Judge: Michael E. Whitaker, Case: 22SMCV02552, Date: 2023-08-22 Tentative Ruling

Case Number: 22SMCV02552    Hearing Date: August 22, 2023    Dept: 207

TENTATIVE RULING

Plaintiff Adolfo De Leon Torres (“Plaintiff”) alleges that he purchased a 2017 GMC Sierra 1500 in October 2017 with an express warranty accompanying the purchase of the subject vehicle.  (Complaint, ¶¶ 13-14.)  Thereafter, Plaintiff alleges that the subject vehicle had defects related to the transmission and transmission, and he delivered the subject vehicle to Defendant General Motors (“Defendant”).  (Complaint, ¶¶ 15-17.)  But Defendant was unable to cure the alleged defect.  (Complaint, ¶ 18.)  Accordingly, Plaintiff contends that under the Song-Beverly Act, Defendant had the statutory duty to either repurchase or replace the subject vehicle, yet Defendant did not do so.  (Complaint, ¶¶ 19-21.) 

Plaintiff moves the Court for orders compelling Defendant to serve further responses to the following discovery request: 

1.      Requests For Production of Documents (“RFP”), Set 1, Propounded to Defendant

·         Propounded:                                              February 14, 2023

·         Responses Served:                                    March 20, 2023

·         Motion Filed:                                            June 8, 2023

Defendant opposes the motion; Plaintiff replies to the opposition. 

Procedural Requirements

1.      Timeliness of Motion

            A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which” the parties have agreed in writing.  (Code Civ. Proc., § 2031.310, subd. (c).)  Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to demands for production of documents.  (Ibid.)

Here, Plaintiff filed the motion on the date set forth above.  Defendant has not objected to the timeliness of the motion. 

2.      Meet and Confer

            A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., § 2031.310, subd. (b)(2).)  A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.) 

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend, supra, 61 Cal.App.4th at p. 1438.)

            To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.)  In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration of Nicholas J. Tomic, counsel for Plaintiff, the Court finds that Plaintiff has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.  (See Declaration of Phil A. Thomas, ¶¶ 10-21,  Exhibits D-H.)

            Counsel for Defendant, Arash Yaraghchian, filed a declaration contesting in part Plaintiff’s meet and confer efforts.  (See Declaration of Arash Yaraghchian, ¶¶ 4-6, Exhibits D-F.)  However, counsel’s statements do not establish that Plaintiff failed to comply with his obligations under the Discovery Act.  Instead, the Court finds that Plaintiff’s efforts met the minimum standards under the circumstances.     

3.      Separate Statement

            California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted. 

            Here, Plaintiff has filed a separate statement related to the motion which complies with Rule 3.1345.

Analysis

1.      DISCOVERY – GENERAL PRINCIPLES

            “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ. Proc., § 2017.010.) 

            “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

            Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

            With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:  (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.  (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.  (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).)  “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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (Code Civ. Proc., § 2031.230.)

a.      BURDENSOME

            “The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.”  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)  The California Supreme Court further noted that  “[s]ome burden is inherent in all demands for discovery.  The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.)  

            With respect to the burdensome objection, the Court finds that Defendant has failed to provide sufficient, competent evidence to establish the quantum of work required.  As such, without the requisite proof, Defendant cannot forestall the production of responsive discovery based upon a burdensome objection. 

b.      TRADE SECRETS

            “If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.”  (Evid. Code, § 1060.)  The Trade Secrets Privilege “[i]s granted so that secret information essential to the continued operation of a business or industry may be afforded some measure of protection against unnecessary disclosure. Thus, the privilege prevents the use of the witness' duty to testify as the means for injuring an otherwise profitable business where more important interests will not be jeopardized.  . . .  Therefore, the privilege exists under this section only if its application will not tend to conceal fraud or otherwise work injustice.”  (Cal. Law. Revision Com. com., West’s Ann. Evid. Code foll. § 1060.) 

            “[A] court is required to order disclosure of a trade secret unless, after balancing the interests of both sides, it concludes that under the particular circumstances of the case, no fraud or injustice would result from denying disclosure. What is more, in the balancing process the court must necessarily consider the protection afforded the holder of the privilege by a protective order as well as any less intrusive alternatives to disclosure proposed by the parties.”  (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393 (hereafter Bridgestone).)  In Bridgestone, Lydia Rios was killed in an auto accident allegedly caused by the failure of a tire.  Plaintiffs, the survivors, sought in discovery manufacturing specifications for the tire involved in the accident and other tires of the same type and size.  The defendant, Bridgestone/Firestone, objected to the discovery requests on the grounds that the production of the information would disclose its trade secrets.  In reversing the trial court in favor of Bridgestone, the appellate court held: 

[T]he party claiming the privilege has the burden of establishing its existence. Thereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.

(Bridgestone, supra, 7 Cal.App.4th at p. 1393 [cleaned up].) 

