Judge: Michael Shultz, Case: 21CMCV00285, Date: 2022-09-15 Tentative Ruling
Case Number: 21CMCV00285 Hearing Date: September 15, 2022 Dept: A
21CMCV00285
Augusto Barco-Robledo v. General Motors
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that
Plaintiff purchased a vehicle made and distributed by Defendant. The vehicle developed
widespread defects that Defendant failed to repair within a reasonable number
of attempts and refused to repurchase the vehicle. Plaintiff alleges violations
of the Song-Beverly Consumer Warranty Act.
II.
ARGUMENTS
Plaintiff requests an order to
compel Defendant to respond to document requests. The requests fall into two
general categories (1) documents relating to
Defendant’s internal investigations and analyses of the evaporative emissions
(“EVAP”) defect (Requests 16-21, 60; and (2) documents relating to Defendant’s
warranty and vehicle repurchase policies, procedures, and practices (Requests 35-40,
43, and 51).
The parties participated in an
informal discovery conference with the Hon. Thomas Long on May 20, 2022. The
parties stipulated to file a joint memorandum. Pursuant to the Joint Discovery
Dispute Statement filed on September 6, 2022, Defendant objects to the
discovery at issue and refused to produce documents on grounds the that the
requests are vague and ambiguous, overbroad, seeks irrelevant documents, are
burdensome and oppressive, and seeks confidential, proprietary, and
trade-secret information, and seeks documents protected by the attorney-client
privilege and work-product doctrine.
III. DISCUSSION
A motion to compel further
responses to requests for production of documents is proper where Plaintiff
believes the statement of compliance is incomplete, a representation of
inability to comply is inadequate, incomplete, or evasive and/or an objection
in the response is without merit or too general. Code Civ. Proc., §2031.310. The parties have
met and conferred informally and with the court without resolution.
The scope of discovery is
liberally construed in favor of disclosure “as a matter of right unless
statutory or public policy considerations clearly prohibit it.” Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 377-378. The broad scope of permissible
discovery includes “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.
To prevail on a claim for
violation of the Song-Beverly Consumer Warranty Act (“the Act”) Plaintiff’s burden
is to establish that “(1) the vehicle had a nonconformity covered by the
express warranty that substantially impaired the use, value or safety of the
vehicle (the nonconformity element); (2) the vehicle was presented to an
authorized representative of the manufacturer of the vehicle for repair (the
presentation element); and (3) the manufacturer or his representative did not
repair the nonconformity after a reasonable number of repair attempts (the
failure to repair element). " Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.
The Act requires that "the
manufacturer maintain or designate and authorize service and repair facilities
in the state Civ. Code, § 1793.2, subd.
(a)(1)(A)); i.e., usually, automobile dealerships with service departments
thereby making a manufacturer capable of becoming aware of every failed repair
attempt.” Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 303. Therefore, Defendant’s prior
knowledge of the alleged defects in the subject vehicle and in vehicles of the
same year, make, and model and Defendant’s attempts to comply with its
statutory obligations to repair and/or replace are relevant.
In response to the discovery
request, Defendant is obligated to make affirmative representations of whether
the specific documents requested exist, that a diligent search and inquiry was
made and what if any documents were withheld as specifically identified in a
privilege log. Defendant is further obligated to explain any inability to
comply. 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, 2031.240.
Requests Nos. 16-21, 60
Plaintiff generally characterizes
this category as documents relating to Defendant’s internal investigations and
analyses of the evaporative emissions (“EVAP”) defect for the subject vehicle,
a 2019 Chevrolet Traverse, and vehicles of the same year, make, and model. The
scope of documents extending to vehicles of the same make and model (“other
vehicle evidence”) is relevant because Plaintiff must establish Defendant’s
knowledge of the defect in the same vehicle. The Act requires the manufacturer to
designate service and repair facilities throughout the state which enable the
manufacturer to become aware of every failed repair attempt. Krotin 38 Cal.App.4th at 303. Donlen v. Ford Motor Co. (2013) 217 C al.App.4th 138, 154 [Testimony about a
defective transmission installed in plaintiff’s truck and other trucks and what
the manufacturer did to notify dealers and technicians about problems with this
transmission model was “certainly probative and not unduly prejudicial."].
In determining whether a violation
of the Act occurred, the jury can consider whether “(1) the manufacturer knew
the vehicle had not been repaired within a reasonable period or after a
reasonable number of attempts, and (2) whether the manufacturer had a written
policy on the requirement to repair or replace. (Id. at pp. 185-186.)” ” Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.
Defendant’s objections are without
merit. Defendant has not established that compliance with the request will be
unreasonably burdensome and oppressive. Defendant’s remedy is to move for a protective
order, not refuse to respond or unilaterally impose limitations on Plaintiff’s
discovery. To support an objection of oppression, there must be some showing by
the opposing party 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. Oppression must not be equated with
burden; “[t]he objection based upon burden must be sustained by evidence
showing the quantum of work required, … .” Id. Defendant has not met its
burden.
Defendant
refuses to produce documents that it determines constitute trade secret or
proprietary information or is protected by the attorney-client privilege. Defendant is required to provide a privilege
log of all the documents subject to a privilege so that the court can determine
whether any privilege applies. Code Civ. Proc., § 2031.240 subp. (b). The
privilege log must contain clear descriptions of the documents as set forth in
the statute.
Requests Nos. 35-40, 43, and 51
Plaintiff generally categorizes
these requests as documents relating to Defendant’s warranty and vehicle
repurchase policies, procedures, and practices in vehicles of the same year,
make, and model. The request is relevant to Plaintiff’s allegation that
Defendant was aware of the defect and was unable to service the vehicle to
conform to express warranties after a reasonable number of attempts. The
request is not vague or ambiguous as Defendant contends. Nor is it improper for
Plaintiff to “assume” that there are alleged defects; this is Plaintiff’s
central allegation. Defendant’s identical objections on grounds the requests are
burdensome or oppressive, or subject to a privilege are not established.
Defendant’s repurchase policies
and procedures are equally relevant to Plaintiff’s burden of establishing
Defendant’s non-compliance with its obligations under the Act to reasonably
attempt to repair the vehicle. Oregel at 1101. This is relevant to the recovery
of civil penalties if the buyer can show that “the manufacturer's failure to
comply was willful. The penalty is important ‘as a deterrent to deliberate
violations. Without such a provision, a seller or manufacturer who knew the
consumer was entitled to a refund or replacement might nevertheless be tempted
to refuse compliance in the hope the consumer would not persist, secure in the
knowledge its liability was limited to refund or replacement.’” Jensen at 136.
IV.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Compel Further
Responses to Request for Production of Documents is GRANTED. Defendant is
ordered to serve verified, code-compliant responses and production of documents
within 10 calendar days of the court’s order. Where applicable, Defendant is
ordered to provide a privilege log in the form set forth in Code of Civil
Procedure section 2031.240 subp. (b). Plaintiff
did not request imposition of sanctions.