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1 JOURNEY LAW GROUP, INC. E-FILED
Guy Mizrahi, Esq. (SBN 220930) 5/5/2020 12:24 PM
2 Arya Malek, Esq. (SBN 325782) Superior Court of California
1762 Westwood Blvd, Suite 260 County of Fresno
3 Los Angeles, CA 90024 By: Sergio Lopez, Deputy
Telephone: 424.206.4303
4 Facsimile: 424.220.7388
5 Attorneys for Plaintiff, DARVETTA FORD
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF FRESNO, B.F. SISK COURTHOUSE
9 DARVETTA FORD, an individual, Case No. 19CECG02967
[Filed: August 15, 2019]
10
Plaintiff,
11 Hon. Alan Simpson
v. Dept. 502
12
13 GENERAL MOTORS LLC, a Delaware Limited PLAINTIFF’S REPLY TO DEFENDANT’S
Liability Company, and DOES 1 through 20, OPPOSITION TO MOTION TO COMPEL
14 inclusive, DEFENDANT’S FURTHER RESPONSES
TO REQUEST FOR PRODUCTION OF
15 DOCUMENTS (SET ONE)
Defendants.
16
[Concurrently filed with Plaintiff’s Evidentiary
17 Objections to Declaration of Cameron Major In
Support of Defendant’s Oppositions to Motion
18 to Compel Further Responses to Request for
Production of Documents]
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Date: May 13, 2020
21 Time: 3:30 p.m.
Dept: 502
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Trial: January 4, 2021
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 I. INTRODUCTION
2 Instead of refuting the existence of the documents sought by Plaintiff’s motion and need by
3 Plaintiff to prepare for trial, Defendant’s opposition is premised on the unsubstantiated claim that the
4 subject documents sought are irrelevant, that producing them would be too burdensome, and that
5 Defendant, not Plaintiff, should determine what information Plaintiff needs to prepare for trial.
6 (Opposition Brief at pp. 3-10; Declaration of Cameron Major, dated April 28, 2020, at ¶ 3.) The
7 truth—which Defendant implicitly concedes—is that Defendant is in possession of the responsive
8 documents and can produce them without any extraordinary amount of effort.
9 Plaintiff’s motion seeks three general categories of documents – (1) those relating to GM’s
10 knowledge, internal investigations, analysis and publications of the defects plaguing Plaintiff’s
11 Vehicle (Request Nos. 16-17, 28-29, 37-38 and 40-75); and (2) those relating to GM’s customer care,
12 warranty and vehicle repurchase policies, procedures, and practices (Request Nos. 10-12, 20 and 23-
13 26). These documents are probative to establish Defendant’s inability to repair Plaintiff’s 2015
14 Chevrolet Cruze and that it had knowledge of such inability, thereby justifying the imposition of a
15 civil penalty.
16 As to the first category, Defendant failed to offer even one scintilla of evidence demonstrating
17 an inability to produce the documents. It has not denied the existence of documents relating to internal
18 investigations of the cause of the defects involving the Vehicle’s engine system (or more likely, its
19 inability) to fix it. Defendant has also not denied the existence of electronic databases and e-mails by
20 its engineers and other personnel discussing the defects and alleged fixes. Defendant has further not
21 denied its failure to even search for such emails and/or databases. To support its baseless position to
22 preclude production, Defendant has offered the following evidence . . . absolutely nothing.
23 Defendant’s objection that Plaintiff’s requests for documents evidencing other complaints as
24 to the very same defects Plaintiff experienced in the subject vehicle is overbroad is also unavailing.
25 (See Opposition Brief at pp. 5-9.) For example, Request for Production Nos. 37-38 and 40-75
26 expressly set forth specific vehicle defects complained of by Plaintiff in this case (i.e., recurring defects
27 with the Vehicle’s engine system), such that Defendant’s “omnibus” and overbroad objection is
28 without merit.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 (Not so) shockingly, Defendant has not filed even a single declaration from anyone within its
2 organization explaining why conducting a search of its databases would be too difficult. The only
3 declaration offered by Defendant in support of its opposition to this motion is one by its counsel.
