Judge: Michael Shultz, Case: 22CMCV00224, Date: 2023-08-22 Tentative Ruling
Case Number: 22CMCV00224 Hearing Date: August 22, 2023 Dept: A
22CMCV00224 Zachary
Jay Woody, II v. General Motors, LLC
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that
Plaintiff purchased a 2021 Chevrolet Corvette made and distributed by
Defendant. The vehicle suffered from widespread defects that Defendant failed
to repair within a reasonable number of attempts in violation of the
Song-Beverly Consumer Warranty Act.
II.
ARGUMENTS
Plaintiff requests an order to
compel Defendant to produce its person most qualified (“PMQ”) to testify on the
categories identified in Plaintiff’s Notice of Deposition and Demand to Produce
Documents served on August 24, 2022. Defendant objected twice with boilerplate
objections and subsequently agreed to produce a witness knowledgeable about limited
categories of inquiry. Plaintiff withdraws Category 4. The Court should impose
sanctions.
In opposition, Defendant states it
agreed to produce a witness on all categories pertinent to Plaintiff’s vehicle.
Many of the categories identified in the notice are irrelevant and/or
overbroad. Plaintiff did not meet and confer in good faith.
Plaintiff argues in reply that
Plaintiff has been attempting to schedule the deposition for an entire year.
III.
DISCUSSION
If a party fails to appear for a
deposition after service of a deposition notice, without having served a valid
objection, the party giving notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any
document or tangible thing described in the notice. (Code Civ. Proc., § 2025.450.) The moving
party must show good cause for the deposition and attempt to meet and confer. (Id.)
Plaintiff
has been attempting to take Defendant’s PMQ deposition since August 24, 2022. The
parties have met and conferred without success, which resulted in Plaintiff’s
withdrawal of Category 4. Plaintiff agreed to the limitations demanded by
Defendant of the remaining categories to facilitate the deposition’s setting,
but Defendant maintains its objections and intends to limit the testimony to
“relevant and non-privileged” aspects. (Sep. Stmt. .pdf p. 8:4-5) Defendant
otherwise refuses to produce a witness. (See Defendant’s Sep. Stmt. in
Opposition.)
Defendant
offers no substantive or persuasive argument for failing to produce its witness
even after Plaintiff agreed to the limited categories. Defendant has not supported
its contention that it is entitled to unilaterally limit Plaintiff’s inquiries
without moving for a protective order.
As
the Court has previously expressed in the same lemon law motions involving
General Motors, 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.)
All
categories remaining at issue request the production of a witness knowledge
about the vehicle at issue, Plaintiff’s communications regarding the vehicle,
the determination of whether the vehicle qualified for repurchase or
replacement, Plaintiff’s complaints of warranty nonconformity and a person knowledgeable
about Plaintiff’s vehicle. These categories of inquiry are relevant, not vague,
or ambiguous, or overbroad.
To
the extent Defendant objects to testimony concerning confidentiality, trade
secret, attorney-client privilege, work product, or any other privilege,
Defendant’s remedy is to object to the question, not limit testimony as it
deems appropriate.
None
of the objections made to all the remaining topics of inquiry and 22 categories
of requested documents have merit. Plaintiff is entitled to documents relating
to warranty and vehicle repurchase policies, procedures, and practices
including warranty and procedure manuals provided to authorized repair
facilities. Defendant objects to the request because Plaintiff did not limit it
to the subject vehicle at issue. However, 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 power train
defect in the same vehicle as stated previously. 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 v. Porsche Cars North
America, Inc. (1995) 38 Cal.App.4th 294, 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’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 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.)
Defendant
has not established that compliance with the document 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 constitutes 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 at issue and the specific objection 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.
Documents related to technical
service bulletins and recalls associated with the subject vehicle, policies and
procedures and training manuals for handling customer complaints provided to
employees, communications with authorized repair dealership about the subject
vehicle are all relevant to establish Defendant’s knowledge of the defects, and
whether it failed to comply with the Act. These categories are also 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 investigative documents are relevant and discoverable on the issue of
knowledge.
Documents concerning internal
analysis or investigation of the defect in vehicles of the same year, make, and
model is also relevant to establish Defendant’s awareness of the defect and whether
it was unable to service the vehicle to conform to express warranties after a
reasonable number of attempts.
Defendant objects to the extent
Plaintiff asks Defendant to respond on behalf of some other entity. The
response infers that Defendant limited its production to documents in its
possession only. However, the statute requires production of documents that are
in the possession, custody, or control of that party. Defendant is also
required to provide contact information of any organization believed to have
possession, custody, or control. (Code Civ. Proc., § 2031.230.) Defendant’s response is improperly limiting.
To the extent that Defendant
refers Plaintiff to documents previously produced, the response is improper. Plaintiff is entitled to a complete response in
the form required by statute. It is not proper to answer “by stating, ‘see my
deposition,’ ‘see my pleading,’ or ‘see the financial statement.’ Indeed, if a
question does require the responding party to make reference to a pleading or
document, the pleading or document should be identified and summarized so the
answer is fully responsive to the question.” (Deyo v. Kilbourne, (1978)
84 Cal. App. 3d 771, 783-784.)
Finally, Defendant’s request that the Court deny the
document request until Defendant can move for a protective order is DENIED. The
statute requires that a request for a protective order be made “promptly.” (Code
Civ. Proc. § 2031.060.) Defendant has delayed responding for one year.
Plaintiff is
entitled to an award of sanctions. The Court’s
file reflects that this is the 10th motion to compel General Motors
to either designate a person most qualified for deposition or produce documents
in response to a request in lemon law cases. It is inconceivable that Defendant
continues to be bewildered by terms adequately and repeatedly defined by a
plaintiff in identical or substantially identical discovery, or that Defendant
continues to assert that “other vehicle evidence” is irrelevant; the parties
are well versed on the Court’s position on the same issues. Defendant
repeatedly and improperly fails to serve a privilege log, maintains objections
without any supporting evidence, and repeatedly contends that Plaintiff is not
entitled to the same or substantially the same documents or deposition
testimony that have been established as relevant and discoverable. This conduct
unnecessarily burdens the Court and Plaintiff.
IV.
CONCLUSION
Based
on the foregoing, Plaintiff’s motion is GRANTED. Defendant is ordered to
produce a witness or witnesses qualified to testify on the topics identified (except
Category 4) in Plaintiff’s Notice of Deposition and to comply with the Demand
to Produce Documents at Deposition within 10 days without limitation or
condition. The Court finds that an hourly rate of $450 per hour is a reasonable
rate for preparing burdensome discovery motions of this kind. The Court finds
that five hours to prepare the motion and reply, and to appear at the hearing
is reasonable. Therefore, the Court imposes sanctions of $2,250 plus $61.65 in
costs against
Defendant, General Motors, LLC, and its counsel, Erskine Law Group, APC,
jointly and severally, who have not demonstrated substantial justification for
its conduct. (Code Civ. Proc., § 2025.480 (j).)