Judge: Peter A. Hernandez, Case: 22PSCV00835, Date: 2023-09-26 Tentative Ruling

Case Number: 22PSCV00835    Hearing Date: September 26, 2023    Dept: K

Plaintiff Albertina Acevedo’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set One is GRANTED in part (i.e., as to Requests Nos. 4, 8, 9, 11, 12, 17-26, 30-33 and 37), subject to the limitations set forth herein, and DENIED in part (i.e., as to Requests Nos. 1-4, 16, 27-29 and 34-36). Defendant is to provide further, Code-compliant responses within 20 days from the date of the notice of ruling.

Background   

Plaintiff Albertina Acevedo (“Plaintiff”) alleges as follows:

On November 23, 2020, Plaintiff purchased a 2021 Chevrolet Silverado, VIN #3GCPWDED9MG132613 (“subject vehicle”). General Motors LLC (“Defendant”) undertook to preserve or maintain the utility or performance of the subject vehicle via express warranties accompanying the sale of the subject vehicle. The subject vehicle suffers from engine, electrical and emission system defects which have not been adequately repaired.

On August 9, 2022, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-10 for:

1.                  Violation of Song-Beverly Act—Breach of Express Warranty

2.                  Violation of Song-Beverly Act—Breach of Implied Warranty

3.                  Violation of the Song-Beverly Act Section 1793.2

A Case Management Conference is set for September 26, 2023.

Legal Standard

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete[,] (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).)

A motion to compel further responses to a demand for inspection or production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4^th 92, 98.) 

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.310, subd. (c).)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)

Discussion

Plaintiff moves the court, pursuant to Code of Civil Procedure §§ 2031.310 and 2031.320, for an order striking Defendant’s objections and compelling Defendant’s further responses to Plaintiff’s Request for Production of Documents, Set One (i.e., Nos. 1-4, 8, 9, 11, 12 and 16-37).

Plaintiff’s counsel Nicholas Yowarski (“Yowarski”) represents as follows:

On September 23, 2022, Plaintiff propounded the subject discovery on Defendant. (Yowarski Decl., ¶ 14, Exh. 1.) On April 19, 2023, Defendant provided responses thereto. (Id., ¶¶ 15-16, Exh. 2.) On May 16, 2023, Defendant served verifications. (Id., ¶ 16.) On June 5, 2023, Yowarski sent Defendant’s counsel a meet and confer letter, requesting therein that Defendant’s counsel provide a written response thereto by June 12, 2023. (Id., ¶ 22, Exh. 3.) On June 12, 2023, Defendant’s counsel Jesse Valencia (“Valencia”) provided a response. (Id., ¶ 26, Exh. 4.) The instant motion followed on June 20, 2023.

Plaintiff represents that Nos. 1-4, 8, 9, 11 and 12 pertains to her own vehicle, that Nos. 16-31 pertain to Defendant’s warranty and repurchase policies, procedures and practices, and that Nos. 32-37 pertain to Defendant’s knowledge of the same or similar defects in other vehicles of the same year, make, and model as Plaintiff’s vehicle. The court addresses these categories as follows:

At the outset, the court notes that Yowarski’s June 5, 2023 meet and confer letter does not specifically reference Requests Nos. 1-3 and 16; accordingly, the motion is summarily denied in this regard for insufficient meet and confer. Additionally, Plaintiff’s separate statement fails to address Request No. 4; as such, the motion is summarily denied as to this request.

The court otherwise addresses the merits of the motion as follows:

Plaintiffs’ Vehicle (i.e., Requests Nos. 8, 9, 11 and 12)

Request No. 8 seeks all documents regarding repairs or service performed on the subject vehicle at any time and by any person.

Request No. 9 seeks all documents regarding Plaintiff’s request for refund of the price Plaintiff paid for the subject vehicle.

Request No. 11 seeks all documents regarding any CONTACT[1] between Plaintiff and Defendant.

Request No. 12 seeks all documents regarding any contract with any person and relating and referring to Plaintiff or the subject vehicle.

Defendant asserts that it has already produced documents in response to Requests Nos. 4, 8, 9, 11 and 12 and that “ordering [it] to produce more would be unnecessary.” (Opp., 4:18-19). Defendant’s “comply in part” response to Request Nos. 4, 8, 9, 11 and 12, however, reflect non-compliance with Code of Civil Procedure § 2031.210[2] and 2031.220[3]. Further responses are warranted.

