the numbers of owners 2020 GMC Sierra vehicles who have complained of any of the conditions, defects, or nonconformities for which Plaintiff presented the subject vehicle to Defendant or its authorized repair facility for repair.

· RPD No. 36 asks for all documents which describe or discuss above-average repair rates to 2020 GMC Sierra vehicles.

Defendant objected that the RPDs were vague, overly broad, unduly burdensome, and irrelevant; sought confidential and trade secret information; and sought information protected by the attorney-client privilege and work product doctrine. Defendant responded that no documents would be produced. As currently drafted, Plaintiff’s RPDs can potentially seek all documents for an indefinite amount of time for any type of vehicle every manufactured or distributed by Defendant. The RPDs as worded by Plaintiff are overbroad in scope and would, in part, seek irrelevant information that is beyond the scope of this action. While some RPDs (like Nos. 17 and 18) have time limitations from 2010 to the present, the time limitation seeks over 13 years of documents without scope to the type of vehicle at issue. Thus, the Court will narrow the scope of the RPDs such that Defendant need only produce documents regarding the 2020 GMC Sierra from 2 years prior to purchase to the present that constitute the rules, policies, procedures, training manuals, instructions, etc. used by Defendant and its employees/agents/repair facilities/etc. in the State of California. In addition, customer complaints, requests for repurchase/repair, etc. shall be similarly limited to repurchase complaints regarding the 2020 GMC Sierra in California. The Court will also order the parties to meet and confer to enter into a protective order to protect the confidentiality of Defendant’s training manuals, procedures, complaint resolution procedures, and the like. The motion is granted as to RPD Nos. 16-33 and 36 subject to these limitations.

RPD No. 34 seeks all documents which evidence, refer, or relate to all TSBs which have been issued for 2020 GMC Sierra vehicles, including, but not limited to, complete copies of all such TSBs that involve any part, component, subcomponent, system, assembly, or sub-assembly for which the subject vehicle was subject to one or more repair attempts as reflected in Plaintiff’s Warranty Claim Records, or in the repair orders produced during discovery in this case. Defendant objected that the RPD was vague, overly broad, unduly burdensome, and irrelevant; sought confidential and trade secret information; and sought information protected by the attorney-client privilege and work product doctrine. Without waiving objections, Defendant stated it would comply in part and produce a list of TSBs for vehicles of the same year, make, and model as the subject vehicle and after the list has been produced and upon Plaintiff’s request, Defendant will search and produce copies of a reasonable number of TSBs that Plaintiff has identified as relevant to the conditions alleged in the complaint. The Court finds that Defendant GMC’s approach to this element of the production was reasonable, and therefore denies the motion as to this request.

RPD No. 35 asks for all documents which evidence, refer, or relate to all Recalls which have been issued for 2020 GMC Sierra vehicles that involve any part, component, sub-component, system, assembly, or sub-assembly for which the subject vehicle was subject to one or more repair attempts as reflected in Defendant’s Warranty Claim Records or in the repair orders produced during discovery in this case. Defendant objected in a similar manner as above and responded that it would comply in part by producing copies of bulletins for every field action, including any recalls, it issued for the subject vehicle as identified in the Global Warranty History Report (screenshot provided). The screenshot is regarding Plaintiff’s subject vehicle which states that there is no current record of required field actions. However, it is unclear if this applies only to Plaintiff’s specific vehicle that he purchased or whether this applies to all 2020 GMC Sierra vehicles. Defendant should be more specific in its response. If no recalls have been made with respect to the 2020 GMC Sierra, then it should clearly state this in a further response. The motion is granted as to RPD No. 35.

RPD No. 37 asks for all documents which evidence/describe sales brochures, literature, or any other promotional materials provided/distributed by Defendant regarding vehicles of the same year, make, and model as the subject vehicle. Defendant objected in a similar manner as above, and responded that it would comply in part by producing the Vehicle Product Brochure applicable to the subject vehicle. The Court overrules the objections as the documents sought only seek promotional material regarding the 2020 GMC Sierra. Defendant states that production will only be in part with the brochure, but Defendant has not shown how any of the publicly distributed promotional material would be irrelevant, protected by privilege, overbroad, etc. The request will be interpreted to request documents distributed to consumers, and with that limitation, the documents should be produced in full. The motion is granted as to RPD No. 37.

Plaintiff Fadi Khalil’s motion to compel Defendant’s further responses to the RPD is granted as to RPD Nos. 1-3, 5, 8, 11-12, 16-33, 35-37; and denied as to Nos. 9 and 34. As stated more fully in the Court’s written order, the parties are ordered to meet and confer about entering into a protective order. Defendant is ordered to provide further responses to the discovery requests within 20 days of entering the protective order.
Plaintiff shall provide notice of this order

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[1] Plaintiff reserved this motion as a “Motion to Compel.” In the future, Plaintiff should reserve a motion to compel further with the correct designation.

Superior Court of California

County of Los Angeles

Department B