Judge: Michael Shultz, Case: 22CMCV00311, Date: 2023-05-23 Tentative Ruling
Case Number: 22CMCV00311 Hearing Date: May 23, 2023 Dept: A
22CMCV00311
Benito Castaneda Rodriguez, et al. v. General Motors, LLC
[TENTATIVE] ORDER
GRANTING PLAINTIFFS’ MOTION TO COMPEL FURTHER DISCOVERY RESPONSES FROM
DEFENDANT, AND REQUEST FOR SANCTIONS
I.
BACKGROUND
Plaintiffs
allege that Defendant issued an express warranty in connection with Plaintiffs’
purchase of a 2018 Chevrolet Silverado 1500. Plaintiffs allege that the vehicle
developed defects in its transmission and electrical (among other) systems
which Defendant failed to remedy or repair in violation of the Song-Beverly
Consumer Warranty Act.
II.
ARGUMENTS
Plaintiffs
argue that Defendant refuses to provide code-compliant responses to a request
for production of documents served on Defendant. Defendant produced some
responsive documents consisting of 50 .pdf files that were not indexed and except
for being Bates stamped, did not reference the specific request to which
response was made. Objections are without merit. Plaintiffs ask for imposition
of sanctions.
In
opposition, Defendant contends that it has timely responded to all discovery
requests and produced documents. Plaintiffs do not need more documents. The
documents Plaintiffs request do not concern their Silverado. There is no basis
for imposition of sanctions.
In
reply, Plaintiffs contend that Defendant produced some responsive documents
after Plaintiffs signed Defendant’s protective order. However, the files are
not indexed, and Defendant did not serve supplemental responses identifying
which documents are responses to a particular 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)).
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”) Plaintiffs’
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.)
A.
Defendant’s “supplemental response” served subject to the
stipulated protective order is not code compliant. (Thomas Decl., Ex. H).
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 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).
Defendant’s “letter reply” of May 22, 2023, is not verified, and does not
comply with the foregoing requirements. (Thomas Decl., Ex. H.)
Defendant’s purported
document production, which Plaintiffs contend consisted of 50 .pdf files are
not produced in compliance with statute. (Thomas Decl. ¶ 16). Documents or categories produced "shall
be identified with the specific request number to which the documents respond.”
(Code Civ. Proc., § 2031.280 (a).
Defendant’s letter response does not comply with the foregoing.
B.
These specific requests seek relevant and
discoverable information, and Defendant’s responses are either non-compliant or
evasive.
Request #16
Defendant agreed to
produce its warranty and procedure manual. The response itself must be verified
and comply with the statutory requirements.
Request #17
Defendant contends
that its shop manuals are equally available to all parties. The statute
requires Defendant to produce responsive documents in its possession, custody,
or control. Defendant agreed to produce the shop manuals, but Defendant’s
letter reply is not code compliant.
Request #18
Plaintiffs requested
Defendant’s operative franchise agreement with the selling dealership. This is information
may bear on Defendant’s obligations with respect to its duty to repair, repurchase,
or repair. The request is not vague. GM responds by agreeing to produce a sales
and service agreement instead. Defendant is required to answer the question
asked and to verify whether such document exists. This statement is not code
compliant.
C. The remaining requests are relevant and
discoverable. Defendant has not met its burden of establishing that any of its
objections to all requests at issue has merit.
Request #19 -32: These documents
generally relate to Defendant’s policies and procedures with respect to claims
for repurchase or replacement.
Request #33, 36 – 41: Plaintiffs request technical and
informational service bulletins (TSBs and ISBs) and related code information issued
by Defendant for the same year, make, and model as Plaintiffs’ vehicle.
Defendant offered to provide a partial production of general TSBs and ISPs but
will only produce a “reasonable” number of documents if Plaintiffs can identify
conditions relevant to Plaintiffs’ complaint. The response is not code compliant,
improperly limits the requests without a court order, and avoids responding
directly to Plaintiffs’ request.
Requests #45-46:
The requests seek documented complaints
and warranty repairs made. The request is relevant to Plaintiffs’ allegation
that Defendant was aware of the defect and that it was unable to service or
repair the vehicle to conform to express warranties after a reasonable number
of attempts.
All requests at issue are not vague or
ambiguous as Defendant contends. To the
extent that Defendant objects to the production of “other vehicle evidence,”
the objection is without merit. The scope of documents extending to vehicles of
the same make and model is relevant because Plaintiffs must establish
Defendant’s knowledge of the transmission defect at issue in the same vehicle. 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
[“Computerized record keeping at dealership service depts could easily
facilitate this task…”; 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."].) Therefore,
Defendant’s 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.
The
extent of Defendant’s knowledge of the defect and an acknowledged failure to
repair it is 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.)
Defendant
has not established that complying with any of the foregoing requests 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
Plaintiffs’ 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.) The Lu declaration does not satisfy this
burden, mainly because it predates Plaintiff’s complaint.
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 or not any privilege applies. Code Civ. Proc., § 2031.240
subd. (b). The privilege log must contain clear descriptions of the documents
as set forth in the statute. Moreover, the evidence on which Defendant relies
to support its objections is not persuasive.
· Ex. A, B. Declaration of Arash Yaraghchian, Defendant’s counsel.
The transcript of proceedings before the Hon. Barbara A. Meiers in March of
2017 and before the Hon. Richard Fruin in September 2014 in another action are irrelevant.
· Ex. C. Declaration of
Huizhen Lu, Defendant’s Senior Technical Consultant. This is a generic declaration
previously produced by Defendant in opposition to discovery motions in other
lemon law cases. The Lu declaration provides generalized, conclusory statements
about purported trade secret and confidential information which “may” be
contained in the requested discovery, none of which is identified specifically
in a privilege log as required by statute. It is also dated October 25, 2018,
nearly four years before Plaintiffs filed this action on September 6, 2022.
Therefore, the declaration is not probative of any defect specifically at issue
in this action or the specific requests made by Plaintiffs.
E. Imposition of sanctions are warranted.
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). Defendant has not shown substantial justification for refusing
to comply with its discovery obligations, for which monetary sanctions are
warranted. (Code Civ. Proc., § 2031.310 (h).)
The Court finds
that a reduced rate of $300 per hour is reasonable for this discovery motion. A
total of six hours to prepare the motion, review Defendant’s opposition,
prepare a reply, and to appear at the hearing is reasonable. The Court imposes
awards total fees of $1,800 and costs of $60 incurred for the filing fee.
IV.
CONCLUSION
Based on the foregoing, Plaintiffs’
motion is GRANTED. Defendant is ordered to provide verified, code-compliant
responses as well as production of documents in the manner required by statute
within 10 days. If documents are withheld pursuant to a privilege, Defendant is
required to provide a code-compliant privilege log. The Court imposes sanctions
of $1860 against Defendant, General Motors, LLC, and its counsel, The Erskine
Law Group, PC, jointly and severally, to be paid to Plaintiffs within 10 days.