Thomas Schiferl vs General Motors LLC

Case Number

23CV03439

Case Type

Hearing Date / Time

Fri, 05/10/2024 - 10:00

Nature of Proceedings

CMC/Motions to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to special interrogatories, set one, is granted, in part. On or before May 31, 2024, defendant General Motors, LLC, shall serve verified further responses to plaintiff’s set one special interrogatory numbers 41 and 43, without objections overruled herein. Except as herein granted, plaintiff’s motion to compel further responses to special interrogatories is otherwise denied.

(2) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to request for production of documents, set one, is granted, in part. On or before May 31, 2024, defendant General Motors, LLC, shall serve a verified further response to plaintiff’s set one request for production number 77, without objections overruled herein, and produce responsive documents. If appropriate, defendant shall also provide a privilege log. Except as otherwise herein granted, plaintiff’s motion to compel further responses to requests for production is denied.

(3) For all reasons discussed herein, the court’s March 22, 2024, order to show cause is discharged.

Background:

This action arises out of the purchase of a vehicle manufactured by defendant General Motors, LLC (GM). As alleged in the complaint filed by plaintiff Thomas Schiferl on August 8, 2023:

On September 16, 2020, plaintiff travelled to Bunnin Chevrolet in Santa Barbara, California, to acquire a safe and reliable electric vehicle that would be able to go at least 259 miles per charge and that did not have any defects with its battery. When plaintiff arrived at the dealership, he met with the salesperson and asked her to show him a 2020 Chevrolet Bolt EV (the vehicle). The salesperson assured plaintiff that there were no problems with the battery in the vehicle. Once plaintiff was satisfied by the representations made by the salesperson and by GM, through its advertisements and publications, that the vehicle’s range on a single charge was 259 miles and that there were no problems with the vehicle’s battery, plaintiff executed a lease for the vehicle on June 23, 2020.

Unbeknownst to plaintiff, the battery that GM installed in the vehicle can start a fire which resulted in GM issuing numerous recalls. The recalls reduced the charge capacity of the battery and the distance the vehicle can be driven on a single charge. GM also advised vehicle owners not to charge the vehicle in their garages due to a risk of fire.

Pursuant to a recall issued by GM on August 20, 2021, plaintiff presented the vehicle to an authorized Chevrolet dealership to have the defective battery replaced. The dealership advised plaintiff that the parts were not available and that it had no information as to when they would be. Despite plaintiff’s repeated presentations of the vehicle to GM’s authorized repair facilities, GM has been unable to conform the vehicle to its express warranties. The vehicle remains in a defective condition.

GM was aware of the defective batteries plaguing Chevrolet Bolt vehicles, which includes cell battery imbalances or defects in the battery management system, as early as 2017. Plaintiff would not have leased the vehicle had he been advised that he could not drive 259 miles on a single charge, or had he been advised that the vehicle could catch fire and burn down plaintiff’s home.

Plaintiff’s complaint alleges six causes of action against GM: (1) fraudulent concealment and misrepresentation; (2) negligent misrepresentation; (3) unlawful, unfair, or fraudulent business acts and practices (Business and Professions Code section 17200 et seq.; (4) violation of the Song-Beverly Consumer Warranty Act (breach of express warranty); (5) violation of the Song-Beverly Consumer Warranty Act (breach of implied warranty); and (6) violation of the Song-Beverly Consumer Warranty Act (Civil Code section 1793.2, subdivision (b)).

On September 14, 2024, GM filed a demurrer to the first, second, and third causes of action alleged in the complaint and a motion to strike from the complaint plaintiff’s demand for punitive damages. Plaintiff opposed the demurrer and motion to strike. On December 8, 2023, the court issued its Minute Order sustaining the demurrer as to the second cause of action for negligent misrepresentation only, with leave to amend, and denied the motion to strike. The court ordered plaintiff to file and serve a first amended complaint, if any, on or before December 18, 2023.

Court records reflect that plaintiff did not file an amended complaint on or before December 18, 2023, as ordered by the court. On December 19, 2023, GM filed its answer to the complaint generally denying its allegations and asserting twenty-nine affirmative defenses. Accordingly, the complaint is the operative pleading.

On February 21, 2024, plaintiff filed a motion for an order striking objections to and compelling further responses by GM to plaintiff’s set one special interrogatories (the SI) numbers 14, 20, 23, 25, 26, 39, 41, and 43 (the SI motion), and a motion for an order striking objections to and compelling further responses and production of documents by GM to plaintiff’s set one request for production of documents (the RFP) numbers 28, 29, 37 through 64, 67 through 70, 73, 74, and 77 through 86 (the RFP motion). In support of the SI motion and the RFP motion (collectively, the motions to compel), plaintiff submits the declaration of his counsel, Priscilla Le.