4 Defense Counsel’s declaration is completely devoid of any information substantiating
5 Defendant’s tenuous position that searching its databases is such a herculean task. The truth is,
6 in the era of Google searches and electronically stored information, locating and producing responsive
7 information is quite simple. The fact that Defendant has not produced a declaration from anyone
8 attesting to the contrary supports this truth. Frankly, all of Defendant’s responses and production were
9 deficient and incomplete. However, Defendant asserts that it was forced to file this opposition, and
10 that Plaintiff somehow did not meet and confer in good faith, is similarly without cause.
11 Between November 13, 2019 and December 10, 2019, Plaintiff sent Defendant three separate
12 meet and confer letters in an effort to resolve the matter without court intervention, but Defendant
13 refused to budge from its unmeritorious position. Defendant’s stonewalling tactics are the sole reason
14 for Plaintiff being forced to file this motion. Defendant’s insistence on a “Highly Confidential”
15 Protective Order is baseless and Defendant has taken no steps to meet its burden that such a high
16 degree of confidentiality is necessary. Plaintiff has offered to use the Los Angeles County Superior
17 Court Model Protective Order (Confidential Designation) to address any concerns with confidentiality
18 and privacy but Defendant refused. Additionally, Defendant asserts that Plaintiff ignored its offer to
19 participate in an informal discovery conference (See Opposition Brief at p. 3), but Plaintiff did in fact
20 request a Pretrial Discovery Conference from the Court in an effort to resolve the dispute informally.
21 However, the Court denied Plaintiff’s request for a Pretrial Discovery Motion, leaving Plaintiff with
22 no choice but to file its discovery motion. (See Malek Decl. at ¶¶ 21-22 and Exhibits T and U.)
23 As to the third category of documents regarding Defendant’s policies and procedures of
24 warranty repairs and repurchase requests, Defendant has again failed to substantiate its position. It
25 admits that the documents exist but alleges that they are not relevant. Defendant again failed to
26 substantiate the need for a highly confidential protective order in order to produce the responsive
27 documents. Plaintiff contacted Defendant directly on three separate occasions to seek assistance with
28 the defective Vehicle, however, despite Defendant’s specific knowledge of the Vehicle’s defect
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 service history, Defendant failed to repurchase Plaintiff’s defective Vehicle, resulting in the instant
2 lawsuit. Defendant’s policies and procedures regarding warranty repairs and repurchase requests are
3 probative to establish whether Defendant’s policies comply with the requirements of the Song-Beverly
4 Consumer Warranty Act and whether it followed those policies in declining to repurchase or replace
5 the defective Vehicle prior to filing suit. The documents directly relate to Defendant’s civil penalty
6 liability.
7 Given Defendant’s failure to meet its burden to support its objections that Plaintiff’s requests
8 are overbroad and burdensome, the Court must grant Plaintiff’s motion.
9 II. DEFENDANT’S ELECTRONIC DATABASES ARE EASILY SEARCHABLE AND
10 IT HAS FAILED TO OFFER ANY EVIDENCE TO THE CONTRARY
11 Defendant offers its simple theory as to why the Court should endorse its unjustified
12 withholding of relevant and responsive documents—complying with the requests would be too
13 burdensome. This unsubstantiated position could not be further from the truth as Defendant has not
14 offered a single piece of evidence supporting this objection. If— as it would like the Court to
15 believe—Defendant’s electronic databases are so difficult to search, why has Defendant not offered
16 any declarations from a single manager or database administrator explaining the structure of
17 its electronically stored information systems and the burden involved in searching through
18 them? If the burden is truly as titanic as Defendant claims, it would be simple to establish with a
19 detailed declaration by a GM representative with actual personal knowledge. “If weaker and less
20 satisfactory evidence is offered when itwas within the power of the party to produce stronger and
21 more satisfactory evidence, the evidence offered should be viewed with distrust.” (Evidence Code §
22 412.)
