Judge: Ronald F. Frank, Case: 22TRCV00984, Date: 2023-08-11 Tentative Ruling


Case Number: 22TRCV00984    Hearing Date: March 22, 2024    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                 March 22, 2024

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CASE NUMBER:                   22TRCV00984

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CASE NAME:                        Gail Chelebian v. General Motors, LLC, et al.

 

MOVING PARTY:                Plaintiff, Gail Chelebian

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RESPONDING PARTY:       Defendant, General Motors, LLC

 

TRIAL DATE:                       June 2, 2025 

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MOTION:¿                              (1) Motion to Compel Defendant’s Compliance with the Court’s September 13, 2023 Discovery Order and Prospective Sanctions of $200 per day until Defendant Complies with the Court’s Prior Order

                                               

Tentative Rulings:                  (1) CONTINUED for further proof by GM of compliance with the Court’s Discovery Order half a year ago

                                               

 

 

I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On October 19, 2022, Gail Chelebian (“Plaintiff”) filed a complaint against General Motors LLC (“GM”). On January 12, 2023, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Violation of Subdivision(D) of Civil Code section 1793.2; (2) Violation of Subdivision(B) of Civil Code section 1793.2; (3) Violation of Subdivision (A)(3) of Civil Code Section 1793.2; (4) Breach of the Implied Warrant of Merchantability; ad (5) Fraudulent Inducement – Concealment. This action is based on the fact that on or about December 29, 2017, Plaintiff entered into a warranty contract regarding a 2017 Chevrolet Bolt EV, VIN 1G1FX6S0XH4189565 (the “Subject Vehicle” or “Bolt”). (See FAC, ¶ 6.)

 

Per the moving papers, on January 27, 2023, Plaintiff propounded Requests for Production of Documents, Set One, seeking documents relating to GM’s internal investigation and analysis, among other things, of what it refers to as the “Battery Defects.” Specifically, Plaintiff notes she requested that Defendant produce documents concerning: (A) The Subject Vehicle (i.e., RFP Nos. 1, 7); (B) GM’s Internal Knowledge and Investigation regarding the Battery Defects in 2017 Chevrolet Bolt EV Vehicles (i.e., RFP Nos. 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42); (C) Summaries, Memoranda, and Power Points regarding the Battery Defects in 2017 Chevrolet Bolt EV Vehicles (i.e., RFP Nos. 43, 44, 45); (D) Song Beverly Act and Buyback Policies and Procedures (i.e., RFP No. 58, 59, 68); (E) Communication With Governmental Agencies and Suppliers regarding the Battery Defects in 2017 Chevrolet Bolt EV Vehicles (i.e., RFP Nos. 76, 78, 79); (F) Dealer Agreements and GM’s Financial Documents (i.e., RFP Nos. 85); and (G) Other Documents Related To The Subject Vehicle’s Battery Defects (i.e., RFP Nos. 90, 91, 92, 93).

 

However, Plaintiff claims that GM responded insufficiently to the discovery requests by either: (1) completely refusing to produce any documents for an many categories of the requests (i.e., RFP Nos. 17, 23, 24, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45, 58, 59, 68, 76, 78, 79, 85, 90, 91, 92, 93) and (2) limiting the scope of discovery to include only the Subject Vehicle (i.e., RFP Nos. 1, 7, 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 58, 59, 68, 76, 78, 79, 90, 91, 92, and 93). As such, Plaintiff filed its Motion to Compel. Prior to the last hearing on this motion, the parties filed a joint statement noting that the remaining RFPs at issue were: 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 76, 78, 79, and 90.

 

On September 13, 2023, this Court GRANTED the Motion to Compel Further, in part, as to RFP Nos. 1, 7, 24-25, 42-45, 58-59, 68, 76, 78-79, and 90-93. This Court ordered compliance, verified responses, and production of documents, by November 6, 2023. The September 13 Order detailed what documents GM was required to produce as to these remaining categories.  Plaintiff asserts that GM did not comply with the Court’s order, and that Plaintiff cannot readily determine how to match the document production against the Request categories because GM did not so specify in its ultimately verified written response either before or after the November 6 deadline.