With respect to the motions to compel, Le declares that on October 27, 2023, plaintiff served the RFP and the SI on GM to which GM served responses on November 22, 2023. (Le Decl., ¶¶ 17-18 & Exhs. A-D.) Le further declares that on January 5, 2024, Le sent a meet and confer letter discussing GM’s failure to produce documents to which GM responded on January 12, 2024, stating it served a document production on January 11, 2024. (Id. at ¶¶ 20-21 & Exhs. F & G.) In addition, Le recites information regarding the parties’ execution of a Stipulated Protective Order. (Id. at ¶¶ 22-24 & Exhs. H-J.)

On February 5, 2024, Le sent a meet and confer letter further highlighting purported deficiencies with the responses of and the lack of document production from GM, and requesting a response and complete document production by February 12, 2024. (Le Decl., ¶ 25 & Exh. K.) On February 12, 2024, GM served a supplemental production pursuant to the Stipulated Protective Order. (Id. at ¶ 26 & Exh. L.) In addition, GM responded to Le’s February 5, 2024, meet and confer letter on February 20, 2024, maintaining its objections and responses for most of the discovery requests at issue. (Id. at ¶ 28.)

GM opposes the motion. In support of its opposition, GM submits the declaration of its counsel, Claudia Gavrilescu, who does not effectively dispute the information offered in the Le declaration regarding service of the SI and RFP, and responses thereto, or the description of the parties’ efforts to meet and confer regarding the present dispute. (See, e.g., Gavrilescu Decl., ¶¶ 2-6 [reciting dates of GM’s responses to the discovery requests at issue and the parties’ communications regarding same].) Gavrilescu further states that GM made a supplemental production of documents on February 12, 2024, which included “CA CEC” training materials, call center policies and procedures, a service manual, service policy and procedure manuals, and the standard provisions of a dealer agreement. (Id. at ¶ 7.)

Gavrilescu further asserts that GM objected to specific discovery requests to the extent they sought information or documents which are outside of the possession, custody, or control of GM; information about vehicles or issues unrelated to plaintiff’s vehicle; information protected by the attorney-client privilege or work product doctrine; and information which is confidential, proprietary, or competitively sensitive in nature. (Gavrilescu Decl., ¶ 3.)

Court records further reflect that on March 22, 2024, the court issued an order to show cause why sanctions should not be imposed for counsel for plaintiff’s failure to appear at the March 22, 2024, Case Management Conference in this matter. (Mar. 22, 2024, Minute Order.) The court further ordered counsel for plaintiff to file a declaration under penalty of perjury prior to the hearing on the order to show cause. (Ibid.)

On April 8, 2024, attorney Nicholas Yakoobian filed a declaration stating that counsel’s non-appearance at the March 22, 2024, Case Management Conference was a result of a calendaring error. (Yakoobian Decl., ¶ 2.) Counsel further states that he takes “full responsibility for missing the hearing” and apologizes for “any inconvenience that the non-appearance may have caused….” (Ibid.)

Analysis:

(1) The SI Motion

A response to an interrogatory must contain either “[a]n answer containing the information sought to be discovered”, “[a]n exercise of the party’s option to produce writings”, or “[a]n objection to the particular interrogatory. (Code Civ. Proc., § 2030.210, subd. (a)(1)-(3).) To the extent a responding party objects to an interrogatory in whole or in part, the specific grounds for the objection, including those based on a claim of privilege, must be set forth clearly in the response. (Code Civ. Proc., § 2030.240, subd. (b).) “If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).)

A response to an interrogatory “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc. §2030.220, subd. (a).) If an interrogatory cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [“a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions”].) If the responding party does not have sufficient personal knowledge to enable a full response, the party “shall so state” but must “make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subd. (b).)

On receipt of responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that the responses are “evasive or incomplete,” or if the objections are “without merit or too general.” (Code Civ. Proc., §2030.300, subd. (a)(1) & (3).)

SI Nos. 14, 20, and 25:

SI Nos. 14, 20, and 25 request, respectively, that GM identify all persons who performed warranty repairs on the vehicle, who inspected or tested the vehicle during the “RELEVANT PERIOD”, and who “have knowledge of [p]laintiffs’ notice(s) of DEFECT to [GM]….” (Sep. Stmt. at p. 3, 6 & 7.)

In its response to SI Nos. 14, GM objects to the term “warranty repairs” as vague, ambiguous, and overbroad. (Sep. Stmt. at p. 3.) In its response to SI No. 20, GM “incorporates and restates” the response to SI No. 18 in which GM objects to the terms “retain”, “inspection”, and “testing” (which do not appear in SI No. 20), and asserts an objection based on privilege. (Id. at p. 6.) In its response to SI No. 23, GM objects to the term “DEFECT”, which is not defined in this SI, as vague ambiguous, and overbroad, and to the extent the term assumes there is a “DEFECT” with respect to the vehicle. (Id. at p. 7.)

