Judge Teresa A. Beaudet, Case Number: 22STCV14466, Date: 2023-10-10 Tentative Ruling

VICTORINO GUZMAN, et al.,

Plaintiffs,

vs.

general motors, llc, et al.,

Defendants.

Case No.:

22STCV14466

Hearing Date:

October 10, 2023

Hearing Time: 10:00 a.m.

TENTATIVE RULING RE:

PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF

DOCUMENTS, SET ONE

Plaintiffs Victorino Guzman and Deysi Guzman (jointly, “Plaintiffs”) filed this action on May 2, 2022 against Defendant General Motors, LLC (“GM”). The Complaint alleges 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 express written warranty, and (5) breach of the implied warranty of merchantability.

In the Complaint, Plaintiffs allege that “[o]n or about December 19, 2020, in exchange for valuable consideration, Plaintiffs purchased a 2021 Chevrolet Silverado 1500…manufactured and/or distributed by Defendant…” (Compl., ¶ 6.) Plaintiffs allege that “[d]uring the warranty period, the Vehicle contained or developed defects, including, but not limited to the following: a. Defective engine; and b. Any additional complaints made by Plaintiffs, whether or not they are contained in the records or on any repair orders.” (Compl., ¶ 12.)

On June 6, 2022, Plaintiffs served GM with Plaintiffs’ Requests for Production of Documents, Set One (herein, the “RFPs”). (Rogers Decl., ¶ 15, Ex. 7.) On July 5, 2022, GM served responses to the RFPs. (Rogers Decl., ¶ 16, Ex. 8.) Counsel for Plaintiffs and counsel for GM engaged in meet and confer correspondence regarding GM’s responses to the RFPs. (Rogers Decl., ¶¶ 19-38.)

On February 6, 2023, the parties participate in an Informal Discovery Conference (“IDC”). (Rogers Decl., ¶ 27.) The Court’s February 6, 2023 minute order provides, inter alia, as follows:

1. The parties will meet and confer with their clients and each other regarding the issues raised in Plaintiff’s Informal Discovery Conference Statement filed January 27, 2023.

2. On or before February 27, 2023 defendant will provide supplemental responses regarding further documents produced on August 4, 2022 and any additional documents resulting from their meeting and conferring.

3. Plaintiff has until March 20, 2023 to bring a motion to compel further on the issues described above.

Plaintiffs’ counsel indicates that “[o]n February 27, 2023, Defendant sent supplemental responses and document production.” (Rogers Decl., ¶ 32, Ex. 23.) Plaintiffs assert that GM’s “responses are still insufficient, as they indicate that Defendant has only complied in part with Plaintiff’s requests. Notably, Defendant has failed to produce any documents relating to GM’s internal investigations into the Powertrain Defect, which are necessary to support Plaintiff’s

Plaintiffs now move “for an order to strike [GM’s] meritless objections and compel further responses to Plaintiff’s Request for Production of Documents, Set One Nos. 7, 10, 16, 19–20, 34, 59, 61, 62, 66, 68, and 69.” GM opposes.

Objection No. 1: sustained as to “full and complete,” overruled as to the remainder.

Objection No. 3: sustained as to “but they have also put a significant burden on the courts,” overruled as to the remainder.

Code of Civil Procedure section 2031.310, subdivision (a) permits a propounding party to move for an order compelling a further response to a demand for inspection if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit or too general. (Id., § 2031.310, subd. (a).) A motion to compel further responses to a demand for inspection must set forth specific facts showing good cause for the discovery sought and must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).)

As an initial matter, GM asserts in the opposition that Plaintiffs did not sufficiently meet and confer with GM in good faith. However, as set forth above, Plaintiffs’ counsel engaged in meet and confer correspondence with GM’s counsel concerning the RFPs and participated in an IDC. Thus, the Court does not find that Plaintiffs failed to meet and confer with GM in good faith.

As set forth above, Plaintiffs seek to compel further responses to Requests Nos. 7, 10, 16, 19, 20, 34, 59, 61, 62, 66, 68, and 69 of the RFPs.

Plaintiffs’ Request No. 7 seeks “[t]he Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2021 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame].”

Request No. 10 seeks “[a] copy of the Workshop Manual specifying diagnosis and repair procedures for vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

Request No. 34 seeks “[a]ll DOCUMENTS that YOU use to evaluate consumers’ requests for repurchases pursuant to the Song Beverly Consumer Warranty Act.”