Evaluation Discovery (i.e., Requests Nos. 17-31)

Request No. 17 seeks Defendant’s warranty claims policy and procedure manual(s) from 2010 to the present.

Request No. 18 seeks Defendant’s rules, policies, or procedures since 2010 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Song-Beverly Consumer Warranty Act.

Request No. 19 seeks procedures used by Defendant for the handling of complaints by consumers regarding vehicles Defendant manufactured or distributed.

Request No. 20 seeks Defendant’s policies, procedures, and/or instructions which Defendant’s employees and authorized agents should follow after a decision has been made by Defendant to authorize either a refund of the purchase price, or a replacement vehicle, to Defendant’s customer.

Request No. 21 seeks Defendant’s policies, procedures, and/or instructions since 2010 that Defendant’s employees and agents should follow when evaluating a customer request for their money back or a replacement of a motor vehicle manufactured or distributed by Defendant.

Request No. 22 seeks Defendant’s training materials related to Defendant’s policy regarding how to calculate a repurchase.

Request Nos. 23 seeks Defendant’s policies, procedures, or guidelines for determining whether a vehicle is eligible for a vehicle repurchase.

Request No. 24 seeks Defendant’s training material related to Defendant’s policy to encourage customers to give Defendant another opportunity to repair their vehicles.

Request No. 25 seeks Defendant’s policy defining what constitutes a repair to determine eligibility for repurchase or replacement in California.

Request No. 26 seeks Defendant’s policies, procedures and/or instructions since 2010 which Defendant’s authorized repair facilities should follow regarding customer requests for a refund of the price paid for a vehicle or a replacement vehicle.

Request No. 27 seeks Defendant’s Lemon Law Escalation Process.

Request No. 28 seeks Defendant’s call center escalation process.

Request No. 29 seeks any predictive model used to determine if one of Defendant’s vehicles is a candidate for escalation.

Request No. 30 seeks documents any CONSULTANT[4] provided Defendant from 2010 to present that are related in any way to the Song-Beverly Consumer Warranty Act.

Request No. 31 seeks Defendant’s policies, procedures, or guidelines provided to any agency regarding what constitutes a substantial nonconformity under the Song-Beverly Act from 2010 to present.

Defendant refused to produce any documents in response to Requests Nos. 17-31 on the basis that the requests were overbroad, unduly burdensome, oppressive, irrelevant, sought confidential, proprietary and trade secret information and sought information protected by the attorney-client privilege and/or work-product doctrine.

Defendant also refused to produce documents in response to many of the aforesaid requests on the basis that certain terms contained therein were vague and ambiguous. The court believes Defendant’s objection on this basis is well-taken as to Requests Nos. 27-29 (i.e., as to “Lemon Law Escalation Process,” “call center escalation process” and “candidate for escalation”, respectively) only. No further responses are warranted as to these requests.

The court agrees that the requests are overbroad as to time. Plaintiff purchased the subject vehicle on November 3, 2020. (Complaint, ¶ 3). The request, then, is limited in time from November 3, 2020 to August 9, 2022 (i.e., the date Plaintiff’ filed his complaint). The court also agrees that the requests are overbroad as to scope, inasmuch as it is not limited to the defects and vehicle type at issue for California consumers. The Song-Beverly Act and its lemon law provisions limits its application to goods sold in California and has certain provisions that afford protections greater than the requirements of the federal Magnuson Moss Act. (See Civil Code §§ 1792, 1792.1; Atkinson v. Elk Corp of Texas (2006) 142 Cal.App.4th 212, 231.) As the statute’s application to lemon law is for vehicles “sold in this state” such phrase is interpreted to restricting the scope to goods sold in California. (California State Electronic Ass’n v. Zeos Int’l Ltd. (1996) 41 Cal.App.4th 1270, 1277.)  The court determines that such a limitation is warranted.

Defendant claims that the requests are overly burdensome and not proportional to the needs of this matter. However, “[t]he objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing 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. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Defendant has not provided any such evidence. At any rate, the court determines that Defendant’s concerns of overbreadth and undue burden have been sufficiently addressed via the limitations imposed above.