23 To show objectionable burden requires a declaration from the responding party specifying each
24 of the tasks required to answer each discovery request and the number of hours required to do those
25 tasks for each discovery request. (Coriell v. Superior Court (1974) 39 Cal. App. 3d 487, 493; Perkins
26 v. Superior Court (1981) 118 Cal. App. 3d 761, 764.) Generalization does not suffice. (Id.) “Many
27 hundreds of man-hours” and “approximately nine months” ‘is conclusory and not factual in character,”
28 and insufficient to show burden. (Id.)
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 Defendant’s failure to offer any evidence substantiating burden makes clear that Defendant
2 can gather and review documents responsive to the instant discovery requests, yet, without any
3 justification, it has failed to produce any such documents in this matter. The court in Krotin v. Porsche
4 Cars North America, Inc. (1995) 38 Cal.App.4th 294 addressed a defendant manufacturer’s claim that
5 the burden for looking through its own databases would be too great. The court in Krotin dismissed
6 the type of argument that Defendant uses here with the knowledge that these types of automated
7 systems exist in today’s workplace. Notably, the Krotin court reached its decision in 1995. Computer
8 systems and searchability have come a long way in the past 25 years.
9 III. CURRENT LAW GOVERNING THE PERMISSIBLE SCOPE OF DISCOVERY
10 IN SONG-BEVERLY ACTIONS REVEALS PLAINTIFF’S EFFORTS HAVE
11 MERIT AND THE DISCOVERY SOUGHT IS RELEVANT
12 The requested documents are relevant to Defendant’s good faith compliance with the Song-
13 Beverly Consumer Warranty Act, including breach of the express warranty and implied warranty of
14 merchantability. (Civil Code § 1791.1, 1793.2, 1794; Johnson v. Ford Motor Co. (2005) 35 Cal.4th
15 1191, 1198, 1199 (court in Song-Beverly Act litigation admitted evidence of Ford’s corporate policies
16 and practices regarding reacquisition of vehicles and issuance of credits for trade-ins); Oregel v.
17 American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104-1105 (internal company policies that
18 demonstrate hidden obstacles for consumer to obtain redress are admissible).
19 To the extent that certain requests do require information pertaining to other vehicles, the scope
20 of discovery at issue are defects experienced by other customers that are similar to Plaintiff’s. (Donlen
21 v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 143-144, 153 (evidence of special service bulletins
22 issued before plaintiff bought his truck and evidence of similar transmission problems in other trucks
23 were relevant and admissible); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978-
24 979, 986 (documents of warranty complaints, service histories, and employee records concerning the
25 subject transmission defect in all affected vehicles and the company’s responses and instructions re:
26 cure were discoverable and relevant to issue of Defendant’s good faith treatment of the problem).)
27 Defendant simply seeks to avoid the implications of these cases by attempting to dismiss them.
28 However, both cases outline discovery and admissible evidence in a Song-Beverly action. (Donlen,
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 217 Cal.App.4th at 154 (2013) (in Song-Beverly Consumer Warranty Act action, evidence of other
2 similar failures in the same component systems as in plaintiff’s vehicle is admissible); Doppes, 174
3 Cal.App.4th at 993-94 (in Song-Beverly Consumer Warranty Act action, defendant manufacturer's
4 intentional failure to produce discovery of other similar complaints in the same model vehicle as
5 plaintiff’s vehicle justified imposition of terminating sanctions).) Inherent in the fact that certain
6 information was determined by the courts in Donlen and Doppes to be admissible at trial is the fact
7 that at first such information would have been discoverable.
