Judge: Salvatore Sirna, Case: 20PSCV00593, Date: 2022-10-26 Tentative Ruling

Case Number: 20PSCV00593    Hearing Date: October 26, 2022    Dept: A

Defendant General Motors LLC’s MOTION FOR A PROTECTIVE ORDER

Respondent: Plaintiffs Noe Villanueva and Lorena Villanueva

Plaintiffs Noe Villanueva and Lorena Villanueva’s MOTION TO COMPEL COMPLIANCE WITH THE COURT’S FEBRUARY 17, 2022 DISCOVERY ORDER

Respondent: Defendant General Motors LLC

TENTATIVE RULING

Defendant General Motors LLC’s motion for a protective order is CONTINUED until November 9, 2022 to give parties adequate time to comply with meet and confer requirements.

Plaintiffs Noe Villanueva and Lorena Villanueva’s motion to compel compliance with the court’s February 17, 2022 discovery order is DEEMED MOOT.  The court awards sanctions to the Plaintiffs in the amount of $261.65, payable within 30 days of notice of this order.

BACKGROUND

In this breach of warranty action, Plaintiffs Noe Villanueva and Lorena Villanueva purchased a 2016 Chevrolet Camaro manufactured and distributed by Defendant General Motors, LLC. After discovering their vehicle was defective, Plaintiffs filed a complaint on September 10, 2020, against Defendant and Does 1 through 50 inclusive, alleging the following causes of action:

1.  Violation of Civil Code section 1793.2, subdivision (d).

2.  Violation of Civil Code section 1793.2, subdivision (b).

3.  Violation of Civil Code section 1793.2, subdivision (a)(3).

4.  Breach of Express Written Warranty under Civil Code section 1791.2, subdivision (a) and section 1794.

5.  Breach of implied warranty of merchantability under Civil Code section 1791.1 and section 1794.

FSC set for July 18, 2023. Jury trial set for August 1, 2023.

OVERVIEW OF DISCOVERY

 January 23, 2016: Plaintiffs purchased vehicle for $35,932.80. (MPO, Major Decl., ¶ 2, Ex. A)

·        April 19, 2021: Plaintiffs’ vehicle is totaled in an auto accident and received $21,405.48 from insurance company. (MPO, Major Decl., ¶ 3-4, Ex. B-C) Plaintiffs received payment in the amount of $10,350.35 and their insurance company paid of the remaining loan in the amount of $11,055.13. (MPO, Zhang Decl., ¶ 3, Ex. 1)

·         May 4, 2021: Allegedly unaware of the accident, Defendant provided § 998 Offer of Compromise in the amount of $107,453.54 plus $10,000 in attorney fees. (MPO, Major Decl., ¶ 5, Ex. D.) In the offer, Defendants required return of the vehicle. (MPO, Zhang Decl., ¶ 4, Ex. 2)

·         June 2, 2021: Plaintiff served objections to § 998 Offer on grounds of impossibility of performance, arguing they were not in possession of the vehicle. (MPO, Zhang Decl., ¶ 5) Plaintiff also sent a meet-and-confer email explaining that the settlement would have to be cash-and-keep. (MPO, Zhang Decl., ¶ 6, Ex. 3)

·         June 28, 2021: Defendant responded requesting a cash-and-keep demand and Plaintiff gave a response of $84,048.06 plus $10,000 in attorney fees. (MPO, Zhang Decl., ¶ 7, Ex. 3)

·         July 30, 2021: Plaintiff sent a follow up email and received no response. (MPO, Zhang Decl., ¶ 8-9)

·         December 14, 2021: Plaintiffs filed a motion to Compel Further discovery responses. (MPO, Major Decl., ¶ 6)

·         February 17, 2022: Court grants Plaintiff’s motion to Compel Responses to its request for production of documents including 16, 19, 20, 21, 32, and 42, requiring code compliant responses in 20 days. (MCC, Zhang Decl., ¶ 4-5, Ex. 1)

·         March 2, 2022: Plaintiff sent another email and reiterated a demand for $86,048.06. (MPO, Zhang Decl., ¶ 10)

·         March 4, 2022: Defendant responded and requested total loss documentation. (MPO, Zhang Decl., ¶ 11, Ex. 3)

·         March 14, 2022:  Plaintiff responded with insurance documents and specified that settlement demand was for $107,453.54 minus the amount of the insurance payout. (MPO, Zhang Decl., ¶ 12, Ex. 3) Plaintiff received no response until September. (MPO, Zhang Decl., ¶ 13)

·         April 19, 2022: Defendant provided unverified supplemental responses and document production. (MCC, Zhang Decl., ¶ 7, Ex. 2)

·         May 12, 2022: Plaintiff provided a response to Defendant, informing they were in violation of court orders because the supplemental responses were not code compliant and were incomplete. (MCC, Zhang Decl., ¶ 8, Ex. 3; MCC Opp., Major Decl., ¶ 4)

·         May 19, 2022: Defendant responded claiming they turned over everything they had and Plaintiff has not since received complete document production, signed verification for supplemental responses, a privilege log, or code compliant responses. (MCC, Zhang Decl., ¶ 9, Ex. 4; MCC Opp., Major Decl., ¶ 5)