            Here, Defendant advances the Declaration of Huizhen Lu (“Lu”), a Senior Manager/Senior Technical Consultant of Engineering Analysis for General Motors.  In part, Lu states:  “I am familiar with the categories of documents that may be produced and I am familiar with the nature of these documents and the way that GM LLC handles this type of information.  The category of documents may include specifications, test reports, meeting minutes, policy/decision makes processes and production investigation/evaluation materials.  These documents, generally, may pertain to the following among other items.”  (Declaration of Huizhen Lu, ¶ 14.)  Lu then states from paragraphs 15 through 38 how Defendant’s trade secrets may be impacted if responsive documents are produced.  However, Lu’s statements are generic in nature and not tied specifically to Plaintiff’s RFP.  Lu also does not specifically state that responsive documents exist, the nature of such documents, and why such documents may, if disclosed, impact Defendant’s trade secrets.  Moreover, Defendant has not  demonstrated any claimed disadvantages of a protective order to mitigate any negative fallout from the production of responsive documents to Plaintiff, notwithstanding the trade secrets privilege.

            Consequently, the Court finds that Defendant has not established the existence of the trade secrets privilege. 

c.       ATTORNEY CLIENT PRIVILEGE

            Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”  (Evid. Code, § 954.)  And “while attorney-client communications are presumed to be confidential, the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.”  (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533 [cleaned up].)

            Moreover, “[i]t has long been recognized that communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.”  (Scripps Health v. Superior Court, supra, 109 Cal.App.4th at p. 535; see also Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424; Travelers Ins. Cos. v. Superior Court (1983) 143 Cal.App.3d 436.) 

d.      ATTORNEY WORK PRODUCT DOCTRINE

            The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

It is the policy of the state to do both of the following:

(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

(See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted (hereafter Coito).)

            In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.”  (Coito, supra, 54 Cal.4th at p. 485.)  With respect to both items, the Coito court opined:

[W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney's impressions, conclusions, opinions, or legal research or theories.  If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).

(Id. at p. 486 [cleaned up].)   Attorneys are the holders of the “work product privilege.”  (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].) 

            Defendant has the initial burden to establish that documents responsive to the RFP are in fact privileged or the work product of its counsel, warranting protection from disclosure.  Yet, Defendant has not produced a privilege log which would identify any responsive documents being withheld because of the attorney-client privilege or attorney-work product doctrine.    Equally important, in opposition to the motion, Defendant has failed to proffer sufficient, competent evidence to establish that either the attorney work product doctrine or attorney-client privilege thwarts Plaintiff’s efforts to obtain documents responsive to the RFP. 

            In short, the Court finds that Defendant’s objections on the grounds of burdensome, trade secrets privilege, attorney-client privilege and attorney work product doctrine are unsubstantiated.  Nevertheless, turning to the issue of whether Defendant has provided code compliant responses to the RFP base upon Defendant’s other objections, the Court rules as follows:

2.      RULINGS

·         RFP No. 16: GRANTED

·          

·         RFP No. 19: DENIED – Too General.

·         RFP No. 20:  GRANTED.

·         RFP No. 21:  GRANTED.

·         RFP No. 22:  DENIED - Irrelevant to the subject matter of the action.

·         RFP No. 23:  DENIED - Irrelevant to the subject matter of the action.

·         RFP No. 24:  GRANTED.

·         RFP No. 25:  DENIED – Too General.

·         RFP No. 26:  DENIED – Too General.

·         RFP No. 27:  DENIED – Too General.

·         RFP No. 28:  DENIED – Too General.

·         RFP No. 29:  DENIED – Too General.

·         RFP No. 30:  DENIED – Too General.

·         RFP No. 31:  GRANTED.

·         RFP No. 32:  GRANTED.

·         RFP No. 37:  DENIED – Vague as to the term “OBDII Code”

·         RFP No. 38:  DENIED – Vague as to the term “vehicle symptom codes”

·         RFP No. 39:  DENIED – Vague as to the term “vehicle component repair codes”

·         RFP No. 40:  DENIED – Vague as to the term “customer complaint codes” and overbroad (not narrowly tailored to the same make/model/year as the subject vehicle).

·         RFP No. 41:  DENIED – Vague as to the term “operation codes” and overbroad (not narrowly tailored to the same make/model/year as the subject vehicle).

·         RFP No. 45:  DENIED – Overbroad (not narrowly tailored to the same make/model/year as the subject vehicle).

·         RFP No. 46:  DENIED – Overbroad (not narrowly tailored to the same make/model/year as the subject vehicle).

Sanctions

A trial court may sanction a party for engaging in the misuse of discovery, which includes:  failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

            In addition, Code of Civil Procedure section 2031.310, subdivision (h) provides: “”Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

            Here, Plaintiff seeks monetary sanctions in connection with the motion based upon Defendant’s failure to provide complete, substantive responses to the subject discovery request.  The Court finds Defendant’s failure, in part, to provide code compliant responses to be an abuse of the discovery process, warranting monetary sanctions.  Accordingly, the Court will impose monetary sanctions against Defendant, and counsel for Defendant, Erskine Law Group, APC, in the amount of $960.00 which represents two hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $450 per hour, plus the motion filing fee of $60.

CONCLUSION AND ORDERS

Therefore, the Court grants Plaintiff’s motion to compel further responses per Code of Civil Procedure section 2031.310, and orders Defendant to serve further verified and code compliant responses to the Requests for Production of Documents, Set 1, as noted above, within 20 days of notice of the Court’s orders.

Further, the Court orders Defendant, and counsel for Defendant, Erskine Law Group, APC, jointly and severally, to pay monetary sanctions in the amount of $960.00 to Plaintiff, by and through counsel for Plaintiff, within 20 days of notice of the Court’s orders. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.

DATED: August 22, 2023                                          ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court