8 As stated by the Donlen court, and noticeably silent in Defendant's Opposition here, this type
9 of information sought “did not concern simply other vehicles,” “everything that applied to other
10 vehicles applied equally to plaintiff’s vehicle,” and “such evidence certainly was probative and
11 not unduly prejudicial.” (Donlen 2017 Cal.App.4th at 154-55) (emphasis added.) Defendant is a
12 sophisticated manufacturer of automobiles. It reasonably knows what documents and electronically
13 stored information exist concerning communications regarding the recurring defects with the
14 Vehicle’s engine systems and records relating to them. Rather than complying with its obligations,
15 Defendant simply dismissed and refused to produce any documents beyond the subject vehicle.
A. Further Responses on Requests Seeking Documents Evidencing Specific
16 Complained of Vehicle Defects Is Warranted, Necessary and Appropriate
17 (RFP 16-17, 28-29, 37-38 and 40-75)
In this action, Plaintiff must prove that Defendant failed to repair substantially impairing
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defects in the subject Vehicle after a reasonable number of repair attempts. (Oregel v. American Isuzu
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Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101). Evidence of Defendant’s internal investigations
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concerning a defect, evidence of Defendant's awareness of such a defect (through customer complaints
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and field reports), evidence of Defendant’s ability (or inability) to repair a defect, and evidence of
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Defendant’s awareness of unsuccessful repairs for a particular defect are all relevant and probative of
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whether Defendant was able to repair Plaintiff’s vehicle within a reasonable number of opportunities
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and whether Defendant is liable for civil penalty damages. Defendant’s uncovering of documented
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call logs between technicians at authorized dealerships contacting Defendant’s technical assistance
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hotline for assistance with complex repairs demonstrates that such internal documents do exist. These
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 documented call logs do not exist in a vacuum. Notwithstanding this clear relevance, Defendant has
2 advanced meritless objections which must be stricken, and further responses ordered.
3 Evidence of the same defect in same year, make and model vehicles, and Defendant’s internal
4 investigations and communications as to the repairs for these particular system defects, are entirely
5 admissible and, therefore, discoverable. (Donlen, 217 Cal.App.4th at 154 (holding expert testimony
6 of the same failures in other vehicles is not “unduly prejudicial” since testimony focused on same
7 transmission as installed on plaintiff’s vehicle and everything which expert “testified that applied to
8 other vehicles applied equally to plaintiffs vehicle”); Doppes, 174 Cal.App.4th at 973-76).)
9 Defendant’s unilaterally narrow construction of relevant evidence in a Song-Beverly Action is
10 simply incorrect. The sought-after evidence is probative of (1) whether the vehicle suffered from a
11 defect, (2) whether Defendant could repair it to conform to warranty within a reasonable number of
12 opportunities and (3) whether Defendant provided its repair facilities with sufficient literature and
13 parts to complete repairs during the warranty period. Under the facts of this case, Defendant’s repair
14 facilities have performed repairs according to different recalls and technical service bulletins relating
15 to the defects. Certainly, those documents do not arise without (1) awareness of a number of failures
16 in its vehicles, (2) assessment and investigation regarding the nature of the failure, (3) possible
17 consultations with the parts manufacturer(s) regarding the root cause of the failure and possible fixes,
18 (4) internal investigations regarding similar complaints for the same underlying failure, (5)
19 discussions, consultations, and collaborations to prepare and implement a repair procedure and (6)
20 ongoing observation and monitoring of the success of particular repair procedures. 1
21 Defendant’s objections all lack merit. It simply concluded that the requests were overbroad
22 without explaining the nature and scope, despite having had the opportunity to do so.
23 Moreover, Defendant’s Opposition makes its improper position abundantly clear: despite having
24 access to all the responsive documents, and despite acknowledging the existence of such documents,
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26 The internal investigations and email communications describe the nature of the defects, Defendant’s
understanding of the underlying root cause of the defects (if any had in fact been identified), Defendant’s efforts to create
a repair for the defects and the efficacy of those repairs (as tracked, analyzed and assessed by Defendant) – all of which
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are relevant to the questions of whether the subject vehicle suffered from a defect; whether that defect substantially impairs
use, value or safety; and whether Defendant could repair the vehicle after a reasonable number of attempts.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 Defendant simply believes it can unilaterally dictate the bounds of relevance to restrict Plaintiff’s
2 discovery to only what it wants to gather. However, objections based on irrelevancy and immateriality
3 to the issues of the case “cannot be used to deny discovery.” (Coy v. Super. Ct. (1962) 58 Cal.2d 210,
4 217.)