·         August 17, 2022: Plaintiff filed motion to compel compliance. (MCC Supp., Zhang Decl., ¶ 3)

·         September 16, 2022: Defendant provided Plaintiff with privilege log, signed verifications for its supplemental responses, as well as charts detailing internal investigation into HVAC defect but not providing emails, memos, or other writings from team members as well as failure rate charts. (MCC Supp., Zhang Decl., ¶ 5; MCC Opp., Major Decl., ¶ 7)

·         September 29, 2022: Defendants provided new § 998 Offer of Compromise in the amount of $43,238.52. (MPO, Major Decl., ¶ 8, Ex. E) They also requested Plaintiffs forgo all further discovery in light of settlement offer and threatened an MPO if Plaintiffs did not. (MPO, Major Decl., ¶ 9; MPO, Zhang Decl., ¶ 14)

·         October 3, 2022: Defendant files MPO, arguing discovery should not take place because the only issue in this case is whether Plaintiff may claim as damages the amount of money they received from insurance company after the vehicle at issue was totaled in an accident. (MPO, p. 2)

ANALYSIS

Motion to Compel Compliance

Plaintiffs move for an order compelling compliance with the court’s February 17, 2022 discovery order. Defendant objects, arguing it has already served supplemental responses on the Plaintiffs along with additional document production.

A propounding party may move for an order compelling compliance if the party to whom requests were directed fails to produce documents in accordance with the party’s responses. (Code Civ. Proc., § 2031.320.) A court may also impose monetary sanctions if a party has failed to obey an order compelling inspection, copying, testing, or sampling. (Code Civ. Proc., § 2031.320, subd. (c).)

Here, on February 17, 2022, the court granted Plaintiff’s motion to compel responses to its request for production of documents including requests for production numbered 16, 19, 20, 21, 32, and 42, requiring code compliant responses in 20 days. (MCC, Zhang Decl., ¶ 4-5, Ex. 1) Defendant did not provide responses until two months later on April 19, 2022, that were unverified. (MCC, Zhang Decl., ¶ 7, Ex. 2) When Plaintiffs objected to Defendant’s responses, Defendant claimed it turned over everything it had, but did not provide Plaintiff with a privilege log, signed verifications for its supplemental responses, or charts detailing internal investigation into HVAC defects until September 16, 2022. (MCC Supp., Zhang Decl., ¶ 5; MCC Opp., Major Decl., ¶ 7)

Because Defendant provided responses that Defendant verified were complete, Plaintiffs’ motion to compel is moot. Plaintiff also requests sanctions in the amount of $500 a day for the time that Defendant did not submit its code-compliant responses.

However, the court notes that Plaintiff fails to provide any authority for the sanctions requested and does not submit an accounting that the court may use to calculate reasonable attorney fees and costs pursuant to Code of Civil Procedure section 2023.040.  Specifically, the Declaration of Nancy Zhang, Esq. (filed August 17, 2022) and the Supplemental Declaration of Nancy Zhang, Esq. (filed September 27, 2022) are insufficient to support the sanctions requested.

Therefore, utilizing a Lodestar approach and in view of the totality of the circumstances, the court awards sanctions to Plaintiff and finds reasonable costs in the total amount of $261.65 (1 hour in attorneys’ fees at $200/hr for drafting the motion; plus a filing fee of $61.65 for the motion to compel compliance).

Sanctions are payable to Plaintiffs’ in 30 days. 

Motion for Protective Order

Defendant moves for a protective order prohibiting further discovery in order to protect Defendant from undue burden or expense, arguing that the only issue in dispute is the amount of damages. Plaintiff objects, stating Defendant’s motion is a motion for summary judgment in disguise and contends they have failed to meet and confer in good faith.

Under Code of Civil Procedure section 2017.020, subdivision (a), the court has the authority to limit the scope of discovery if the court 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. In considering whether the discovery is unduly burdensome or expensive, the court considers the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. (Code Civ. Proc., § 2019.030, subd. (a)(2); see People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.)

On September 29, 2022, Defendant served a Code of Civil Procedure §998 settlement for $43,238.52. (MPO, Major Decl., ¶ 8, Ex. E) It also requested Plaintiffs forgo all further discovery in light of settlement offer and threatened an MPO if Plaintiffs did not. (MPO, Major Decl., ¶ 9; MPO, Zhang Decl., ¶ 14) On October 3, Defendant filed the present motion.

Pursuant to Code of Civil Procedure §2031.060, subdivision (a), a party moving for protective order must provide a meet and confer declaration under section 2016.040. While Defendant does provide such a declaration and stated Plaintiffs have not responded to their September 29 offer by October 3 (MPO, Major Decl., ¶ 10), the court finds these meet and confer efforts insufficient, as Defendant only sent one letter and waited five days for a response.

Accordingly, the parties are ordered to engage in a meaningful meet and confer process.  The court will continue the hearing on this motion until November 9, 2022 to allow the parties adequate time to meet and confer on the issues presented by the motion for a protective order.  The parties are to file supplemental declarations on or before November 4, 2022.