Judge Margaret L. Oldendorf, Case Number: 23AHCV00590, Date: 2023-12-14 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 23AHCV00590, Date: 2023-12-14 Tentative Ruling

Plaintiffs Kerra Houser and Theodore Houser (collectively Plaintiffs) purchased a new Chevrolet Silverado truck in January 2020. They sue General Motors (GM) for defects they allege they experienced with the vehicle. The pleading alleges that the vehicle had a defective transmission. The transmission in the vehicle is an 8-speed transmission, which was apparently created with the purpose of decreasing shift-response times and delivering smooth shift performance.

Plaintiffs allege that that the truck does not shift into park, and surges when idle and at a stop. Plaintiffs allege they took the vehicle to an authorized repair facility three times and were told that technicians repaired the issues.

The first amended complaint (FAC) alleges four Song-Beverly causes of action for breach of express and implied warranties. It also includes a cause of action for fraudulent concealment, and a claim for violation of the Magnusson-Moss Warranty Act. As to the cause of action for fraudulent concealment, Plaintiffs allege that GM knew of the transmission defect and failed to disclose it.

Plaintiffs filed the instant motion to compel further on September 6, 2023. Defendant GM filed an opposition on October 10, 2023. Plaintiffs filed a reply on October 19, 2023. Plaintiffs filed an “amended” notice of motion on November 3, 2023.

Counsel for Plaintiffs Rosario Stoliker declares that she initially tried to meet and confer with Counsel for Defendant GM to resolve the ESI (electronically stored information) issues presented by this motion. (Stoliker Decl. ¶ 28, referencing Exh. 7.) She sent a meet and confer letter on June 1, 2023. (Id.) GM’s counsel responded on June 12, 2023, stating that the discussion concerning ESI was premature. Stoliker then sent a meet and confer letter dated August 14, 2023 regarding GM’s initial responses to Requests for Production, Set One. (Stoliker Decl. ¶ 29, referencing Exh. 9.) Plaintiffs offered to stipulate to a protective order, and proposed specific ESI search terms. Defendant responded August 21, 2023. Stoliker declares that the parties were unable to reach a resolution after that. (Id. at ¶¶ 33, 34.)

A protective order was entered into, however, on September 6, 2023. Pursuant to the protective order, GM supplemented its initial response to the Requests for Production of Documents on September 20, 2023.

Neither the moving papers nor the reply (nor the amended notice of motion) address the sufficiency of the supplemental production. Therefore, the Court finds that Plaintiffs did not adequately meet and confer in good faith prior to proceeding with this motion.

A party responding to requests for inspection must either provide a statement of compliance, represent that it lacks the ability to comply, or object. (Code Civ. Proc. § 2031.210.)

- If a party responds with a statement of compliance, the statement must indicate whether production will be allowed in whole or in part and that all documents in the responding party’s possession, custody or control to which no objection is being made will be included in the production. (CCP § 2031.220.)

- If a party responds that a particular demand cannot be complied with it must include a representation that a diligent search and reasonable inquiry have been made and that the inability to comply is because the item has never existed, has been lost, stolen, or misplaced, or has never been in or is no longer in the responding party’s possession, custody, or control; such response must also identify the name and address of any person or entity known or believed to have possession, custody, or control of the item or category of item. (CCP § 2031.230.)

- If a response includes objections, a privilege log identifying documents being withheld must be provided. (CCP § 2031.240.)

When a party propounding demands for inspection deems responses to the responses to be incomplete or evasive, or deems objections to be without merit, the propounding party may move for an order compelling further response. Such motion must set forth facts showing good cause for the discovery, be accompanied by a meet and confer declaration, and include a separate statement. Such motion must also be made within 45 days of verified responses or supplemental responses, or on or before any specific later date the parties have agreed to in writing. (CCP § 2031.310(a)-(c).)

Code Civ. Proc. Section 2031.310(h) provides for the imposition of monetary sanctions against any party who unsuccessfully makes or opposes such a motion unless the court finds that the one subject to sanction acted with substantial justification, or that other circumstances make the imposition of sanctions unjust. (CCP § 2031.310(h).)

At issue in this motion are Plaintiffs’ Requests for Production of Documents, Set One, Nos. 1, 3, 7, 17, 23-25, 37-45, 50-53, 58, 59, 68, 76, 78, 79, 86, and 91-98.

As noted above, GM supplemented its initial response to the Requests for Production of Documents on September 20, 2023. The Court has been unable to determine from the moving and opposing papers which requests were supplemented (and therefore may now be acceptable to Plaintiffs), and which were not (and therefore remain in issue).[1] If all of the responses remain in issue (which the amended notice of motion suggests), then Plaintiffs were obligated to show that they engaged in further meet and confer with GM regarding the supplemental production.

Code of Civil Procedure section 2031.310, subdivision (h), requires the imposition of sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response unless the court finds the imposition of a sanction to be unjust or that the one subject to the sanction acted with substantial justification.

Plaintiffs request monetary sanctions of $3,160.00 against Defendant GM. Because the Court finds that Plaintiffs have failed to address the supplemental production in subsequent meet and confer discussions, the sanctions issue is moot.

For the foregoing reasons, Plaintiffs’ motion to compel further responses to their request for production of documents, set one is denied, as is their request for monetary sanctions.

[1] The only description of GM’s supplemental production served on September 20, 2023 is that “pursuant to the entry of the stipulated protective order, GM supplemented its document production and produced a high volume of responsive documents as described in GM’s memorandum of points and authorities” (Opposition p. 4: 20-25). An identical description is contained in GM’s counsel’s declaration (Yaraghchian Decl. paragraph 9). Plaintiffs do not reference the specific supplemental responses, either.