5 The documents sought by Plaintiff are also necessary to rebut any defenses that Defendant may
6 raise (e.g., the defect is not substantial; there is no safety risks from the defect; the repair procedures
7 were effective; it believed in good faith that it was not required to buyback the vehicle, etc.). (Sherman
8 v. Kinetic Concepts, Inc. (1998) 67 Cal.4th 1152, 1162-63 (where plaintiffs did not discover
9 manufacturer’s nondisclosure of material internal documents of other complaints until after an adverse
10 jury verdict, the case was remanded for new trial and manufacturer ordered to pay monetary sanctions
11 for plaintiff’s costs (including attorneys’ fees) of the first trial.)) 2
12 Defendant has not explained whether it conducted any email searches for relevant, responsive
13 emails relating to the defects in its other same year, make and model vehicles. Simply put, it has not
14 and has instead elected to interject boilerplate meritless objections. Indeed, the very existence of such
15 information (of other repeated failures and ongoing investigations relating to the defects in other same
16 year, make and model vehicles would certainly be probative of whether Defendant did, in fact, have a
17 good faith belief that it was not obligated to repurchase Plaintiff’s vehicle. (Kwan v. Mercedes-Benz
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19 2 In remanding for new trial, the appellate court noted:
20 [Defendant’s] continuing disregard of its discovery obligations, as well as its witnesses’ utter lack of candor, if not
outright lies, at trial, clearly entitled [plaintiffs] to sanctions. [Defendant] and, we learned at oral argument, its trial
21 counsel, intentionally concealed material information from [plaintiffs], the trial court and the jury regarding a multitude
of prior incidents similar to the subject incident. Through its deception in discovery and in the testimony of its
22 corporate witnesses at trial, [defendant] held up a grossly distorted picture which [plaintiffs] were powerless to
bring into true focus. It intentionally concealed two dozen (and perhaps more-see fn. 4, ante) incidents of escaping
23 silicon beads significantly bearing on [plaintiffs’] issues of prior notice, foreseeability, control and failure to warn.
It
deprived [plaintiffs] of the opportunity to develop their case by contacting other parties with firsthand knowledge of the
24 incidents.
25 [Defendant], not the least bit abashed even on appeal, admits it had the evidence allthe time and withheld it
throughout the proceedings because, in its opinion, the reports were irrelevant or cumulative or potentially
26 privileged or otherwise inadmissible. How dare [defendant] and its attorneys play judge and jury in the trial court and
then come before this court and argue the propriety of that utterly indefensible conduct! We are appalled that but for a
27 fluke phone call from a Texas attorney, [plaintiffs] would have remained forever unaware they had been cheated out of a
fair trial.
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67 Cal. 4th at 1162. (emphasis added).
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 of N. Am., Inc. (1994) 23 Cal.App.4th 174, 185-86 (“A decision made without the use of reasonably
2 available information germane to that decision is not a reasonable, good faith decision.”); Colonial
3 Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 792 (“Other instances of alleged [unlawful
4 conduct] may also be highly relevant to plaintiff’s claim for punitive damages.”)) Accordingly,
5 Plaintiff requests the Court reaffirm the broad scope of discovery and order Defendant to provide
6 further responses.
B. Further Responses on Categories Seeking Documents Regarding Warranty, Lemon
7 Law and Vehicle Repurchase Policies Are Warranted, Necessary and Appropriate
8 (Request Nos. 10-12, 20 and 23-26)
Plaintiff may also recover civil penalty damages upon a showing that Defendant willfully failed
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to abide by any of its obligations under the Song-Beverly Consumer Warranty Act. (Cal. Civ. Code
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§ 1794(c).) Defendant is under an affirmative obligation to abide by the terms of the Act, including
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the duty to replace or repurchase a vehicle after a reasonable number of repair attempts or within thirty
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(30) days if not repaired. (Lukather v. Gen. Motors, LLC (2010) 181 Cal.App.4th 1041, 1050.)