GM bears the burden to justify its objections to SI Nos. 14, 20, and 25. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220-221.) In its responsive separate statement, GM fails to offer any reasoned argument to show that its objections to the requests stated in SI Nos. 14 and 20, which, subject to exception, are in large part addressed to terms appearing in these SI as further discussed above, are meritorious. Therefore, the court will grant the SI motion, in part, and overrule the objections of GM to SI Nos. 14 and 20 except as to those based on privilege. (Code Civ. Proc., § 2030.240, subd. (b).)

With respect to the objection by GM to the term “DEFECT” asserted in its response to SI No. 23, plaintiff has not included the definition of this term in the separate statement in violation of California Rules of Court, rule 3.1345(c), which requires a separate statement to include, when necessary, the text of all definitions required to understand each request at issue. As the court requires the definition of the term “DEFECT” to determine whether the objection to this term asserted by GM is meritorious, the court will sustain GM’s objection to the term “DEFECT” appearing in SI No. 23. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-893.) Further, the court will sustain the remaining objections of GM to SI No. 23 which are based on the definition of the term “DEFECT” and on privilege.

Substantively, in its responses to SI Nos. 14 and 23, GM refers plaintiff to documents described as “Service Request Activity Report(s)”, the “Global Warranty History Report” for the vehicle, and any “repair orders that GM may have obtained from [its] authorized dealerships who may have serviced, maintained, or repaired” the vehicle which GM asserts identify the “individuals and transactions, including dates and times, of which GM is familiar” regarding the vehicle. (Sep. Stmt. at pp. 3 & 7.) In its response to SI No. 20, GM states that it has not inspected or repaired the vehicle and refers plaintiff to “any incidentally obtained repair orders produced in its responses to [the RFP] which may contain the names of individuals who inspected and/or repaired” the vehicle. (Id. at p. 6.)

Plaintiff contends that GM must specifically identify all service technicians because its authorized dealerships are agents for GM for the purposes of performing or attempting to perform repairs to the vehicle. (Sep. Stmt. at pp. 3-7.) In response, GM contends that plaintiff is in possession of or has been referred to documents that GM produced from its authorized dealerships that may have serviced, maintained, or repaired the vehicle and that GM does not itself maintain repair records from which it can identify persons who made repairs other than by how these individuals are identified in the documents obtained and produced by GM. (Id. at pp. 3-4.)

Notwithstanding whether its authorized dealerships are agents for GM (and the court presently makes no findings in this regard), under Code of Civil Procedure section 2030.230, if an answer to an interrogatory “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” (Code Civ. Proc., § 2030.230.)

Plaintiff fails to sufficiently demonstrate in the moving separate statement why the documents identified in GM’s responses to these requests do not permit plaintiff to derive or ascertain the identity of the service technicians or other persons who performed or attempted to perform warranty repairs, inspections, or testing of the vehicle, or other persons who had knowledge of an undefined “notice of DEFECT”. Plaintiff also does not offer reasoned argument demonstrating that the burden or expense of obtaining that information from the documents produced by GM and referenced in its responses to SI Nos. 14, 20, and 23 is not substantially the same as between GM and plaintiff. (See Bunnell v. Superior Court of Alameda County (1967) 254 Cal.App.2d 720, 724.)

In the reply, plaintiff asserts in a general and conclusory manner that the documents produced by GM do not contain information identifying service technicians or other persons described in SI Nos. 14, 20, and 23. Considering that in its responses to these SI, GM specifically directs plaintiff to documents from which the information sought can be derived, and that in its moving papers, plaintiff argues that GM is in a position to obtain documents and information responsive to these SI (see Sep. Stmt. at p. 6, ll. 1-6), plaintiff’s contention constitutes new matter which may not be raised in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Moreover, the court is not presently in a procedurally appropriate position to determine whether the documents identified by GM contain, as GM contends, sufficient information to permit plaintiff to ascertain the information sought in SI Nos. 14, 20, and 23, or do not, as plaintiff contends, include information sufficient to permit plaintiff to derive or ascertain the information sought in these SI.

Available information indicates that an answer to SI Nos. 14, 20, and 23 would necessitate that GM make a compilation or summary from its own documents that it has apparently obtained from other sources. Plaintiff has failed to demonstrate, with reasoned argument, that the burden or expense that plaintiff would incur to make the compilation or summary is not the same for plaintiff as for GM. Therefore, it is sufficient for GM to answer SI Nos. 14, 20, and 23 by referring to the writings from which plaintiff can derive the discovery sought. For this reason, plaintiff has not met his burden to show that the exercise of the option to produce documents by GM is unwarranted or inadequate. Therefore, the court will deny the SI motion, in part, and deny plaintiff’s request for an order compelling GM to provide a further response to SI Nos. 14, 20, and 23.

