Judge Kerry Bensinger, Case Number: 22STCV39714, Date: 2024-03-21 Tentative Ruling

MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE

On December 21, 2022, Plaintiff, David Aguilera, filed this lemon law action against Defendant, GM Motors, LLC, alleging causes of action for (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Act, (2) Breach of Express Warranty under the Song-Beverly Act, and (3) Fraudulent Concealment.

On February 20, 2024, Plaintiff filed this motion to compel Defendant’s further responses to Form Interrogatories, Set One, Nos. 12.1 and 15.1. Plaintiff does not request sanctions.

Under Code of Civil Procedure sections 2030.300, parties may move for a further response to interrogatories where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., § 2030.300, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2030.300, subd. (b)(1).)¿¿¿

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿

Unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory, demand for inspection, or request for admission.¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.290, subd. (c).)¿ Here, Defendant served unverified, objection-only responses to the at issue discovery requests. Therefore, the 45-day deadline was not triggered. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Further, there is no dispute over the timeliness of these motions. Accordingly, the court finds the motions are timely.¿ The court further finds that the Informal Discovery Conference (IDC) requirement has been satisfied. (See Minute Order (Informal Discovery Conference), 1/19/24.)

GM argues, however, the meet and confer requirement has not been satisfied. The court finds otherwise. Plaintiff attaches email correspondence showing multiple attempts to meet and confer with Defendant prior to the filing of this motion. (See Mot., Request for Production of Documents, Rabieian Decl., ¶¶ 20-23; Mot., Special Interrogatories, Rabieian Decl., ¶¶ 19-22.)

Section 2030.220(a) requires responses to each interrogatory “to the extent possible” which are “as complete and straightforward as the information reasonably available” to the responding party.¿ Section 2030.220 (c) states:¿ If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.¿¿ “The responding party must make a reasonable effort to obtain wherever information is sought; and if unable to do so, must specify why the information is unavailable and what efforts the responding party made to obtain it.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782; Weil & Brown, Cal. Civ. Proc. Before Trial (The Rutter Group 2023) ¶ 8:1061.)

Plaintiff seeks a further response to Form Interrogatory (“FROG”), Set One, Nos. 12.1 and 15.1. The court addresses each in turn.

FROG No. 12.1: State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

Defendant responded: “GM objects to this Interrogatory because the term “incident” is vague and ambiguous in the context of this lawsuit, which asserts breach of warranty claims based upon the performance of a specific vehicle over a period of time and not for a single, identifiable “incident.” GM also objects to this Interrogatory to the extent it calls for information protected by the attorney-client privilege and/or the work-product doctrine. (See Nacht & Lewis Arch. v. Sup. Ct. (1996) 47 Cal.App.4th 214.) GM also objects to this Interrogatory to the extent it seeks information equally available to Plaintiff as it is to GM.

Subject to and without waiving its Objections, GM answers as follows with respect to (a-d): Other than (i) Plaintiff, (ii) employees of the dealership(s) where Plaintiff’s vehicle was serviced, and (iii) GM call center advisors with whom Plaintiff may have communicated regarding the subject vehicle, GM is not aware of any other individuals who may have responsive information. Accordingly, and pursuant to California Civil Code § 2030.230, GM refers Plaintiff to the following documents, which GM is producing in response to Plaintiff’s Requests for Production, in which Plaintiff may identify for himself the individuals with the information he seeks: Any incidentally obtained repair orders regarding the SUBJECT VEHICLE; Service Request Activity Report(s); and the Global Warranty History Report.”

Defendant’s objections are not well-taken. Defendant identified the categories of relevant persons demonstrating the objection based vagueness and ambiguity lacks merit. Further, the interrogatory does not seek information protected by any privilege. To the extent that it does, Defendant must still identify the purportedly privileged information. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292.) Most importantly, the substantive responses are incomplete and not Code-compliant. Defendant cannot point to documents and ask Plaintiff to cull out the responsive information. A further response is warranted.

FROG No. 15.1: Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

Defendant responded: “GM’s investigation and discovery into this matter is ongoing. Indeed, it has not had an opportunity to depose Plaintiffs, or inspect the SUBJECT VEHICLE. Consequently, it is not possible at this time to state all facts upon which GM bases its denials and affirmative defenses, which GM asserted to preserve them. In addition, documents and the identities of persons with knowledge of facts supporting GM’s denials and affirmative defenses are not completely known at this time. Some of these witnesses may include experts. Answering further, GM intends to rely upon the documents it is producing in response to Plaintiffs’ Request for Production of Documents. GM reserves the right to supplement or amend this Response during the course of this proceeding.”

Defendant’s response is evasive and incomplete. Defendant must provide a response based on the knowledge it currently possesses and may reasonably obtain. If Defendant learns additional information, Defendant may amend its response at that time. A further response is warranted.

Defendant is ordered to provide further, verified responses to Form Interrogatories, Nos. 12.1 and 15.1 within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court