Judge Ronald F. Frank, Case Number: 23TRCV00534, Date: 2024-11-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00534, Date: 2024-11-27 Tentative Ruling

Case Number: 23TRCV00534 Hearing Date: November 27, 2024 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: November 27, 2024

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CASE NUMBER: 23TRCV00534

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CASE NAME: Khachatur Mkrtchyan v. General Motors LLC, et al.

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MOVING PARTY: Plaintiff, Khachatur Mkrtchyan

RESPONDING PARTY: Defendant, General Motors, LLC

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TRIAL DATE: January 13, 2025

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MOTION:¿ (1) Motion to Compel Defendant’s Further Responses to Requests for Production of Documents, Set One

Tentative Rulings: (1) GRANTED in part, DENIED in part, subject to oral argument. The Court will also discuss moving the trial date

I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On February 24, 2023, Plaintiff, Khachatur Mkrtchyan (“Plaintiff”) filed a complaint against Defendant, General Motors, LLC and DOES 1 through 50 (“GM”). The complaint alleges causes of action for: (1) Violation of Civil Code section 1793.2(d); (2) Violation of Civil Code section 1793.2(b); (3) Violation of Civil Code section 1793.2(a)(3); (4) Breach of Express Written Warranty – Civil Code section 1791.2(a); 1794; and (5) Breach of the Implied Warranty of Merchantability – Civil Code section 891.1; 1794.

On August 8, 2024, Plaintiff propounded Requests for Production of Documents on GM seeking documents: (1) relating to GM’s internal investigations and analysis of the Defects “plaguing” Plaintiff’s vehicle and establishing GM previously knew of such Defects but nevertheless refused to repurchase the vehicle (RFP Nos. 16-21). On September , 2024, Defendant served unverified responses that Plaintiff contends were filled with boilerplate objections and evasive, non-code compliant responses. Plaintiff also sates that many of the requested documents were also not produced, including investigative PowerPoint presentations and meeting minutes, failure rates, root cause analysis, similar customer calls and communications between engineers and that there was no indication that appropriate searches for ESI, email communications, and other data were conducted. On October 2, 2024, Defendant served verifications.

Based on the above, Plaintiff has brought a Motion to Compel Further Responses from GM as to Requests for Production of Documents, Set One, Nos. 16-21.

B. Procedural¿¿¿

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On October 16, 2024, Plaintiff filed the Motion to Compel GM’s further responses to Requests for Production of Documents, Set One. On November 14, 2024, GM filed an opposition brief. On November 20, 2024, Plaintiff filed a reply brief.

¿II. ANALYSIS¿

A. Legal Standard

A motion to compel further responses to a demand for inspection or production of documents (“RFP”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See Code Civ. Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) ¿

"The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (Cal. Code of Civ. Proc. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

B. Discussion

i. Meet and Confer

On August 8, 2024, Plaintiff’s counsel states sent a meet and confer letter to Defense counsel. (Declaration of Joshua Fennell (“Fennell Decl.”), ¶ 25.) On August 13, 2024, Defendant responded stating GM was not required to engage in discussions regarding ESI at that time. (Fennell Decl., ¶ 26.) On September 23, 2024, Plaintiff’s counsel sent another meet and confer detail regarding GM’s verifications, boilerplate objections, non-code compliant/deficient responses ad document production. (Fennell Decl., ¶ 27.) GM did not respond. (Fennell Decl., ¶ 28.)

On September 20, 2024, Plaintiff’s counsel sent a second meet and confer letter requesting a response to Plaintiffs September 5, 2024 meet and confer letter. (Fennell Decl., ¶ 29.) On September 25, 2024, Defendant’s counsel responded stating GM was standing on its objections. (Fennell Decl., ¶ 30.) On September 26, 2024, Plaintiff’s counsel sent another meet and confer letter. (Fennell Decl., ¶ 31.) GM did not respond. (Fennell Decl., ¶ 32.)