SI Nos. 25, 26, and 39:

SI Nos. 25, 26, and 39 request that GM identify, respectively, persons “who are responsible for the customer relations department in the district or region having jurisdiction over plaintiff’s complaints during the RELEVANT PERIOD”, GM’s “present employee in California who is most knowledgeable regarding [GM’s] warranty policies, including but not limited to any policies [GM] may have had regarding the replacement or reimbursement of allegedly defective automobiles, during the RELEVANT PERIOD”, and “individual(s) whose responsibility it is to supervise to ensure that [GM is] properly determining whether a vehicle should be repurchased or replaced pursuant to The Song-Beverly Warranty Act.” (Sep. Stmt. at pp. 8, 9, & 10.)

GM objects the terms “customer relations department” and “jurisdiction” contained in SI No. 25 as vague and ambiguous, and objects to SI No. 25 to the extent the request seeks information which is irrelevant and not reasonably calculated to lead to the discovery of admissible information, to the extent it seeks confidential, proprietary and trade secret information, and to the extent it seeks information protected by the attorney-client privilege and work-product doctrine. (Sep. Stmt. at p. 8.)

In its response to SI No. 26, GM objects to the term “defective automobiles” as vague and ambiguous, and objects to this SI on the grounds of premature witness disclosure because GM asserts it has not had an opportunity to inspect the vehicle. (Sep. Stmt. at p. 9.)

GM objects to SI No. 39 as “overbroad, vague, ambiguous, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it is not limited to” the vehicle, and to the extent SI No. 39 seeks “confidential, proprietary and trade secret information” or “information protected by the attorney-client privilege and/or work-product doctrine.” (Sep. Stmt. at p. 10.)

Plaintiff has not included in the separate statement the definition of the term “RELEVANT PERIOD” which appears in SI Nos. 25 and 26. The court requires the definitions of this term to determine whether the objections asserted by GM to these SI are meritorious.

In addition, on their face, SI Nos. 25, 26, and 39 are not limited to persons who were involved in handling or making decisions regarding the vehicle at issue or plaintiff’s complaints about defects in the vehicle or its battery. Plaintiff also fails to sufficiently explain why the identity of persons who are generally responsible for GM’s customer relations department, generally knowledgeable about GM’s policies regarding replacement or reimbursement of defective automobiles, or generally responsible to ensure that GM complies with its statutory obligations, will necessarily disclose the identity of persons who were involved in any request by plaintiff with respect to the vehicle.

In addition, the term “defective vehicles” is not meaningfully calibrated to the vehicle at issue or the defects alleged in the present action. For example, this term is potentially unlimited and beyond the scope of the issues present in this action with respect to the type of defects that make a specific vehicle “defective”. Plaintiff has also failed to sufficiently explain, apart from generalized conclusory statements, how the disclosure of the identity of persons described in SI Nos. 25, 26, and 39 will demonstrate that the defects alleged in this action were widespread. In addition, as further discussed above, without knowing the definition of the term “RELEVANT PERIOD”, the court is unable to determine the scope of SI Nos. 25 and 26.

For all reasons further discussed above, SI Nos. 25, 26, and 39 are potentially unlimited in scope including with respect to time and subject matter with respect to the issues and defects alleged in the present action. In addition, and for all reasons further discussed above, plaintiff’s failure to include the definition of the term “RELEVANT PERIOD” in the separate statement is a sufficient basis on which the court may deny the motion as to SI Nos. 25 and 26. As plaintiff has failed to demonstrate that the objections asserted by GM in response to SI Nos. 25, 26, and 39 are wholly without merit, the court will sustain the objections of GM to these SI and deny plaintiff’s request for an order compelling GM to provide a further response.

Though the court declines to issue an advisory opinion regarding the manner in which each of the requests stated in SI Nos. 25, 26, and 39 may be crafted or further narrowed, the court’s denial of the SI motion with respect to these SI is without prejudice to a future procedurally appropriate motion to compel to the extent plaintiff chooses to narrow these categories in any future request.

SI Nos. 41 and 43:

SI Nos. 41 and 43 ask GM to identify, respectively, “all person(s) involved in [GM’s] investigation, including any individuals with whom you communicated regarding” the vehicle, and “all individuals responsible for [GM’s] decision whether or not repurchase or replace” the vehicle. (Sep. Stmt. at pp. 11 & 12.) GM objects to SI No. 41 “on grounds that this interrogatory is overbroad, vague, ambiguous, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence”, “to the extent it seeks confidential, proprietary and trade secret information”, and “to the extent it seeks information protected by the attorney client privilege and/or work-product doctrine.” (Sep. Stmt. at p. 11.) GM objects to SI No. 43 “on grounds it is overbroad, vague, ambiguous, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence”, “to the extent it seeks confidential, proprietary and trade secret information”, and “to the extent it seeks information protected by the attorney client privilege and/or work-product doctrine.” (Sep. Stmt. at pp. 12-13.)