Next, Defendant’s policies are relevant to a determination of Defendant’s good faith. (See e.g. Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105 (finding car manufacturer’s internal policy relevant to whether it evidenced an “unreasonable and not a good faith effort to honor its statutory obligations to repurchase defective cars.”).)  The documents are reasonably calculated to lead to the discovery of admissible evidence regarding whether Defendant knew of the defects at issue yet failed to repurchase the subject vehicle. In Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 143, the appellate court upheld a trial court’s determination that evidence of “the transmission model Ford installed in plaintiff’s truck and other vehicles” should not be excluded from trial as prejudicial in a Song–Beverly Act case brought by a single plaintiff.  (Id. at 154.)  Donlen thus provides a basis for permitting discovery to extend beyond Plaintiff’s specific vehicle.  A defendant’s knowledge of the defect is relevant to whether Defendant willfully violated the statute.  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 186 [“A decision made without the use of reasonably available information germane to that decision is not a reasonable, good faith decision.”].)

Defendant claims that documents Plaintiffs are seeking are confidential, proprietary, and commercially sensitive trade secrets. Objections based on confidentiality are not proper grounds for withholding responsive information. (See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We know of no case holding that this is a proper ground for objection to an otherwise proper interrogatory. Assuming that the information called for by this interrogatory is of a confidential nature which defendants do not want to have included in a public record, they presumably could have applied for a protective order. . .”].) Defendant did not seek a protective order. The court believes that any confidentiality concerns may be adequately safeguarded upon the parties’ entry into a protective order.

Finally, although Defendant interposed an objection on the basis of the attorney-client privilege and/or work-product doctrine, Defendant has not met its burden of justifying this objection. Any documents withheld from production on this basis must be accompanied by a privilege log.

Further responses to Nos. 17-26, 30 and 31 are warranted, subject to the limitations identified above.

Prior Knowledge Discovery (i.e., Requests Nos. 32-37)

Request No. 32 seeks documents evidencing statistics for the number of repurchases and replacements Defendant has made in California in response to consumers’ personal requests (i.e. a consumer request without an attorney) from 2010 to present.

Request No. 33 seeks documents evidencing the numbers of owners 2021 Chevrolet Silverado vehicles who have complained of any of the conditions, defects, or nonconformities for which Plaintiff presented the subject vehicle to Defendant or Defendant’s authorized repair facility for repair.

Request No. 34 seeks Technical Service Bulletins (“TSBs”) issued for 2021 Chevrolet Silverado vehicles.

Request Nos. 35 seeks Recalls which have been issued for 2021 Chevrolet Silverado vehicles that involve any part, component, sub-component, system, assembly, or sub-assembly for which the subject was subject to one or more repair attempts as reflected in Defendant’s Warranty Claim Records or in the repair orders produced during discovery in this case.

Request No. 36 seeks documents discussing above-average repair rates to 2021 Chevrolet Silverado vehicles.

Request No. 37 seeks sales brochures, literature or any other promotional materials provided or distributed by Defendant regarding vehicles of the same year, make, and model as the subject vehicle.

Defendant refused to produce any documents in response to Requests Nos. 32, 33 and 36 on the basis that the requests were overbroad, unduly burdensome, oppressive, vague and ambiguous irrelevant, sought confidential, proprietary and trade secret information and sought information protected by the attorney-client privilege and/or work-product doctrine.

The court believes Defendant’s vague and ambiguous objection is well-taken as to Request No. 36 (i.e., as to “above-average repair rates”) only. No further response is warranted as to this request.

The court agrees that the requests are overbroad as to time and scope and limits the requests in time from November 3, 2020 to August 9, 2022 and in scope to the defects and vehicle type at issue for California consumers. The court otherwise rejects Defendant’s objections, for the reasons set forth above. Further responses to Request Nos. 32 and 33 are warranted, subject to the limitations set forth above.

As to Request No. 34, Defendant agreed to provide a list of TSBs for vehicles of the same year, make and model as the subject vehicle and to search for, and produce, at Plaintiff’s request, copies of TSBs, if any, that Plaintiff has identified as relevant to the conditions alleged in Plaintiff’s complaint. The court determines that Defendant’s response is appropriate and that no further response is warranted.

As to No. 35, Defendant advised that “the SUBJECT VEHICLE has no current record of field actions, including recalls,” as shown in an image from the Global Warranty History Report. The court determines that Defendant’s response is appropriate and that no further response is warranted.

Defendant’s “comply in part” response to Request No. 37 reflects non-compliance with Code of Civil Procedure § 2031.210 and 2031.220; as such, a further response is warranted.

The motion, then, is granted in part (i.e., as to Requests Nos. 4, 8, 9, 11, 12, 17-26, 30-33 and 37), subject to the limitations set forth herein, and denied in part (i.e., as to Requests Nos. 1-4, 16, 27-29 and 34-36). Defendant is to provide further, Code-compliant responses within 20 days from the date of the notice of ruling.