As to Requests Nos. 7, 10, and 34, GM asserts that it “already supplemented its production with documents responsive to these requests on August 5, 2022, pursuant to the parties’ Protective Order, as well as supplemental responses on February 27, 2023. (See Rogers Decl., Ex. 15). Thus, there is nothing to compel.” (Opp’n at p. 7:10-13, emphasis omitted.) In support of this assertion, GM cites to paragraph 15 of Plaintiffs’ counsel’s supporting declaration, which provides that “[a]ttached as Exhibit 7 is a true and correct copy of Plaintiff’s Request for Production, Set One (“RFP”), including the Proof of Service, which was electronically served by Plaintiff on June 6, 2022.” (Rogers Decl., ¶ 15.) The Court does not see how this portion of Plaintiffs’ counsel’s declaration is relevant to GM’s assertion that there is nothing to compel as to Requests Nos. 7, 10, and 34. In addition, the Court notes that GM’s supplemental responses to Requests Nos. 7, 10, and 34 provide that GM “complies in part.” (See Rogers Decl., ¶ 32, Ex. 23.)

As to Request No. 7, Plaintiffs assert that “[t]he warranty policy and procedure manual, which is provided to Defendant’s repair facilities and outlines the policies and procedures to be followed by that facility with respect to warranty repair visits, will shed light on how the repair facility treats and handles any particular repair visit. It will show how the dealership knows what is and is not covered by Defendant’s express warranty and how to submit warranty claims.” (Plaintiffs’ Separate Statement at p. 4:21-25.) As to Request No. 10, Plaintiffs assert that the requested documents “can support Plaintiff’s claim for civil penalty liability by showing Defendant was aware of a prevalent defect which neither it nor its dealerships could repair.” (Id. at p. 19:20-21.) As to Request No. 34, Plaintiffs assert that “[u]nder the Song-Beverly Act, if Plaintiff establishes Defendant has willfully failed to comply with any obligations under the act, then Plaintiff is entitled to civil penalty damages…Accordingly, Plaintiff is entitled to discovery relating to Defendant’s policies, procedures, and practices regarding vehicle repurchases.” (Id. at p. 27:2-6.)

Plaintiffs cite to Civil Code section 1794, subdivision (c), which provides that “[i]f the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty.”

Based on the foregoing, the Court finds that Plaintiffs have demonstrated good cause to compel further responses to Requests Nos. 7, 10, and 34.

Request No. 16 seeks “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any internal analysis or investigation by YOU or on YOUR behalf regarding the POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such POWERTRAIN DEFECT, any such investigation to design a permanent repair procedure for such POWERTRAIN DEFECT, any such investigation into the failure rates of parts associated with such POWERTRAIN DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.].”

Request No. 19 seeks “[a]ll DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to the POWERTRAIN DEFECT, including but not limited to any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.”

Request No. 20 seeks “[a]ll DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning failure rates of vehicles of the same year, make, and model as the SUBJECT VEHICLE as a result of the POWERTRAIN DEFECT.”

Request No. 59 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #14-06-04-004H, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

Request No. 61 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #21-NA-200, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

Request No. 62 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #22-NA-066, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

Request No. 66 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #PIE0666A, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

Request No. 68 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #PIP5776D, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

Request No. 69 seeks “[a]ll DOCUMENTS related to YOUR Technical Service Bulletin #PIP5776G, including but not limited to, all versions from the first published to the current and all internal analysis reports that were incorporated into the Bulletin.”

In its responses to Requests Nos. 16 and 20, GM raised objections, and stated that “[n]o documents will be produced.” (Rogers Decl., ¶ 16, Ex. 8.) No supplemental response was provided as to these requests. (Rogers Decl., ¶ 32, Ex. 23.) GM’s supplemental responses to Requests Nos. 19, 59, 61, 62, 66, 68 and 69 provide, inter alia, that “GM complies in part.” (Ibid.)

In its opposition, GM asserts that “[r]equest Nos. 16, 19, 20, 59, 61, 62, 66, 68 and 69 seek GM’s internal analysis, investigations, communications, reports and design-related documents (including other consumer complaints and matters) about the alleged ‘POWERTRAIN DEFECT’ in vehicles other than Plaintiffs’ own Silverado, including internal investigation documents supporting the issuance of certain powertrain-related TSBs. Plaintiffs have asserted breach of warranty claims, not product liability claims. Either Plaintiffs’ Silverado conformed to the warranty, or it did not conform to the warranty. Either GM repaired the Silverado within a reasonable number of attempts, or it did not repair the Silverado within a reasonable number of claims. Documents about other vehicles or the design of the Silverado are irrelevant to the pending claims.” (Opp’n at p. 7:14-23.)

Plaintiffs assert that “[t]he Requests seek documents relating to Defendant’s internal investigation and analysis of the Powertrain Defect plaguing Plaintiff’s vehicle and establishing that Defendant previously knew of such Defects but nevertheless refused to repurchase the vehicle (i.e., Nos. 16, 19–20, 59, 61, 66, 68, and 69). As evidenced by its own TSBs, the documents will establish that Defendant is, and has been, aware of the Defect; that the Defect is ongoing; that Defendant lacks any means of fixing it; and that despite all of this information, Defendant has acted, and continues to act, in bad faith, willfully violating the Act by failing to repurchase Plaintiff’s vehicle.” (Mot. at p. 12:6-13.)