GM fails to offer any reasoned argument demonstrating that its objections to the requests stated in SI Nos. 41 and 43, which are specifically directed to the vehicle at issue here, are meritorious. For example, GM offers no information to demonstrate how the requests in SI Nos 41 and 43 implicate confidential or proprietary information or are vague, ambiguous, or overly broad. GM also has failed to offer “evidence showing the quantum of work required” to respond to these SI. (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) In addition, as the court construes SI No. 41 and 43 as relating directly to GM’s investigation of the vehicle or defects in the vehicle and GM’s decision whether to repurchase or replace the vehicle, GM has failed to justify its objections to SI Nos. 41 and 43 based on relevance. Therefore, the court will overrule GM’s objections to SI Nos. 41 and 43 except as to those based on privilege.

In its substantive responses to SI Nos. 41 and 43, GM asserts that concerns with the vehicle were resolved, that the vehicle was adequately repaired within a reasonable number of attempts, and generally refers plaintiff to a “New Vehicle Limited Warranty, any Service Request Activity Report(s), the Global Warranty History Report for the [vehicle], and any repair orders that GM may have obtained from GM-authorized dealerships who may have serviced, maintained, or repaired the [vehicle].” (Sep. Stmt. at pp. 11-12 & 13.) Though it may be sufficient for GM to specify writings from which an answer to SI Nos. 41 and 43 may be derived provided the burden or expense of doing so would be substantially the same for plaintiff as for GM, GM fails to explain how the documents described in GM’s responses to SI Nos. 41 and 43, which appear to relate to repairs made to the vehicle as further discussed above and not the investigations or decisions referenced in these SI, include the information described in SI Nos. 41 and 43. For this reason, the responses of GM to SI Nos. 41 and 43 appear to be evasive and incomplete.

For all reasons described above, the court will grant the SI motion in part, and order GM to provide verified code-compliant further responses to SI Nos. 41 and 43, without objections except as to those based on privilege. It is a sufficient response for GM to specify writings from which an answer can be derived provided that any such response fully complies with the Code of Civil Procedure including section 2030.230.

(2) The RFP Motion

A motion to compel further responses to a demand for production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b).) In circumstances where there exist no issues of privilege or claims of attorney work product, the burden to demonstrate good cause is met “by a fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; accord, Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

RFP Nos. 28, 29, 37 through 64, 67 through 70, 73, 74, and 78 through 86:

For all reasons discussed below, plaintiff has failed to demonstrate sufficient good cause for the discovery sought in RFP Nos. 28, 29, 37 through 64, 67 through 70, 73, 74, and 78 through 86.

RFP Nos. 28 and 29 demand that GM produce “all” documents that “refer, relate to or concern” GM’s “policies and procedures” for the issuance of recalls and technical service bulletins. (Sep. Stmt. at pp. 2 & 9.) RFP No. 37 demands that GM produce all documents “sufficient to establish the number of 2017 through 2022 Chevrolet Bolt vehicles” manufactured by GM. (Sep. Stmt. at p. 10.) In RFP No. 37, plaintiff also requests that GM include a “breakdown of the number of vehicles for each model year”. (Ibid.)

“Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221 (Calcor).) The requests stated in RFP Nos. 28, 29, and 37 are potentially unlimited in scope. For example, on their face, RFP Nos. 28 and 29 require GM to produce all policies and procedures for the issuance of recalls and technical service bulletins, including documents referring to these policies and procedures, without limitation in geographical scope or with respect to the nature of the defects or type of vehicles or components for which any recalls or bulletins are issued. Though plaintiff asserts that these RFP are limited to recalls and technical service bulletins that apply to the vehicle, these RFP are not so limited on their face. Moreover, plaintiff has failed to explain how GM’s policies and procedures for issuing recalls or technical service bulletins relating to different vehicle components or defects will demonstrate a “widespread problem” with respect to the defect or battery at issue in the present action.