On October 4, 2024, Plaintiff sent another meet and confer letter to which GM did not respond. (Fennell Decl., ¶¶ 33-34.) On October 14, 2024, Plaintiff sent a final meet and confer letter. (Fennell Decl., ¶ 35.)

Despite GM’s assertion that Plaintiff failed to meet and confer in good faith, this court holds the meet and confer efforts to be sufficient.

ii. Motion to Compel Further

Plaintiff’s Motion to Compel GM’s Further Responses to Requests for Production of Documents, Set One, Plaintiff seeks further responses to RFP Nos. 16-21. The court rules on each as follows:

RFP Nos. 16: Despite Plaintiff limiting the inquiry to the same year, make, and model of the subject vehicle, the court finds the defined term, “Infotainment defects,” to be overbroad. Plaintiff defines this term to include, but not limit, no sound coming out of the speakers, volume not working, Apple CarPlay not working, radio screen freezing, infotainment screen going black, augmented reality not working, augmented reality black screen, screen switching to phone speaker instead of vehicle speakers during a call, radio turning purple, radio reprogramming, VESCOM reprogramming, cluster reprogramming, graphics reprogramming, serial dataway module reprogramming, radio replacement, TSB 5834958; and any other relevant concern identified in the repair history for the subject 2021 Cadillac Escalade; Vehicle Identification Number 1GYS3KKL2MR433401. While Plaintiff is not alone in seeking to define a defined term for purposes of discovery by including a catch-all clause such as “any other concern in the repair history of the subject vehicle,” that clause makes the definition objectionably problematic. The Court sustains GM’s objection, but rather than make Plaintiff go through another round of propounding, responding, and meeting and conferring before the inevitable next discovery motion, the Court fashions an order to resolve the parties’ dispute by deleting that clause from the discovery requests that are the subject of this motion to compel. In future, if and when this issue arises in other cases between the same law firms, the proposal or offer to delete an obviously objectionable clause or term should be made in the meet and confer process before a discovery motion is filed.

The next problematic issue raised by Plaintiff’s overly broad definition of “Infotainment defects” is the definition’s inclusion of approximately a dozen symptoms plus a TSB plus 6 different repair procedures in the ambit of a singe defined term. Doing so make the RFP objectionably compound. The next problematic issue is that this single RFP seeks not only 3 different categories of investigations as to the cause of the dozen or so symptoms, but also emails and cost analyses and other documents. Once again, the manner in which Plaintiff has phrased this single RFP is overly and objectionably compound. GM thus had substantial justification for requiring Plaintiff to bring a motion to compel so that a neutral third party, i.e., the Court, could rule on the objections. The Court generally does not require a motor vehicle manufacturer to search its thousands of employees’ emails for references to a TSB or repair procedure or root cause analysis report without a further showing than has been made here, because such a search is not reasonably calculated to lead to the discovery of evidence that would be admissible at trial, taking into account the needs of the case, the importance of the issue to this litigation, the burden of such a search, and other pertinent factors.

Instead, the Court will GRANT the motion as to RFP No. 16 and require GM to produce a more narrowly tailored subset of the requested categories of documents, as to the Infotainment symptoms reported by Plaintiff in the subject vehicle’s repair history, as contemplated by the Legislature and the Governor in their passage of new Civil Code section 871.26. If each of the listed symptoms of (1) no sound coming out of the speakers, (2) volume not working, (3) Apple CarPlay not working, (4) radio screen freezing, (5) infotainment screen going black, (6) augmented reality not working, (7) augmented reality black screen, (8) screen switching to phone speaker instead of vehicle speakers during a call, and (9) radio turning purple appear in Plaintiff’s repair history for the subject 2021 Escalade, then GM is ordered to produce the following categories of documents applicable to a model year 2021 Cadillac Escalade that discuss, mention, or include any such symptoms:

A. Published technical service bulletins (”TSBs”),

B. Published information service bulletins (”ISBs”),

C. Portions of any service manuals that evidence or discuss a recommended repair procedure or diagnostic steps the repair technician should undertake in diagnosing, repairing or replacing a component to address any of the 9 listed symptoms

If any of the 9 listed symptoms do not appear in the plaintiff’s repair history for the subject Escalade, then GM shall not be required to provide the TSBs, ISBs or service manual sections for such a non-included symptom. GM shall produce the required documents on or before January 3, 2025, the currently scheduled FSC date, with a verified written response. This will mean the currently scheduled trial date will need to be postponed, which the Court will discuss at the oral argument on this motion. The Court’s ruling is without prejudice to Plaintiff later seeking production of other documents.

RFP Nos. 17: DENIED in part and GRANTED in part. This RFP suffers from some of the same concerns as discussed for RFP 16, but the focus of this request is on “communications” and particularly emails. Is Plaintiff seeking communications between GM and Plaintiff, GM and its dealers, GM and other customers, GM and the US Department of Transportation, etc.? The court is unable to determine this from the request itself. Court will GRANT this request by narrowing its objectionable over breadth and require GM to produce by January 3, 2025 any Star Reports applicable to a model year 2021 Cadillac Escalade that discuss, mention, or include any of the 9 listed symptoms, again provided that symptom was mentioned in the subject vehicle’s repair history. The Court DENIES the RFP to the extent it seeks emailed communications from GM employees transmitting or mentioning a Star Report or any other emails at this time, i.e., without prejudice to a later more tailored RFP or interrogatory or deposition question.

RFP No. 18, 20, & 21: DENIED. To the extent that the discovery sought by these three RFPs overlaps and is being granted with respect to the other RFPs in this motion, the Court is permitting and requiring discovery determined by the Court to be reasonably calculated to lead to documents that may be admissible in this case and relevant to the issues of defect and willful violation of the Song-Beverly Act.

RFP No. 19: DENIED in part and GRANTED in part. The Court typically does grant motions to compel production of warranty claims presented to the motor vehicle manufacturer as to other customers’ complaints of the same symptoms experienced by the Plaintiff on two or more occasions in vehicles purchased or leased in California for the same year, make and model of the subject vehicle. At oral argument the Court will discuss with counsel the type of documents that may be required and the format for a production of documents such as in a sortable Excel spreadsheet that lists a compilation or summary of much more voluminous documents. The spreadsheet would contain the repair date, the VIN last 6 of the other customers’ vehicle, the servicing dealer by name, location and/or dealer code, a description of the customer’s complaint as listed in the warranty claim submission, the determined cause if any of that complaint or whether no problem or cause was found, and the correction, repair, or replacement performed if any.

The Court scope of permissible discovery will be only the MY 2021 Escalades sold or leased in California, a much smaller and less burdensome amount than the national total of all MY 2021 Escalades distributed in the United States. Further, the parties shall discuss search terms for key words to be used in a program for GM to run on its digitally stored records in GM’s warranty reimbursement system records. The Court will NOT order GM to identify the other customers by name, address, telephone number or any other PII. Any such compilation will be subject to a Discovery Protective Order in this case, and the custodian or other person who generates the compilation may need to be identified if the parties cannot stipulate to the use and admissibility of the chart should this case proceed to trial. The Court will not order production of ESI as to other California customers’ complaints of repair issues that occurred on a single occasion in the plaintiff’s repair history. Merely because the Plaintiff experienced a repair issue a single time does not make discovery of every other California customer’s records for that repair issue reasonable when considering the needs of the litigation, the importance of that issue to the issues disputed in this litigation, the amount in controversy, and the costs of providing the broader scope of discovery sought by Plaintiff.

Given the impending holidays the Court recognizes that the search for and generation of the other customers’ warranty claims may take more than 30 days, so GM should be prepared to propose a reasonable time frame for the production of the spreadsheet the Court will be ordering.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents is DENIED in part and GRANTED in part. Plaintiff is ordered to give notice.