Judge Ralph C. Hofer, Case Number: 23GDCV00475, Date: 2023-10-27 Tentative Ruling

Plaintiff Raul C. Quintero alleges that in August of 2022 plaintiff purchased a 2022 Chevrolet Silverado vehicle and received an express written warranty pursuant to which defendant General Motors, LLC undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance for a specified period of time.

Plaintiff alleges that after plaintiff took possession of the vehicle, and during the warranty period the vehicle contained or developed defects which substantially impair the use, safety, and value of the vehicle, including a defective electrical system, engine, fuel system ignition system, and connectivity system.

Plaintiff alleges plaintiff provided defendant and its representatives in this state with sufficient opportunity to service or repair the vehicle, but that defendant and its representatives were unable or failed to service or repair the vehicle within a reasonable number of attempts.

The complaint alleges five causes of action under the Song-Beverly Consumer Warranty Act, for Violation of Subdivision (d) of Civil Code section 1793.2, for Violation of Subdivision (b) of Civil Code section 1793.2, for Violation of Subdivision (a)(3) of Civil Code section 1793.2, for Breach of Express Warranty, and for Breach of Implied Warranty of Merchantability.

On October 27, 2023, the court heard a motion brought by plaintiff to compel further responses to plaintiff’s Requests for Production of Documents, Set One. The motion was denied without prejudice “pursuant to this Court’s Addendum to Case Management Conference Order (Song Beverly Litigation), signed and entered by the Court on January 24, 2023.” The parties were ordered to meet and confer concerning compliance with the Order. The minute order states, in pertinent part:

“The parties are ordered to meet and confer in good faith concerning compliance with the Order, and to serve any further discovery, and engage in any further discovery proceedings or motions in compliance with the Order, as well as with this minute order.

Plaintiff by this motion seeks to compel defendant to produce all internal analysis or investigation regarding defects alleged by plaintiff in vehicles for the same year, make, and model as the subject vehicle.

The parties were previously ordered to engage in further discovery, including the production of documents, in compliance with this court’s Addendum to Case Management Conference Order (Song Beverly Litigation), signed and entered by the Court on January 24, 2023.

Plaintiff relies on a portion of the “Song-Beverly Act Addendum” which is not included in the previous minute order, but which appears on the Department D website and provides, in pertinent part:

“When the Court is faced with a discovery dispute in a Song-Beverly case, the Court will usually order that the Plaintiff and Defendant provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side:…

2. Defendant shall produce any internal analysis or investigation regarding defects alleged in Plaintiff’s complaint in vehicles for the same year, make and model of the subject vehicle. This includes Recall Notices and Technical Service Bulletins. Defendant is not required to a search [sic] of emails.”

Plaintiff seeks to have defendant produce documents which include this internal analysis or investigation regarding defects alleged in his complaint in vehicles for the same year, make and model as the subject vehicle, and which would be responsive to several document requests formally propounded. The defects identified are the Electrical Defect and Engine Defect alleged in the complaint.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

Here, the requests are Requests Nos. 16, 19, 20, 21, 22, 25, 26 and 27, and seek electronically stored information and emails concerning internal analysis or investigation regarding the electrical defect in vehicles of the same year, make and model as the subject vehicle, customer complaints, claims, reported failures and warranty claims related to the electrical defect and defendant’s responses, ESI and email concerning failure rates due to the electrical defect and any fixes, as well as the same documents relating to the engine defect.

The motion in the notice of motion seeks as to each of these requests the documents limited to those identified in the Order, in effect, all internal analysis or investigation regarding defects alleged by Plaintiff in vehicles for the same year, make, and model as the subject vehicle, as to the Electrical Defect and as to the Engine Defect.

The responses to the subject Requests are some variations of a series of boilerplate objections, such as vague, ambiguous, improperly assuming there are allege defects, overbroad, not reasonably calculated to lead to the discovery of admissible evidence, and burdensome. Defendant also objects that this is a simple, individual lemon law case with limited issues, and whether plaintiff is entitled to relief is unrelated to the scope and breadth of the requests. Defendant also objects to the requests to the extent they seek confidential, proprietary and trade secret information, and seek information protected by the attorney client or work product privilege. The responses then state, “No documents will be produced.”

Plaintiff argues that these documents are discoverable because the court in its Order has authorized this discovery, and because the requested documents are indisputably relevant to plaintiff’s claims in this action that defendant possessed prior knowledge of the electrical defect and engine defect (through, for example, internal testing, bulletins issued to its dealers, and service campaigns), knew that plaintiff’s vehicle suffered from the defects, knew it could not repair plaintiff’s vehicle regardless of how many repair visits were made, willfully violated the Song-Beverly Act by refusing to repurchase the vehicle, and breached the implied warranty of -

This showing is sufficient to establish good cause for production, which the court has indicated in advance it would be likely to order, based on its assessment that such discovery, as limited by the Order, consisted of discoverable material in a Song-Beverly dispute.

Defendant in opposition appears to argue that responsive documents include proprietary information and should not be produced unless subject to a protective order. The court has reviewed the file in this matter and notes that the parties have entered into a Stipulation and Protective Order—Confidential Designation Only, which was signed and filed as an order of the court on July 24, 2023. The document production is subject to an already existing protective order, and this argument is simply a waste of time.

