Judge: Michael Shultz, Case: 21CMCV00287, Date: 2022-08-04 Tentative Ruling
Case Number: 21CMCV00287 Hearing Date: August 4, 2022 Dept: A
21CMCV00287
Augusto Barco-Robledo v. General Motors, LLC
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that on
August 25, 2018, Plaintiff bought a Chevrolet Traverse, made or distributed by
Defendant, General Motors, LLC (“GM”). The vehicle developed engine defects
that substantially impaired the use, value, and safety of the vehicle and
failed to conform to express warranties. Defendant was unable to service or
repair the vehicle after a reasonable number of attempts. Plaintiff alleges four
causes of action for violations of the Song-Beverly Consumer Warranty Act and breach
of the express and implied warranty of merchantability.
II.
MOTION FILED JULY 7, 2022
Plaintiff requests an order to
compel Defendant’s further response to Request for Production of Documents, Set
One. Defendant served a response containing objections, none of which have
merit. The parties participated in an informal discovery conference (IDC) with
the court on May 20, 2022, but the issues were not resolved.
Plaintiff argues that the
documents at issue fall into two general categories with respect to the defect
in the Evaporative Emissions system (“EVAP”): (1) documents relating to GM’s
internal investigations and analyses of the defect, which will demonstrate GM’s
knowledge of the defect; and (2) warranty and repurchase policies, procedures,
and practices. Defendant’s objections to the discovery are without merit.
While the court ordered both
parties to prepare a joint statement of the discovery requests in dispute, the
contentions, and the points and authorities of each party. See Min. Ord.
of 5/20/22. The court’s file does not reflect that Defendant participated in
the joint statement. No opposition has been filed.
III.
LEGAL STANDARDS
A motion to compel further
responses to Request 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.
IV.
DISCUSSION
To prevail on a claim for violation of the Song-Beverly Consumer
Warranty Act (“the Act”) Plaintiff has the burden to prove 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,
Defendant is obligated to make affirmative representations of whether the
specific documents requested exist and that a diligent search and inquiry was
made and what if any documents were withheld as specifically identified in a
privilege log, 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, 2031.240.
Requests 16-21, 60 Further is response is warranted.
These documents relate to
Defendant’s internal investigations and analyses of the EVAP defect which will
establish that Defendant knew of the defect but refused to repurchase as
required by statute. The documents are relevant to establish Defendant’s
knowledge of the defects and whether it failed to comply with the Act. 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 v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112, 136.
To establish this violation, 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 at 136. Accordingly,
the internal analysis and investigative documents those are relevant and
discoverable on the issue of knowledge.
Defendant objects to the request
for documents relating to all vehicles of the same year, make, and model with
the same defect. The discovery is calculated to establish whether Defendant
knew of the defects and what Defendant did in response. The scope of documents
extending to defects occurring in other vehicles (“other vehicle evidence”) is
relevant because as stated previously, the Act requires the maker 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 Cal.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."].
Defendant imposes a limitation by withholding
production of documents that it unilaterally determines violates a trade secret
or proprietary information or is protected by the attorney-client privilege. Defendant is required to provide a privilege
log all the documents at issue so that the court can determine whether any
privilege applies. Code Civ. Proc., § 2031.240(b). The privilege log must
contain clear descriptions of the documents as set forth in the statute.
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 to avoid responding to 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.
Requests 35-40, 43, and 51 Further response is warranted. These documents relate to Defendant’s
warranty and vehicle repurchase policies, procedures, and practices including
how Defendant handles complaints, evaluates requests for refund, and the
training given to employees with respect to such procedures. None of
Defendant’s objections to these documents are meritorious for all the reasons
explained in the foregoing requests.
With respect to Defendant’s
training provided for its employees and Defendant’s procedures and policies when
responding to the public regarding lemon law complaints, the documents are
relevant to determine whether Defendant acted willfully or in good faith. Kwan
v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 185-186
["We agree a manufacturer who refused a refund or replacement on the
ground a reasonable number of repair attempts had not been made, without making
any effort to gather the available information on repair history, might well be
deemed to have acted willfully.”].
Evidence of internal policies that
“erect hidden obstacles to the ability of an unwary consumer to obtain redress
under the Act" is probative of the manufacturer’s willfulness in failing
to comply with its obligations under the Act. Oregel v. American Isuzu
Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105. The requested documents are
relevant to determine whether Defendant adheres to its obligations under the
Act in attempting receiving and responding requests for repair defects.
CONCLUSION
Accordingly,
Plaintiff’s motion is GRANTED. Defendant is ordered to provide verified and
code-compliant responses without objection within 10 days after the hearing.