Judge: Malcolm Mackey, Case: 22STCV03061, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV03061    Hearing Date: January 4, 2023    Dept: 55

QUEZADA v. GENERAL MOTORS LLC                                   22STCV03061

Hearing Date:  1/4/22,  Dept. 55

#6:   MOTION TO COMPEL FURTHER DISCOVERY RESPONSES FROM DEFENDANT, AND REQUEST FOR SANCTIONS – FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS.

 

Notice:  Okay

Opposition

 

MP:  Plaintiffs

RP:  Defendant

 

 

Summary

 

On 1/25/22, plaintiffs ARIANA QUEZADA and OSCAR ANDRADE filed a Lemon Law Complaint, alleging that they purchased a 2016 Chevrolet Tahoe having still-unrepaired engine and brake defects, which vehicle was manufactured by Defendant General Motors, LLC.

 

 

MP Positions

 

Moving parties request an order compelling Defendant’s further document responses, and imposing monetary sanctions ($2,685.00), on grounds including the following:

·         Aside from asserting inappropriate objections, Defendant has failed to provide any substantive response to many of Plaintiffs’ requests.

·         Requests for Production Numbers 19 thru 29 seek documents related to GM’s general policies and procedures relied upon when handling vehicle repurchase or replacement requests and calculating repurchase offers.

·         Plaintiffs’ Requests seek documents related to Technical Service Bulletins (“TSBs”), recalls, other documents/internal codes generated or utilized by Defendant, and similar consumer complaints and repurchases of other 2016 Chevrolet Tahoe vehicles with the same or similar nonconformities.

·         Plaintiffs’ requests seek evidence of GM’s handling of similarly situated consumers’ complaints concerning the same problems, with the same year, make, and model of vehicle as the Plaintiffs’ vehicle:

o   Documents “evidencing complaints” by owners of the same year, make, and model as Plaintiffs’ vehicle, regarding any of the same complaints for which Plaintiff sought repair from GM. (RFP 45.)

o   Documents evidencing warranty repairs performed to the same year, make, and model as Plaintiffs’ vehicle, which involved repairs or replacements of any of the components that GM or its authorized repair facilities repaired or replaced in the Subject Vehicle. (RFP 46.)  Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 154;  Jose Santana v. FCA US LLC (2020) 56.Cal.App.5th 334, 347.

·         Defendant’s broad treatment and handling of other repurchases and similar complaints by owners of 2016 Chevrolet Tahoe vehicles is relevant to prove that Defendant had knowledge of widespread defects and non-conformities in other 2016 Chevrolet Tahoe vehicles.

·         Plaintiffs narrowed the scope of their Requests for Production of Documents by identifying a particular time period during which Plaintiffs experienced defects and non-conformities with the Subject Vehicle. Plaintiffs have further limited their Requests to include only TSBs, recalls, codes and other documents issued for the Subject Vehicle and documents evidencing problems and complaints similar to those experienced by Plaintiffs.

·         Plaintiffs requested specific documents, related to the same year, make, and model as the Subject Vehicle, such as technical service bulletins and recalls, documents showing warranty repairs and tracking of vehicles that experienced the same defects and nonconformities as the Subject Vehicle, documents evidencing the number of complaints, and complaints by owners about the same conditions, defects or nonconformities experienced by the Subject Vehicle.

·         The objections lack merit, including unsupported privilege objections.

·         The objections do not comply with the Discovery Act, including because documents subject to objections are not specified.

·         Defendant did not provide any supplemental discovery responses after meet-and-confer efforts.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         GM validly objected to specific requests to the extent they sought information (1) outside GM’s possession, custody, or control, (2) about vehicles or issues unrelated to Plaintiffs’ Tahoe (3) protected by the attorney-client privilege, work product doctrine, or Section 2034.010 et seq., of the Code of Civil Procedure, and/or (4) confidential, proprietary, or competitively sensitive in nature.

·         Some requested documents may contain such objectionable information.

·         GM produced all the documents listed in the Introduction to GM’s accompanying Memorandum.

·         GM already agreed —in its responses and letter— or will agree to produce: (i) the Standard Provisions of the General Motors Dealer Sales and Service Agreement that GM has with each of its authorized dealerships in response to Request for Production No. 18; (ii) its Warranty Policy & Procedure Manual and the policies and procedures used to evaluate lemon law claims and repurchase requests in response to Request for Production Nos. 19-29, upon entry of a protective order; (iii) a list of TSBs and copies of bulletins for any required field actions for Plaintiffs’ Tahoe in response to Request for Production Nos. 33-36; and (iv) other customer complaints within GM’s ESI database that are substantially similar to Plaintiffs’ complaint(s) concerning the alleged defects, for vehicles purchased in California of the same year, make, and model as the Subject Vehicle in response to Request for Production No. 45-46.

·         With regard to Request for Production Nos. 37-41, Plaintiffs seek documents “sufficient to identify” and “sufficient to show” various codes for vehicles of the same year, make, and model as Plaintiffs’ Tahoe. Such information is irrelevant.  Plaintiffs have asserted breach of warranty claims, not product liability claims.