In addition, RFP No. 37 is potentially unlimited in scope to the extent it sweeps within its purview all vehicles irrespective of whether the same purportedly defective battery was installed in those vehicles or whether those vehicles experienced the same defects alleged in the present action. Plaintiff fails to explain how the production of documents establishing the number of vehicles manufactured by GM over the span of 6 years, without limitation, will tend to prove a fact that is of consequence in this action or with respect to the vehicle, battery type or design, or defects at issue here. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved on another ground in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)

The examples provided above are intended to be illustrative but not exhaustive with regard to the requests stated in RFP Nos. 28, 29, and 37. “Although the scope of civil discovery is broad, it is not limitless.” (Calcor, supra, 53 Cal.App.4th at p. 223.) For all reasons discussed above, RFP Nos. 28, 29, and 37 sweep within their purview different vehicles, batteries, vehicle components, and defects that may bear no relation to the claims at issue in the present action. Though “fishing expeditions” are permissible, there is no demonstrated good cause for the potentially unlimited demands stated in RFP Nos. 28, 29, and 37. (Id. at pp. 224-225.) For these reasons, plaintiff has failed to meet his burden.

RFP Nos. 38 through 42 suffer from the same scope problems further discussed above. These RFP request that GM produce “all” documents that evidence, relate, or refer to any complaints by owners or lessees of “2017 through 2022 model year Chevrolet Bolt vehicles” regarding the “battery”, “vehicle fires”, the “vehicles’ charging system”, or a “loss of power”. (Sep. Stmt. at pp. 14, 20, 21, 22.) These requests are not sufficiently narrowed to the battery, vehicle, or defects at issue here.

For example, RFP Nos. 38 through 42, collectively, potentially include complaints from consumers outside of California who own a different model year vehicle in which batteries or charging systems of a different type or design than the battery or charging system at issue here were installed. These RFP also include within their scope batteries that may have experienced problems or defects different in kind from the defect at issue here, and vehicle fires and loss of power issues that may have resulted from unspecified and therefore different origins. Plaintiff has failed to explain how complaints from consumers outside of California regarding different model year vehicles, batteries, or charging systems, or vehicle fires or a loss of power arising from different sources, are relevant to the vehicle, battery, components, or defects at issue in the present action. For these reasons, as RFP Nos. 38 through 42 are potentially unlimited in scope, plaintiff has failed to demonstrate good cause for the requests stated in RFP Nos. 38 through 42.

RFP No. 43 demands that GM produce all documents “sufficient to establish the number of 2017 through 2022 model year Chevrolet Bolt vehicles which have been repurchased or replaced” by GM. (Sep. Stmt. at p. 23.) In a similar fashion, RFP No. 43 requires the production of documents regarding the repurchase or replacement of vehicles spanning 6 model years without regard to whether the repurchase or replacement occurred in California or was related in any way to the same defects, vehicle, or battery at issue in the present action. For the same reasons further discussed above, plaintiff has wholly failed to demonstrate good cause for the request stated in RFP No. 43.

RFP Nos. 44 through 55 demand that GM produce all communications between GM and the National Highway Traffic Safety Administration (NHTSA) regarding “2017 through 2022” vehicles; NHTSA complaints in GM’s possession regarding these vehicles’ batteries and related systems; Early Warning Reports submitted to the NHTSA by GM regarding these vehicles without regard to the topic of any such reports; “Transportation Recall Enhancement, Accountability, and Documentation” or TREAD reports submitted by GM (without specifying to whom the TREAD reports were submitted or why); documents produced in “any lawsuit” by GM concerning defects in the battery and “related systems” of “2017 to 2022” model year vehicles; testing, analysis, investigations, or demonstrations concerning “possible defects” in the ”battery and related systems” or “vehicle fires” in these vehicles, whether performed by GM or another unspecified entity; communications between GM and its authorized repair facilities concerning the “battery” and “related systems” of these vehicles; communications between GM and “LG”, which term is undefined in the RFP, regarding the “batteries” or any investigation of the batteries by unspecified entities and without regard to whether the “battery” referenced is the same type or design as that installed in plaintiff’s vehicle or whether the investigation was of a similar or the same defect. (See Sep. Stmt. at pp. 29-61.)

RFP Nos. 44 through 55 are plagued by the same problems further discussed above. These RFP also relate to “2017 through 2022 model Chevrolet Bolt vehicles” without limitation in model year or geographic scope. These RFP also include within their scope all batteries and “related systems” notwithstanding whether the “battery” or “related systems” are of the same type or design as those installed in plaintiff’s vehicle or whether the vehicles described in these RFP experienced the same defects at issue in the present action.

Because the requests stated in RFP Nos. 44 through 55 are not appropriately directed to discovery relating to the defects, battery type or design, or the same model year as the vehicle at issue in the present action, among other things, these RFP are potentially unlimited in scope requiring GM to search for responsive documents without regard to whether these documents implicate or are in any relevant to the issues present in this matter. Therefore, for all reasons further discussed above, plaintiff has failed to demonstrate good cause for the demands stated in RFP Nos. 44 through 55.

