Judge: Michael Shultz, Case: 21CMCV00174, Date: 2023-04-06 Tentative Ruling

Case Number: 21CMCV00174    Hearing Date: April 6, 2023    Dept: A

21CMCV00174 Nicolas Perez v. General Motors, LLC

Thursday, April 6, 2023, at 8:30 a.m.

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANT’S COMPLAINCE WITH THE COURT’S DISCOVERY ORDER AND FOR PROSPECTIVE MONETARY SANCTIONS

I.        BACKGROUND

            Plaintiff alleges that Defendant issued an express warranty in connection with Plaintiff’s purchase of a 2019 Chevrolet Silverado. Plaintiff alleges that the vehicle developed defects in its transmission, braking, and mechanical systems which Defendant failed to remedy or repair in violation of the Song-Beverly Consumer Warranty Act.

            On February 22, 2022, the Hon. Thomas D. Long granted Plaintiff’s motion to compel Defendant’s further responses to Request for Production of Documents, Set One. Judge Long ordered Defendant to provide further, verified, and code-compliant responses without objection and a privilege log where applicable within 30 days. (Rivero Decl., Ex. 5). Plaintiff did not request imposition of sanctions, and none was awarded. (Id.)

II.      ARGUMENTS

            Plaintiff argues that while Defendant served supplemental responses and produced documents on March 23, 2022, Defendant failed to produce requested documents in response to certain categories. Plaintiff asks the Court to compel further production within 10 days and to impose sanctions of $500 per day that Defendant fails to comply thereafter.

            Defendant argues that the motion is moot since it complied with Judge Long’s order and provided additional documents. Imposition of sanctions is improper.

            In reply, Plaintiff argues that Defendant did not produce internal documents underlying its Technical Service Bulletins (TSB) or documents responsive to the request.    

III.    DISCUSSION

            If a party fails to obey an order compelling further response, "the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction," and either in lieu of, or in addition to a monetary sanction. (Code Civ. Proc., § 2031.310 subd. (1)).

A.      All the responses to the requests at issue (7, 10, 11, 12, 13, 14) are not code compliant.

      The statute requires a statement that the responding party will comply, that production will be allowed in whole or in part and affirm that all documents or things in Defendant’s possession, custody, or control will be included in the production. (Code Civ. Proc., § 2031.220). If Defendant is unable to comply, Defendant is required to "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 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).

            Defendant’s response, “complies in whole,” is ambiguous and does not include the affirmation. Defendant also incorporates the terms and conditions of a protective order. Judge Long’s order, however, did not rule that production would be subject to a protective order.

B.      The reference to producing “additional documents” is inconsistent with Defendant’s prior response refusing to produce documents at all. (Nos. 12, 13, 14).

            Defendant’s response is further muddled by its agreement to produce “additional” documents although its initial response contained only objections and that “[n]o documents will be produced” or that documents were “equally available.” (Plaintiff’s Sep. Stmt. 2:9-22, 10:4, filed 9/16/21.)

C.      The actual production is not responsive to the request. (Nos. 7, 10, 11, 12, 13, 14).

            Defendant provided manuals for periods other than what Plaintiff specifically requested (model year 2019 to the present). Defendant does not address why it produced manuals for model years 2008-2010, 2012, 2014-2015.

            While Defendant produced some Bates-stamped documents, Defendant did not provide the underlying investigative documents leading to each TSP. Defendant did not address this argument in its opposition. Defendant produced the same Bates-stamped documents in response to Nos. 10 and 11 each of which asks for discrete categories of documents (internal investigation versus decisions to issue notices, letters, TSBs, recalls or warranty extensions).

D.     Redactions were not permitted.

            Defendant impermissibly redacted what it did produce as Plaintiff outlined in his letter to Defendant. Rivero Decl. Ex. 7, (No. 7). There is no evidence that Defendant obtained a protective order permitting redaction.

E.      No objections were permitted. The Court required privilege logs where applicable.

            In response to No. 7, Defendant contends that the Song-Beverly Consumer Warranty Act is “entirely unrelated” to the request and the request seeks confidential information without providing a privilege log. Relevance objections were already dispensed with by Judge Long.

            F.   Imposition of sanctions are warranted.

            Plaintiff did not request sanctions in the first motion to compel further responses. Plaintiff asks for imposition of daily sanctions of $500 to encourage Defendant’s compliance. Sanctions should be “appropriate to the dereliction” and should be imposed “incrementally starting with monetary sanctions and ending with the ultimate sanction of termination.”

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604). The Court also has authority to impose a significant monetary penalty for each day that a party fails to comply with the Court’s order. (Id.at 605).

IV.     CONCLUSION

            The ambiguous, non-responsive, and evasive responses that also did not comply with the code supports a finding that Defendant willfully failed to comply with the Court’s order. Defendant has not shown substantial justification for its deficient responses, except to declare that Plaintiff’s motion is moot since supplemental responses were served. Accordingly, Plaintiff’s motion is GRANTED. Defendant has 10 days to provide code-compliant responses as originally ordered by Judge Long. The Court imposes a sanction of $500 for each day thereafter that Defendant fails to comply.