“5. The term “ELECTRICAL DEFECT” shall be understood to mean such defects which result in symptoms including, but not limited to: the rear view camera screen turning black and displaying a red triangle with an exclamation mark in it, required replacement of the rear view camera, the lane departure warning being inoperable, the collision detection being inoperable, required performance of cycling the fuse for the front view camera, required performance of camera relearn, the on board google maps feature intermittently being inoperable, required software update of the radio, the radio turning black, the instrument panel cluster (“IPC”) turning black, required performance of technical service bulletin (“TSB”) 19- NA-076, required performance of TSB PIT5912E, required performance of TSB 22-NA-142, and any other concern identified in the repair history for the subject 2022 Chevrolet Silverado 1500, Vehicle Identification Number 3GCUDFET9NG621459.

6. The term “ENGINE DEFECT” shall be understood to mean such defects which result in symptoms including, but not limited to: the vehicle using more fuel than normal, required reprogramming of the engine control module, required reset of the nitrogen oxide sensor, required reset of the nitrogen oxide catalytic converter, the vehicle not starting again after auto stop was engaged, the battery failing the load test, required replacement of the battery, performance of TSB 22-NA-243, and any other concern identified in the repair history for the subject 2022 Chevrolet Silverado 1500, Vehicle Identification Number 3GCUDFET9NG62145.

h. A list of or compilation of customer complaints in defendant's electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff, in vehicles purchased in California for the same year, make and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items.”

With respect to the argument that providing the subject documentation is overly broad as to information concerning other vehicles with similar problems, defendant argues these documents are absolutely irrelevant to this breach of warranty claim concerning this particular vehicle. As noted above, plaintiff argues that information concerning other vehicles, and what defendant knew about the defects in those vehicles, is directly relevant here to show whether the defects in plaintiff’s car were reparable, whether defendant willfully failed to repurchase the vehicle despite knowing from other complaints about other vehicles with similar defects that defendant could not repair the defects, and whether defendant sold plaintiff a vehicle with knowledge that it was defective.

Plaintiff relies on Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, in which the court of appeal found the trial court improperly had granted a motion for new trial in an action claiming violation of the Song-Beverly Act, finding that the trial court had properly denied a motion in limine to exclude evidence “of any vehicle other than plaintiff’s truck,” and noting that the evidence had included the opinions of an expert that the transmission in the vehicle was defective before the consumer purchased the truck, based on “the fact that Ford had issued a special service message to dealers” about a transmission problem prior to plaintiff’s purchase. Donlen, at 143-144. The court noted that the evidence had also included other notices to dealers and technical service bulletins issued after plaintiff had purchased the vehicle, and as late as about the time the warranty expired. Donlen, at 144.

Plaintiff also relies on Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, in which a consumer had brought an action for violation of the Song-Beverly Act, and the trial court had entered judgment on a jury verdict finding that the act unintentionally had been violated, but the court of appeal found that the trial court had abused its discretion in failing to impose terminating sanctions against defendant for violating discovery orders, in conduct characterized as stonewalling with respect to the production of “highly relevant documents.” Doppes, at 994. Those documents included:

“all documents relating to (1) customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor used on the Bentley Arnage; (3) all warranty repairs during the period of January 2002 to date of the Bentley Arnage related to the rust inhibitor used on the vehicle; (4) all customer complaints of a wax oil smell caused by the rust inhibitor on the 2002 Bentley Arnage; and (5) vehicle tests conducted on the 2002 model year Arnage to confirm whether there was a wax oil smell arising from the vehicle's rust inhibitor.”

Defendant also appears to argue that producing requested documents would be burdensome, requiring an inordinate amount of company worker time and an estimated year to comply. This argument appears directed primarily to the production of emails, which, as noted in the Order, will not be required. Moreover, defendant submits no evidence in support of this argument, such as a declaration explaining the process and burden. The topic is not mentioned in the declaration submitted with the opposition.

To the extent defendant makes an argument that some of the documents described may include Personally Identifiable Information, this information can be redacted by defendant prior to production.

As previously ordered in this court’s October 27, 2023 minute order, further responses must be verified and include statements of compliance of statements of inability to comply which fully comply with the Code.

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably 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.”

Defendant General Motors LLC is ordered to serve further verified responses to Plaintiff’s Request for Production of Documents, Set One, which fully provide the documentation which the Court has indicated would be ordered to be produced in connection with a Song-Beverly action such as this one pursuant to this Court’s Addendum to Case Management Conference Order (Song-Beverly Litigation), signed and entered by the Court on January 24, 2023. Specifically, the Order provides, at page 5:

“2. Defendant shall produce any internal analysis or investigation regarding defects alleged in Plaintiff’s complaint in vehicles for the same year, make and model of the subject vehicle. This includes Recall Notices and Technical Service Bulletins. Defendant is not required to a search of emails.”

Defendant is ordered to serve further verified responses, without objection, which fully comply with the Code, and to permit inspection and copying of all responsive documents, within ten days.

The defects will be as defined in the Requests for Production, Set One, at paragraphs 5 and 6, and to also include any “other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items.” [Addendum to Case Management Conference Order, para. 2 (h)].

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