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Evidence that Defendant has “adopted internal policies that erected hidden obstacles to the ability of
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an unwary consumer to obtain redress under the Act" supports a finding of civil penalty liability.
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(Oregel, 90 Cal.App.4th at 1105.) A manufacturer may not escape civil penalty liability by
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“deliberately remaining ignorant of the facts” which establish its responsibility to act under the Song
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Beverly Consumer Warranty Act. (Kwan, 23 Cal.App.4th at 185.) Defendant has failed to produce
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any responsive documents regarding its warranty and repurchase/replacement policies and procedures.
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There is no dispute that the documents exist. They are clearly relevant to Plaintiff’s allegations and
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Defendant’s civil penalty exposure.
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IV. DEFENDANT’S OPPOSITION FAILS TO ESTABLISH PLAINTIFF’S REQUESTS
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IMPERMISSIBLY SEEK TRADE SECRET MATERIAL
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Defendant’s trade secret/confidentiality objections are unavailing given Plaintiff’s proposal
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to enter into a protective order. (C.C.P. §2031.060(b); Alch v. Super. Ct., 165 Cal.App.4th 1412,
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1427.) Similarly, Defendant’s attorney client privilege objections lack merit given Defendant’s
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failure to set forth supporting facts or produce any privilege log. (Code of Civil Procedure §
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2031.240(c)(1) (attorney-client privilege objection must “provide sufficient factual information for
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 other parties to evaluate the merits of that claim, including, ifnecessary, a privilege log”); TBG
2 Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443 (unless there is a legitimate
3 privilege, the moving party’s burden is met simply by a showing or relevance). Furthermore,
4 Defendant’s opposition p. 9 reference to the Declaration of Huizen Lu which is purportedly attached
5 thereto as Exhibit 4 is improper. There is no Declaration of Huizen Lu attached, nor did Defendant
6 attach any Exhibits labeled as 1, 2, 3 or 4. Defendant has failed to meet its burden of establishing the
7 documents requested as trade secret material. As a result, Plaintiff’s Requests are permissible, and
8 the Court should order Defendant to provide further responses.
9 V. PLAINTIFF’S MEET AND CONFER EFFORTS WERE SUFFICIENT
10 Defendant’s opposition demonstrates why this motion was necessary. Despite Plaintiff’s
11 efforts and numerous meet and confer letters, Defendant failed to make supplemental production or
12 otherwise engage in a meaningful meet and confer which would have averted this motion. Plaintiff is
13 not required to engage in further meet and confer efforts where it is clear that doing so would bear no
14 fruit. (See Malek, dated February 26, 2020 at ¶ 23; Clemente v. Allegre (2009) 177 Cal.App.4th 1277,
15 1293-1294.) Plaintiff had no choice other than filing the motion. Tellingly, Defendant’s opposition
16 makes clear that it has no intention of producing the responsive documents.
17 VI. DEFENDANT’S RELIANCE ON UNRELATED TRIAL COURT RULINGS FROM
18 OTHER COUNTIES IS IMPROPER AND MUST BE DISREGARDED
19 In a desperate attempt to sway this Court of its unmeritorious position, Defendant offers two
20 transcripts from trial courts in Los Angeles county involving unrelated motions filed by different
21 parties and different counsel. (See Major Decl. at Exhibits B and C.)3 This tactic is improper as trial
22 courts do not make binding precedents. Santa Ana Hospital Medical Center v. Belshe (1997) 56
23 Cal.App.4th 819, 831; King v. Order of United Commercial Travelers (1948) 333 U.S. 153, 160-61.
24 Furthermore, the transcripts are uncertified and unreliable even if they were binding precedent.
25 Finally, Defendant has failed to establish how the discovery dispute in this case relates to the dispute
26 in either of the trial court cases. Both cases involved different parties and different counsel. There is
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28 In GM’s Opposition on p. 9, Defendant refers to one of the transcripts as Exhibit 2; however, in Cameron Major’s
Declaration in support of GM’s opposition it is attached as Exhibit C.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
1 no evidence whatsoever that any of the issues in the Los Angeles County trial court cases relate to the
2 instant matter. This so-called “evidence” must be disregarded.
