Judge: Kenneth J. Medel, Case: 37-2022-00024130-CU-BC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2022-00024130-CU-BC-CTL ZARATE VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 05/05/2023

Plaintiffs' Motion to Compel Further Responses to Requests for Production of Documents is GRANTED in part and DENIED in part.

Preliminary Matters Plaintiffs' motion and separate statement were not signed by counsel (ROA 19, 22). (CCP § 128.7(a).) Because Defendant does not raise this issue and has addressed the motion on the merits, the Court has considered the unsigned papers.

Defendant cites to the declaration of Jesse Valencia. This declaration is not on file with the Court, because the declaration was rejected for failure to comply with the electronic filing requirements. (ROA 25.) The exhibits attached to the declaration were not text searchable. (CRC rules 2.256(b)(3), 3.1110(f); SDSC Form CIV-409.) No reply (due October 6, 2023) is on file with the Court.

Discussion This is a Song-Beverly Act case with three causes of action – breach of express warranty; breach of implied warranty; and violation of Civil Code section 1793.2(b) – related to a 2021 Chevrolet Silverado that Plaintiffs purchased on February 27, 2021. Plaintiffs allege the subject vehicle has serious defects and nonconformities 'including, but not limited to, engine, electrical, and emission system defects.' Plaintiffs served 150 discovery requests, including 37 Requests for Production of Documents. Defendant served responses and objections to Plaintiffs' RFPs, including Request Nos. 1-3, 5, 8-9, 11-12, and 16-37, which are the subject of this motion. Plaintiffs move to compel further production of documents as to these requests.

Request Nos. 1 and 2 seek all documents identified in Defendant's responses to Special Interrogatories and Form Interrogatories.

The Motion to Compel is GRANTED as to these requests.

Although Defendant responded that it 'will comply in whole' with these requests, Defendant's responses indicated it would produce 'non-privileged documents' to the extent they have not already been Calendar No.: Event ID:  TENTATIVE RULINGS

2971079  33 CASE NUMBER: CASE TITLE:  ZARATE VS GENERAL MOTORS LLC [IMAGED]  37-2022-00024130-CU-BC-CTL produced. Defendant did not raise objections to these requests based on privilege, and its responses did not identify the responsive documents to be produced. It is unclear whether Defendant has fully complied with these requests and produced all documents identified in its interrogatory responses, or has withheld documents on the grounds of privilege. (See CCP § 2031.240(a)['If only part of an item....is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category']). Further responses and document production are warranted to the extent necessary to confirm Defendant's compliance. If Defendant has withheld documents on the basis of privilege, a privilege log must be produced.

Request No. 3 seeks all documents which evidence, support, refer, or relate to each of Defendant's affirmative defenses.

The Motion to Compel is GRANTED as to this request.

Defendant's objections this request is vague or ambiguous and overbroad lack merit. Moreover, Defendant has not provided enough information to evaluate its objections based on the attorney-client privilege/work product doctrine. Defendant responded it would 'comply in part' with this request. Further code-compliant responses and document production are warranted. If Defendant has withheld documents on the basis of privilege, a privilege log must be produced.

Request Nos. 5 and 8 seek all documents which evidence, describe, refer, or relate to any inspection, repairs or service performed on the subject vehicle.

The Motion to Compel is GRANTED as to these requests.

Defendant's objections these requests are vague or ambiguous and overbroad lack merit. Defendant also objected to the extent the request seek documents outside of its possession, custody and control and noted that Defendant's authorized repair facility, not Defendant, serviced the subject vehicle.

However, discovery obligations require the production of documents generally within the possession, custody, or control of the responding party.

Defendant has not provided enough information to evaluate its objections based on the attorney-client privilege/work product doctrine. Defendant responded it would 'comply in part' with this request. Further code-compliant responses and document production are warranted. If Defendant has withheld documents on the basis of privilege, a privilege log must be produced.

Request No. 9 seeks all documents which evidence, refer, or relate to Plaintiff's request for refund of the price Plaintiff paid for the subject vehicle.

The Motion to Compel is GRANTED as to this request.

In response to this request, Defendant 'states it has no record of Plaintiffs making a pre-suit repurchase request regarding the SUBJECT VEHICLE. Therefore, no documents will be produced.' '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.' (CCP § 2031.230, emphasis added.) To the extent Defendant sought to represent it was unable to comply with this request, Defendant has not affirmed it made a diligent search and reasonable inquiry and has not provided the other information required by the Discovery Act. Further code-compliant responses are warranted.

Request Nos. 11 and 12 seek all documents which evidence, describe, refer, or relate to any contact between Defendant and Plaintiffs and between Defendant and any other person (other than Defendant's counsel), relating or referring to Plaintiffs or the subject vehicle.