·         Third-parties’ private information might be included in the requests.

·         Other trial court judges have denied similarly overbroad requests.

·         Rather than allowing GM the opportunity to respond to Plaintiff’s meet and confer letter, as GM indicated it would, Plaintiffs’ proceeded to file their motion            .

·         The motion is without merit and is yet another attempt for their counsel to bolster costs and attorneys’ fees.

 

 

Tentative Ruling

 

The motion is denied as to request numbers 45 and 46 and sanctions and is otherwise granted.

Defendant is to provide further responses within 30 days.

The Court concludes that requested documents including warranty repairs as to other customers’ complaints similar to those experienced by Plaintiffs, are not reasonably calculated to lead to admissible evidence.

Additionally, the Court determines that the defense objections were not supported by competent proof, such as attorney-client privilege, trade secrets and sensitive commercial information.  Instead, the opposing expert declaration of Huizhen Lu is generalized, sometimes equivocal, and dated 10/25/18 such that there is no way the declarant knows what documents the instant requests include as to this case filed years later in 2022.

The document responses must consist of:  1) an agreement to comply, stating whether the productions or inspection will be allowed “in whole or in part,” and that all documents or things in the possession, custody or control of the respondent, as to which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, or the designated timing is subject to objection);   2) a representation of inability to comply, with a specification of any person believed or known to have possession of documents;  or, 3) objections and specification of withheld documents.  CCP §§2031.210(a), 2031.220, 2031.270, 2031.280(b).  

“Even where a party deems a demand to be objectionable, he [she, or it] still must identify those items which fall into the category of item in the demand to which an objection is being made.”  Standon Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 901 n.3.

As for whether documentation from other car purchases, beyond Plaintiff’s, is discoverable, there is no governing California case on point. 

Plaintiffs typically rely on opinions that did not involve any issue about scope of discovery in automobile defect cases.  E.g.,  Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 346  (in support of punitive damages, based on concealment, plaintiffs needed evidence that, prior to purchase of the vehicle, the defendant manufacturer was aware of a defect it was either unwilling or unable to repair);   Doppes v. Bentley Motors, Inc.  (2009) 174 Cal.App.4th 967, 996  (“the trial court had to impose terminating sanctions once it was learned during trial that Bentley still had failed to comply with discovery orders and directives and Bentley's misuse of the discovery process was even worse than previously known.”);  Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 154 (“Ford asserts the trial court abused its discretion when it denied Ford's in limine motions to exclude evidence of other vehicles and of the nonwarranty repair. We have already concluded the court did not abuse its discretion….”). 

Another oft-cited opinion, while addressing penalties based upon evidence of automobile repair policies, did not address discovery, or plaintiff’s evidence of actual handling of other consumers’ individual complaints.  See  Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105  (“evidence would permit a jury to infer that Isuzu impedes and resists efforts by a consumer to force Isuzu to repurchase a defective car, regardless of the presence of an unrepairable defect, and that Isuzu's decision to reject Oregel's demand was made pursuant to Isuzu's policies rather than to its good faith and reasonable belief….”).

Plaintiffs sometimes cite an opinion inapplicable to discovery, which instead decided admissibility of former deposition testimony.  See  Berroteran v. Sup. Ct. (2019) 41 Cal. App. 5th 518, _, 254 Cal. Rptr. 3d 338, 353  (“the former testimony concerned Ford’s 6.0-liter diesel engine, policies and procedures for warranty claims,…  For all these reasons, the trial court abused its discretion in granting Ford’s motion to exclude the entire depositions ….”).

Similarly, defendants typically rely on an unhelpful opinion, which did not address whether discovery regarding other vehicles is proper, but distinguishably ruled that a plaintiff failed to show prejudice by not having such discovery available for trial.  See  MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal. App. 4th 1036, 1045  ("He also argues courts have found relevant discovery requests seeking a car manufacturer's warranty policies and procedures, policies on buyback requests, and other customer complaints. Yet he does not show that, in this case, had the trial court compelled responses to his requests or denied the protective order, it is reasonably probable the jury would have found Mercedes-Benz willfully failed to repurchase or replace his car.").  Another opinion involved trial, not discovery, and addressed no evidence of other customers, but did mention evidence types in relation to the plaintiff customer, only.  See  Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185, 186  (Civil Code Section 1794 civil penalty for a willful violation may be shown if, “evidence showed … [the manufacturer] failed to investigate the repair history of the car,” “if the manufacturer reasonably believed the product did conform to the warranty, or a reasonable number of repair attempts had not been made, or the buyer desired further repair rather than replacement or refund,” or, if there was a “lack of a written policy,” ).  [Emphases added.]