 

On November 6, 2023, GM served supplemental responses to RFP Nos. 1, 7, 24-25, 42-45, 58-59, 68, 76, 78-79, and 90-93. However, Plaintiff argues that Defendant’s document production remains deficient, non-Code compliant, and contrary to the Court’s September 13, 2023. As such, Plaintiff has brought this Motion to Compel Compliance with the Court’s Order.

 

B. Procedural¿¿¿ 

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            On January 30, 2024, Plaintiff filed this Motion to Compel Defendant’s Compliance with the Court’s September 13, 2023 Discovery Order. On February 26, 2024, Defendant filed this opposition.

 

            This motion was originally heard on March 8, 2024, which is when this Court continued the hearing to March 22, 2024, requiring defense counsel is to file a supplemental declaration responding to the tentative ruling on or before March 20, 2024. On March 14, 2024, Plaintiff filed a Supplemental Declaration of Ebony Randolph in support of the Motion to Compel Defendant’s Compliance with the Court’s September 13, 2023 Discovery Order. On March 20, 2024, Defendant filed the Declaration of Sandra Habib in response to this Court’s tentative ruling. GM did not file a response to Ms. Randolph’s declaration.

 

II. ANALYSIS¿¿ 

 

A.    Legal Standard

 

 A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411

 

B.    Discussion

 

In Defendant’s declaration of Sandra Habib, with respect to the Court’s question 1, she states that her office intended to serve the verifications timely, however, due to an “inadvertence” in her office they were unable to serve the verifications on time. (Declaration of Sandra Habib (“Habib Decl.”), ¶ 2.) No further information is provided as to what the inadvertence was, whether it was Ms. Habib, her client contact, or someone else who suffered from the inadvertence, etc.  In short, the Court finds this single sentence vague explanation unsatisfactory. There was a 3-day gap between the service of the November 6 written response and the service of the verifications, but the Court still does not know what happened.  The Court expects more information on this issue at the March 22 hearing or in a subsequent declaration.  So that GM appreciates the significance of the issue, there has been a clear failure to comply with a Court-imposed deadline, and judges take disobedience of an order very seriously.  A better explanation is required.

 

As to the second question raised in the Court’s March 8 prior ruling for this March 22 hearing, Ms. Habib states that with regard to why the Defendant’s responses do not use the phrase: “After reasonable search and diligent inquiry,” her Declaration states that this Court had already informed Ms. Ebony that the Code section did not require that a party shall use the language except for when no documents were being produced. However, she notes that GM’s position is that the language regarding reasonable search and diligent inquire was not necessary since its responses were not indicating a lack of responsiveness. Code Civ. Proc., § 2031.220 requires a party responding to an RFP to indicate that when it agrees to “comply with the particular demand [then the party] shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part.”  There is no statutory requirement that a producing party who agrees to comply must verify that it has done a search an inquiry; that requirement is implicit.  It is only when a party is not producing anything that the Discovery Act requires as follows: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.”  (Code Civ. Proc., § 2031.230.)  Of course, the person who verifies the written response can be deposed and questioned as to the completeness and comprehensiveness of the production or of the claimed inability to comply with a RFP category.

 

As to the Court’s third question in its March 8 ruling, Ms. Habib’s declaration states that GM produced the following technical documents: Bulletins/Recalls applicable to the SUBJECT VEHICLE (CHELEBIAN000000029 - CHELEBIAN000000036, CHELEBIAN000000073 - CHELEBIAN000000152, and CHELEBIAN000009640 - CHELEBIAN000009743); and specific TSBs (CHELEBIAN000009744 - CHELEBIAN000009775). Additionally, she states that a “court representative” from GM has verified this response.