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2971079  33 CASE NUMBER: CASE TITLE:  ZARATE VS GENERAL MOTORS LLC [IMAGED]  37-2022-00024130-CU-BC-CTL The Motion to Compel is GRANTED as to these requests.

Defendant's response indicated it would 'comply in part' to these requests by producing certain documents that 'identify the individuals, communications, and transactions, including dates and times, of which GM is familiar regarding the SUBJECT VEHICLE.' These responses and the documents produced are insufficient. Defendant must produce any documents referring to Plaintiffs or the subject vehicle, such as documents reflecting communications or reports shared with Defendant's employees or authorized dealership personnel regarding Plaintiff or the subject vehicle. If Defendant has withheld documents on the basis of privilege, a privilege log must be produced.

Request Nos. 16-31 seek documents regarding Defendant's training materials, policies, and procedures for handling warranty repairs, repurchase requests, and breach of warranty claims.

The Motion to Compel is GRANTED as to these requests, with modifications at set forth below.

The documents sought in these requests are relevant to Plaintiffs' claims, the issue of Defendant's compliance with the Song-Beverly Act, and the issue of civil penalties based on Defendant's willful violations of the Act. However, many of these requests are not limited in scope as to time. Where a time period is provided in these requests, the time period requested is overbroad (ex. 2010 to the present).

Plaintiffs' motion is granted as to these requests but limited to the period of 2020 to the present. These requests are further limited to documents concerning Plaintiffs' subject vehicle (a 2021 Chevrolet Silverado) or vehicles of the same year, make, and model as the subject vehicle.

Request No. 32 seeks all documents evidencing or describing statistics for the number of repurchases and replacements Defendant has made in California in response to consumers' requests without an attorney from 2010 to present.

The Motion to Compel is DENIED as to this request.

This request is overbroad as to time and subject matter and is unduly burdensome.

Request No. 33 seeks all documents which evidence or describe the numbers of owners of 2021 Chevrolet Silverado 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.

Similarly, Request Nos. 34 and 35 seek all documents which evidence, refer, or relate to all Technical Service Bulletins ('TSBs') and all Recalls which have been issued for 2021 Chevrolet Silverado vehicles.

The Motion to Compel is GRANTED as to these requests.

Defendant argues it has already produced documents responsive to Request Nos. 34 and 35 concerning the subject vehicle, and ordering Defendant to produce more documents would be unnecessary.

However, the scope of discovery not only includes Plaintiffs' vehicle, but also vehicles that are the same year, make, and model as the subject vehicle. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973 [trial court granted motion to compel production of all warranty complaints received on vehicle models for certain years]; see also Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152-53 [ruling evidence concerning the same make and model vehicle showing the same non-conformities as the subject vehicle evidenced the defendant failed to conform the subject vehicle to warranty].) Evidence of similar defects is relevant, and discoverable information regarding similar defects in other vehicles is the proper subject of an inquiry regarding a manufacturer's willful failure to repurchase a vehicle. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185- 186; see also Jensen v. BMW of North America, LLC (S.D. Cal. 2019) 328 F.R.D. 557, 562–563.) Accordingly, Calendar No.: Event ID:  TENTATIVE RULINGS

2971079  33 CASE NUMBER: CASE TITLE:  ZARATE VS GENERAL MOTORS LLC [IMAGED]  37-2022-00024130-CU-BC-CTL whether the same or similar defects were reported to Defendant in other cars of the same make, model, and year as the subject vehicle is relevant to whether Defendant knew that it would be unable to conform Plaintiffs' vehicle to warranty within reasonable number of repair attempts. (See Jensen, supra, 328 F.R.D. at pp. 562-563.) The documents sought are relevant to Defendant's knowledge of the similar defects, whether Defendant timely could conform the Subject Vehicle to warranty, and whether Defendant acted willfully.

Defendant also objects based upon 'trade secret.' However, Defendant has not established a 'trade secret' at issue. Under CUTSA, a 'Trade Secret' means 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. (Civil Code § 3426.1(d).) These elements have not been clearly established with respect to this discovery.

Finally, the Motion to Compel is DENIED as to Request Nos. 36-37. Although these requests were identified in Plaintiffs' notice of motion, Plaintiffs failed to address these requests in their separate statement. (See ROA 22, at pp. 145-151 [last request addressed is Request No. 35].) No sanctions have been requested and none are ordered.

Conclusion Further responses and documents as required above are to be served within 30 days of notice of this ruling.

The minute order will be the final ruling of the Court. Plaintiffs are ordered to serve written notice of ruling on all parties.

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