An opinion, addressing a judgment after a jury trial (although not discovery), indicates that proof as to manufacturer’s ongoing, general policies, as they affect other consumers, generally, can be relevant to support findings regarding penalties, as indicated by the following opinion excerpt:

Additionally, the jury could conclude that Isuzu's policy, which requires a part be replaced or adjusted before Isuzu deems it a repair attempt but excludes from repair attempts any visit during which a mechanic searches for but is unable to locate the source of the problem (see fn. 11, ante), is unreasonable and not a good faith effort to honor its statutory obligations to repurchase defective cars…. Finally, there was evidence that Isuzu adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act…. This latter evidence would permit a jury to infer that Isuzu impedes and resists efforts by a consumer to force Isuzu to repurchase a defective car, regardless of the presence of an unrepairable defect, and that Isuzu's decision to reject Oregel's demand was made pursuant to Isuzu's policies rather than to its  good faith and reasonable belief the car did not have an unrepairable defect covered by the warranty or that a reasonable number of attempts to effect a repair had not yet occurred.

Oregel v. Amer. Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105.  [Emphases added.]

Another opinion addressing penalties, sometimes cited by defendants, did not address whether policies or other purchases would be discoverable or admissible at trial  See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 186  (“MBNA was entitled to an instruction informing the jury its failure to refund or replace was not willful if it reasonably and in good faith believed the facts did not call for refund or replacement.”)

As for objections, “legislation amended subdivision (c)(1) of Code of Civil Procedure section 2031.240 to require the preparation of a privilege log ‘if necessary’ to ‘provide sufficient factual information for other parties to evaluate the merits’ of a claim of privilege or protected work product.”  Bank of Amer., N.A. v. Sup. Ct. (2013) 212 Cal.App.4th 1076, 1098.  Where a party serves a timely discovery response stating attorney-client or work-product objections, without a privilege log or facts justifying the objections, the appropriate procedure is to grant a motion to compel further responses having particularized identification of documents as to which the privilege is asserted, and the justifying facts.  Best Product, Inc. v. Sup. Ct. (2004) 119 Cal.App.4th 1181, 1188-89;  People ex rel. Lockyer v. Sup. Ct. (2004) 122 Cal.App.4th 1060, 1073-75 (“no obligation to produce a privilege log at all, unless ordered to do so by the court upon a motion by a party seeking such a document.”).

The party asserting trade-secret objections has the burden to establish their existence.   Bridgestone/Firestone, Inc. v. Sup. Ct. (1992) 7 Cal.App.4th 1384, 1390;  Civ. Pro. Before Trial (The Rutter Group 2022) §8:129.1.  Evidence Code Section 1061(b)(1) requires parties seeking protective orders in criminal cases to submit an affidavit based on personal knowledge listing qualifications to opine, identifying alleged trade secrets and documents disclosing trade secrets, and showing qualifications of trade secrets, and that section should be followed in a civil action.  Stadish v. Sup. Ct (1999) 71 Cal. App. 4th 1130, 1144-1145.

The party claiming a qualified privilege, such as confidential commercial information, has the burden to show that the information falls within the privilege.   Lipton v. Sup. Ct.  (1996) 48 Cal. App. 4th 1599, 1618-19 (addressing reinsurance discovery that may involve confidential commercial information about insurer financial condition).  Courts have limited discretion with regard to granting motions to compel sensitive commercial information over objections thereto.  Fireman's Fund Ins. Co. v. Sup. Ct. (1991) 233 Cal. App. 3d 1138, 1141 (court abused discretion in compelling responses that may contain sensitive commercial information, without first reviewing them in camera to ascertain relevance, and whether sensitive matter should be redacted).  But see Lipton v. Sup. Ct. (1996) 48 Cal. App. 4th 1599, 1618 n. 20 (citing Fireman's, supra, and declining to extend the statutory protection beyond confidential commercial information). 

“When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.”  Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431.  [Emphasis added.]   Motions to compel further responses may be denied as to item numbers that are partially overbroad, such as to those seeking some irrelevant information, and the Court has no obligation to modify them to make them entirely proper.  Deaile v. Gen. Tele. Co. of Cal. (1974) 40 Cal.App.3d 841, 850-53;  Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 789, superseded by statute on another ground as stated in  Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.  But see  Borse v. Sup. Ct. (1970) 7 Cal. App. 3d 286, 289 (court abused discretion by denying motion to compel oppressively over-broad interrogatories, instead of granting in part);  Alch v. Sup. Ct. (2008) 165 Cal.App.4th 1412, 1432 (whenever possible, judges should partially limit discovery, and consider each category of information separately, rather than outright deny it);  Perkins v. Sup. Ct.  (1981) 118 Cal.App.3d 761, 765 (as to overly broad interrogatories, a trial court erred in too severely restricting their scope, in compelling further responses to the interrogatories as modified).  

Further, a privacy objection is not ripe for adjudication before a court where there is no factual basis for ruling, such as respondents’ identifying the documents withheld in a privilege log or elsewhere. Connecticut Indem. Co. v. Sup. Ct. (2000) 23 Cal. 4th 807, 818.

Opposing party’s references to other trial court rulings are unpersuasive here.  Trial court rulings are not binding precedent.  E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.  Rulings in other trial court cases are irrelevant absent some additional showing like the elements of claim or issue preclusion.  Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448.

Finally, no sanctions are imposed, because there are some debatable discovery issues of first impression, such that there is substantial justification for some positions of each side.  Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58;  Civ. Pro. Before Trial (The Rutter Group 2022) §8:846.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.