3 VII. CONCLUSION
4 For the foregoing reasons, as well as the reasons set forth in Plaintiff’s motion, Plaintiff
5 respectfully requests an order compelling Defendant to provide supplemental verified responses and
6 produce the corresponding documents as to Plaintiff’s Request for Production of Documents (Set
7 One), numbers 10-12, 16-17, 20, 23-26, 28-29, 37-38 and 40-75.
8
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Date: May 5, 2020 JOURNEY LAW GROUP, INC.
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By: ____________________________
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Guy Mizrahi, Esq.
13 Arya Malek, Esq.
Attorneys for Plaintiff,
14 DARVETTA FORD
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S
FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)
PROOF OF SERVICE
1
2 STATE OF CALIFORNIA )
) ss.
3 COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 1762 Westwood Blvd., Suite 260, Los
5
Angeles, CA 90024.
6 On May 5, 2020, I served, in the manner indicated below, the foregoing document described
as: PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL
7 DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF
DOCUMENTS (SET ONE) on the interested parties in this action by placing true copies thereof,
8 enclosed in sealed envelopes, in Los Angeles, CA addressed as follows:
9 [SEE ATTACHED SERVICE LIST]
10
BY OVERNIGHT DELIVERY: I caused such envelopes to be delivered by courier, with next day
11 [ ] service, to the offices of the addressees. (C.C.P. §1013(c)(d).)
12 BY FACSIMILE: (C.C.P. § 1013(e)(f).)
[ ]
13 BY MAIL: I caused to be delivered by U.S. mail by placing a true copy thereof enclosed in sealed
14 envelopes addressed as stated above. I am “readily familiar” with the firm’s practice of collection
[ ]
and processing documents for mailing. Under that practice it would be deposited with the U.S. postal
15 service on that same day with postage thereon fully prepaid in the ordinary course of business.
16 BY PERSONAL SERVICE: I caused such envelopes to be delivered by hand to the offices of the
addressees. (C.C.P. § 1011(a)(b).)
[ ]
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BY ELECTRONIC MAIL: I transmitted such document from Los Angeles, California, to the
18 [X]
electronic mail address maintained by the person(s) on the SERVICE LIST as last indicated by that
person on a document that he or she has filed in the above-entitled cause and served on this party.
19 C.C.P. §1010.6 (a)(6).)
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I declare under penalty of perjury under the laws of the State of California that the above is
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true and correct.