As set forth above, Plaintiffs cite to Civil Code section 1794, subdivision (c), which provides that “[i]f the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty.” Plaintiffs also cite to Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136, where the Court of Appeal noted that “[u]nder section 1794, subdivision (c), the court may impose a civil penalty up to two times the amount of actual damages if the buyer proves the manufacturer’s failure to comply was willful. The penalty is important as a deterrent to deliberate violations. Without such a provision, a seller or manufacturer who knew the consumer was entitled to a refund or replacement might nevertheless be tempted to refuse compliance in the hope the consumer would not persist, secure in the knowledge its liability was limited to refund or replacement.” (Internal quotations omitted.)

GM also asserts that “Request Nos. 16, 19, 20, 59, 61, 62, 66, 68 and 69 impermissibly put the onus on GM to determine the scope of the so-called ‘non-conformities’ that Plaintiffs have alleged. Plaintiffs, not GM, must specify the non-conformity about which Plaintiffs are complaining.” (Opp’n at p. 7:23-26.) The Court notes that GM cites non-binding authority in support of this assertion. In addition, Plaintiffs’ RFPs define the term “POWERTRAIN DEFECT” to mean “such defects which result in symptoms including, but not limited to: check engine light illuminated; clunk noise emanating from engine; tick noise emanating from engine; misfire of Cylinder #1; bent push rod; replacement of left bank; replacement of all lifter and lifter guides; oil change; coolant change; replacement of oil filter; activation of all warning lights; misfire of Cylinder #6; bent intake push rod; replacement of bank lifters; replacement of #6 spark plug; and any other concern identified in the repair history for the subject 2021 Chevrolet Silverado 1500; Vehicle Identification Number 3GCPWCED7MG171310.” (Rogers Decl., ¶ 15, Ex. 7, p. 3.)

The Court finds that Plaintiffs have demonstrated good cause for further responses to Requests Nos. 59, 61, 62, 66, 68, and 69.

In addition, the Court finds that Plaintiffs have demonstrated good cause for further responses to Requests Nos. 16, 19, and 20, but the Court also finds that there is merit to GM’s objections based on overbreadth. Thus, the Court limits these requests to vehicles of the same year, make, and model as the Subject Vehicle in California.

Lastly, GM objects to most of the subject requests to the extent the requests seek confidential, proprietary, and trade secret information. GM also objects to most of the subject requests to the extent the requests seek information protected by the attorney-client privilege and/or work-product doctrine. The Court finds that these objections are not sufficiently supported by facts. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 596-597 [burden to show preliminary facts supporting application of privilege not met where defendant failed to produce privilege log or identify any specific confidential communications]); Code Civ. Proc., § 2031.240, subd. (c)(1) [“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”].) GM provides a 2018 Declaration of Huizhen Lu, who is a “Senior Manager/Senior Technical Consultant of Engineering Analysis” with GM, and states, inter alia, that “documents produced in the instant litigation may contain confidential, external communications between GM LLC employees and Joint Venture Participants, suppliers, and sub-suppliers pertaining to technical, mechanical, and commercial issues and analyses…This type of overall analysis and information is commercially sensitive business information that is not made available to the public, the disclosure of which would cause GM LLC competitive harm.” (Kay Decl., ¶ 18, Ex. A (Lu Decl.) ¶¶ 2, 38.) However, this declaration pre-dates the date this action was filed, and thus does not contain any specific reference to the facts of this case (as noted by Plaintiffs). No evidence is provided demonstrating how the requested information purportedly involves confidential, proprietary, and/or trade secret information; or information protected by the attorney-client privilege and/or work-product doctrine.

Based on the foregoing, Plaintiffs’ motion is granted in part. Plaintiffs’ motion is granted as to Requests Nos. 7, 10, 34, 59, 61, 62, 66, 68, and 69. Plaintiffs’ motion is granted as to Requests Nos. 16, 19, and 20, subject to the limitation discussed above.

The Court orders GM to provide further verified responses and to produce documents responsive to Requests Nos. 7, 10, 16, 19, 20, 34, 59, 61, 62, 66, 68, and 69 of Plaintiffs’ Requests for Production of Documents, Set One (subject to the limitation set forth above as to Requests Nos. 16, 19, and 20), within 30 days of the date of this Order.¿¿

[1]The Court notes that this objection is not numbered, but follows Plaintiffs’ Objection No. 4.

Superior Court of California

County of Los Angeles

Department 50