RFP No. 56 demands the production of all documents which “refer, relate to or concern the investigations referenced in recall N212343880 involving ‘experts from GM and LG’ which identified the root cause of the battery defects in 2017 through 2022 model year Chevrolet Bolt vehicles.” (Sep. Stmt. at p. 61.) The demands stated in RFP Nos. 57 through 74 are also directed to “2017 through 2022” model year vehicles and demand the production of customer satisfaction notices issued by GM for these vehicles including the issuance of a “Customer Satisfaction Program” titled “18125 Loss of Propulsion High Voltage Battery Without Notification”, and several recalls purportedly issued by GM, including documents that contributed to the issuance of each recall. (Sep. Stmt. at pp. 68-80.)

Wholly absent from the separate statement is any information or evidence demonstrating that the customer satisfaction notices or recalls described in RFP Nos. 56 through 74 relate to the same model year vehicle, defects, or specific battery and battery components at issue in the present action. Moreover, apart from general and conclusory statements regarding the issuance of recalls or customer satisfaction notices by GM and how generally such recalls may demonstrate widespread defects, there is insufficient information offered in the separate statement, including the face of the RFP at issue, to permit the court to determine whether the recalls described in these RFP will tend to prove any fact that is of consequence in this action or with respect to the vehicle, battery type, and defects at issue in this action.

Furthermore, to the extent that attorney Le offers in her declaration information regarding recalls and customer satisfaction notices, or other matters described in RFP Nos. 56 through 74, Le has failed to demonstrate, apart from general and conclusory assertions, that she possesses personal knowledge of the matters offered or that these matters are of common knowledge. (See, generally, Evid. Code, §§ 702 & 720.) Furthermore, while an attorney is competent to recite events occurring during the course of the litigation, an attorney’s declaration based on an investigation of the facts is not competent. (See Donnelly v. Ayer (1986) 183 Cal.App.3d 978, 984.)

In addition, the information offered in the Le declaration is not included in the separate statement submitted in support of the RFP Motion. (Cal. Rules of Court, rule 3.1345(c).) Even if the court were to consider the information offered in the Le declaration, Le does not clearly differentiate between information alleged in the complaint and information outside of the complaint which is based on Le’s own investigation. The court is not obligated to review other materials which are not included in the separate statement to determine the merits of the RFP motion. (Cal. Rules of Court, rule 3.1345(c) [“[m]aterial must not be incorporated into the separate statement by reference”].) For this and all further reasons discussed above, plaintiff has failed to demonstrate good cause for the requests stated in RFP Nos. 56 through 74.

The same analysis applies to RFP Nos. 78 through 86, which also relate to “2017 through 2022” model year vehicles, without limitation to the model year at issue in the present action. (See Sep. Stmt. at pp. 86-99.) Plaintiff fails to sufficiently demonstrate good cause for the discovery sought in these RFP with respect to other model year vehicles. In addition, the battery issues, vehicle fires, and related warranty claims described in these RFP are not appropriately directed or narrowed to the same battery type or design installed in plaintiff’s vehicle, or the same defects, are potentially unlimited in geographic scope. For these reasons, plaintiff has failed to demonstrate good cause for the requests stated in RFP Nos. 78 through 86.

RFP Nos. 84 through 86 relate to the reprogramming of the “hybrid powertrain control module” in 2017-2022 model year vehicles. (Sep. Stmt. at pp. 97-99.) In the legal argument supporting these requests, plaintiff refers the court to the legal argument pertaining to RFP No. 80 which relates to failure rates of battery modules in 2017 through 2022 model year vehicles, without explaining whether the “hybrid powertrain control module” described in RFP Nos. 84 through 86 is the same component. Plaintiff wholly fails to explain the relevance of documents that relate to the reprogramming of a different vehicle component to the issues present in this action. In addition, these RFP include modules that may be of a different type or design as that installed in plaintiff’s vehicle. As plaintiff has failed to explain how RFP Nos. 84 through 86 are directed to the claims and issues in the present action, and for all reasons further discussed above, plaintiff has failed to demonstrate good cause for the discovery requested in RFP Nos. 84 through 86

The court also notes that, throughout the separate statement, plaintiff relies on Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946 (Anderson), Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334 (Santana), Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094 (Oregel), Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 (Doppes), and Donlen v. Ford (2013) 217 Cal.App.4th 138 (Donlen), to support plaintiff’s arguments that the is entitled to the discovery demanded in each of the RFP further discussed above. Plaintiff’s reliance on these cases is misplaced.