 

As to question #4, RFPs Nos. 24 and 25, GM argues it has complied in whole and has produced documents in its possession, custody, or control responsive to both requests. Specifically, as to Request No. 24, GM argues that it has complied in whole and has produced documents in its possession, custody, or control responsive to this request, and refers Plaintiff to the following produced documents: the list of ISBs (CHELEBIAN000000037 - CHELEBIAN000000041) and the list of TSBs (CHELEBIAN000000042 - CHELEBIAN000000043) for vehicles of the same year, make and model as the SUBJECT VEHICLE; Bulletins/Recalls applicable to the SUBJECT VEHICLE (CHELEBIAN000000029 - CHELEBIAN000000036, CHELEBIAN000000073 - CHELEBIAN000000152, and CHELEBIAN000009640 - CHELEBIAN000009743); and specific TSBs (CHELEBIAN000009744 - CHELEBIAN000009775). Additionally, a court representative from GM has verified this response. Further, as to Request No. 25 GM argues that it has complied in whole and has produced documents in its possession, custody, or control responsive to this Request, and refers Plaintiff to the following produced documents: the list of ISBs (CHELEBIAN000000037 - CHELEBIAN000000041) and the list of TSBs (CHELEBIAN000000042 - CHELEBIAN000000043) for vehicles of the same year, make and model as the SUBJECT VEHICLE; Bulletins/Recalls applicable to the SUBJECT VEHICLE (CHELEBIAN000000029 - CHELEBIAN000000036, CHELEBIAN000000073 - CHELEBIAN000000152, and CHELEBIAN000009640 - CHELEBIAN000009743); and specific TSBs (CHELEBIAN000009744 - CHELEBIAN000009775). Additionally, a court representative from GM has verified this response.

 

Next, as to this Court’s fifth question, as to RFP NO. 76, Gm contends it has complied in whole and had produced documents in its possession, custody, or control responsive to this Request, and refers Plaintiff to the following produced documents: the list of ISBs (CHELEBIAN000000037 - CHELEBIAN000000041) and the list of TSBs (CHELEBIAN000000042 - CHELEBIAN000000043) for vehicles of the same year, make and model as the SUBJECT VEHICLE; Bulletins/Recalls applicable to the SUBJECT VEHICLE (CHELEBIAN000000029 - CHELEBIAN000000036, CHELEBIAN000000073 - CHELEBIAN000000152, and CHELEBIAN000009640 - CHELEBIAN000009743); and specific TSBs (CHELEBIAN000009744 - CHELEBIAN000009775). Additionally, a court representative from GM has verified this response. Additionally, as to RFP No. 79, GM asserts it has complied in whole and has produced documents in its possession, custody, or control responsive to this Request, and refers Plaintiff to the following produced documents: the list of ISBs (CHELEBIAN000000037 - CHELEBIAN000000041) and the list of TSBs (CHELEBIAN000000042 - CHELEBIAN000000043) for vehicles of the same year, make and model as the SUBJECT VEHICLE; Bulletins/Recalls applicable to the SUBJECT VEHICLE (CHELEBIAN000000029 - CHELEBIAN000000036, CHELEBIAN000000073 - CHELEBIAN000000152, and CHELEBIAN000009640 - CHELEBIAN000009743); and specific TSBs (CHELEBIAN000009744 - CHELEBIAN000009775). Additionally, a court representative from GM has verified this response.

 

Lastly, GM contends that this Court stated it was willing to excuse the three (3) day delay in GM providing verifications as long as GM agrees that they are barred from arguing or offering evidence later in the case that the November 9, 2023, verification did not apply to the Court-ordered supplemental response and documents produced on November 6th. GM asserts that it is agreeable to this.  But before the the Court excuses the delay, it was and still is expecting more of an explanation for the failure to provide a verification on the same date as the written response and production.

 

            Here, it appears that, as requested by this Court, that Defendant has complied with much of the discovery in which it claims it has done so. GM has also provided this Court with the Bates numbers of the responsive documents, as requested. But Ms. Randolph’s declaration lists a number of shortcomings of the supplemental document production.  The Court will continue the hearing to enable GM to provide a point by point response to Ms. Randolph’s declaration which is thus far leaving the Court with a record demonstrating that GM still has failed to provide other customers’ complaints, still has failed to provide letter of mails between GM employees and NHTSA or EPA bearing on the same types of battery complaints that Plaintiff here reported to repairing dealers, and other documents.