In Anderson, Santana, Oregel, Doppes, and Donlen, the documents and testimony addressed by the court and cited by plaintiff related directly to either the specific defect or component at issue in each case or specific visits to an authorized repair facility by plaintiff in each case. (See, e.g., Anderson, supra, 74 Cal.App.5th at pp. 956-957 & 970 [referring to evidence relating to specific engine and defects at issue]; Santana, supra, 56 Cal.App.5th at pp. 341-342 [discussion of defective “TPIM” installed in vehicle at issue]; Oregel, supra, 90 Cal.App.4th at pp. 1104-1105 [policies specific to the repair attempts and demands at issue]; Doppes, supra, 174 Cal.App.4th at pp. 973-974 [discussion of demand to produce documents at deposition which was specific to rust inhibitor used on vehicle at issue]; Donlen, supra, 217 Cal.App.4th at p. 154 [documents and testimony limited to the same transmission model installed in plaintiff’s vehicle]. However, and for all reasons discussed above, RFP Nos. 28, 29, 37 through 64, 67 through 70, 73, 74, and 78 through 86 are not so limited.

Notwithstanding plaintiff’s failure to meet his burden to demonstrate good cause for the discovery sought in RFP Nos. 28, 29, 37 through 64, 67 through 70, 73, 74, and 78 through 86, there exist deficiencies in the moving separate statement. A party is prohibited from incorporating material into a separate statement “by reference.” (Cal. Rules of Court, rule 3.1345(c).) Throughout the separate statement, in the statement of legal reasons to compel a further response to the RFP at issue, plaintiff consistently incorporates material relating to different RFP by reference. (See, e.g., Sep. Stmt. at p. 10 [incorporating legal argument for RFP No. 28 into legal argument for RFP No. 29]; p. 20 [incorporating legal argument for RFP No. 38 into legal argument for RFP No. 39]; p. 21 [same re RFP No. 40]; p. 22 [same re RFP No. 41]; p. 23 [same re RFP No. 42]; p. 36 [incorporating legal argument for RFP No. 44 into legal argument for RFP 45]; p. 37 [same]; p. 38 [same].) This is a sufficient additional ground on which the court may deny the RFP motion for reasons further discussed above.

The examples offered by the court herein are not intended to be exhaustive, and the court declines to issue an advisory opinion regarding the manner in which the RFP may be crafted or narrowed to avoid the issues described herein. For all reasons discussed above, plaintiff has failed to meet his burden to show good cause for the requests described in RFP Nos. 28, 29, 37 through 64, 67 through 70, 73, 74, and 78 through 86. Therefore, the court will deny the motion with respect to these RFP, without prejudice to a future procedurally and substantively appropriate motion to compel to the extent plaintiff further and appropriately narrows these requests in any future demand.

RFP No. 77:

RFP No. 77 requests the production of documents from GM’s technical hotline that “refer, relate to or concern communications between [GM] and [GM’s] authorized repair facilities regarding diagnosis and/or repairs involving the” vehicle. (Sep. Stmt. at p. 80.) As RFP No. 77 relates directly to the diagnosis and repair of the vehicle, the court finds that good causes exists for the discovery sought in this RFP.

GM objects to RFP No. 77 on the grounds that the request, including the terms “refer, relate to or concern,” “communications”, “authorized repair facilities”, and “diagnosis and/or repairs”, is “overbroad, vague and ambiguous”, that the request “seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence” and is not limited to the vehicle, that the request is “burdensome and oppressive, and that compliance would be unreasonably difficult and expensive considering the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation”, and that the request seeks “confidential, proprietary and trade secret information” and information protected by privilege. (Sep. Stmt. at p. pp. 80-81.)

To justify its objections to RFP No. 77, GM “incorporates the reasons why no further response to RFP No. 37 should be ordered. (Resp. Sep. Stmt. at p. 42.) As further discussed above, the incorporation of other arguments relating to a different request is improper. Further, RFP No. 37 demands production of documents regarding the number of “2017 through 2022” vehicles manufactured by GM. (Sep. Stmt. at p. 10.) Because RFP No. 37 relates to a wholly different subject matter, GM has failed to justify its objections to RFP No. 77. Therefore, the court will overrule the objections of GM to RFP No. 77 except as to those based on privilege.

The court will also order GM to provide a further response and produce documents responsive to RFP No. 77, without objections overruled herein. To the extent GM asserts objections in its further response to RFP No. 77 which are based on privilege, GM shall produce a privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [setting forth requirements for a proper privilege log].)

(3) Order To Show Cause

The court has reviewed counsel for plaintiff’s written declaration submitted in response to the court’s March 22, 2024, order to show cause. Based on counsel’s representations which appear to demonstrate an inadvertent error resulting in counsel’s failure to appear at a case management conference, the court will discharge the order to show cause. However, counsel is reminded of their obligation to appear at future hearings that may be ordered or scheduled by the court in this matter. Future failures to appear without good cause or substantial justification may result in the imposition of monetary sanctions under Code of Civil Procedure section 177.5. (See Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081.)