22 Executed on May 5, 2020, in Los Angeles, California.
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24 ________________________________________
25 Virginia Walls
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PROOF OF SERVICE
PROOF OF SERVICE LIST
1 FORD v. GENERAL MOTORS LLC
2 Case No. 19CECG02967
Page 1
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4 Cameron Major, Esq. Attorneys for Defendant,
THE ERSKINE LAW GROUP, PC GENERAL MOTORS LLC
5 1576 N. Batavia Street, Suite A
Orange, CA 92867
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PROOF OF SERVICE
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1 JOURNEY LAW GROUP, INC. E-FILED Guy Mizrahi, Esq. (SBN 220930) 5/5/2020 12:24 PM 2 Arya Malek, Esq. (SBN 325782) Superior Court of California 1762 Westwood Blvd, Suite 260 County of Fresno 3 Los Angeles, CA 90024 By: Sergio Lopez, Deputy Telephone: 424.206.4303 4 Facsimile: 424.220.7388 5 Attorneys for Plaintiff, DARVETTA FORD 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF FRESNO, B.F. SISK COURTHOUSE 9 DARVETTA FORD, an individual, Case No. 19CECG02967 [Filed: August 15, 2019] 10 Plaintiff, 11 Hon. Alan Simpson v. Dept. 502 12 13 GENERAL MOTORS LLC, a Delaware Limited PLAINTIFF’S REPLY TO DEFENDANT’S Liability Company, and DOES 1 through 20, OPPOSITION TO MOTION TO COMPEL 14 inclusive, DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF 15 DOCUMENTS (SET ONE) Defendants. 16 [Concurrently filed with Plaintiff’s Evidentiary 17 Objections to Declaration of Cameron Major In Support of Defendant’s Oppositions to Motion 18 to Compel Further Responses to Request for Production of Documents] 19 20 Date: May 13, 2020 21 Time: 3:30 p.m. Dept: 502 22 Trial: January 4, 2021 23 /// 24 /// 25 /// 26 /// 27 // 28 -i- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 I. INTRODUCTION 2 Instead of refuting the existence of the documents sought by Plaintiff’s motion and need by 3 Plaintiff to prepare for trial, Defendant’s opposition is premised on the unsubstantiated claim that the 4 subject documents sought are irrelevant, that producing them would be too burdensome, and that 5 Defendant, not Plaintiff, should determine what information Plaintiff needs to prepare for trial. 6 (Opposition Brief at pp. 3-10; Declaration of Cameron Major, dated April 28, 2020, at ¶ 3.) The 7 truth—which Defendant implicitly concedes—is that Defendant is in possession of the responsive 8 documents and can produce them without any extraordinary amount of effort. 9 Plaintiff’s motion seeks three general categories of documents – (1) those relating to GM’s 10 knowledge, internal investigations, analysis and publications of the defects plaguing Plaintiff’s 11 Vehicle (Request Nos. 16-17, 28-29, 37-38 and 40-75); and (2) those relating to GM’s customer care, 12 warranty and vehicle repurchase policies, procedures, and practices (Request Nos. 10-12, 20 and 23- 13 26). These documents are probative to establish Defendant’s inability to repair Plaintiff’s 2015 14 Chevrolet Cruze and that it had knowledge of such inability, thereby justifying the imposition of a 15 civil penalty. 16 As to the first category, Defendant failed to offer even one scintilla of evidence demonstrating 17 an inability to produce the documents. It has not denied the existence of documents relating to internal 18 investigations of the cause of the defects involving the Vehicle’s engine system (or more likely, its 19 inability) to fix it. Defendant has also not denied the existence of electronic databases and e-mails by 20 its engineers and other personnel discussing the defects and alleged fixes. Defendant has further not 21 denied its failure to even search for such emails and/or databases. To support its baseless position to 22 preclude production, Defendant has offered the following evidence . . . absolutely nothing. 23 Defendant’s objection that Plaintiff’s requests for documents evidencing other complaints as 24 to the very same defects Plaintiff experienced in the subject vehicle is overbroad is also unavailing. 25 (See Opposition Brief at pp. 5-9.) For example, Request for Production Nos. 37-38 and 40-75 26 expressly set forth specific vehicle defects complained of by Plaintiff in this case (i.e., recurring defects 27 with the Vehicle’s engine system), such that Defendant’s “omnibus” and overbroad objection is 28 without merit. -1- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 (Not so) shockingly, Defendant has not filed even a single declaration from anyone within its 2 organization explaining why conducting a search of its databases would be too difficult. The only 3 declaration offered by Defendant in support of its opposition to this motion is one by its counsel. 4 Defense Counsel’s declaration is completely devoid of any information substantiating 5 Defendant’s tenuous position that searching its databases is such a herculean task. The truth is, 6 in the era of Google searches and electronically stored information, locating and producing responsive 7 information is quite simple. The fact that Defendant has not produced a declaration from anyone 8 attesting to the contrary supports this truth. Frankly, all of Defendant’s responses and production were 9 deficient and incomplete. However, Defendant asserts that it was forced to file this opposition, and 10 that Plaintiff somehow did not meet and confer in good faith, is similarly without cause. 11 Between November 13, 2019 and December 10, 2019, Plaintiff sent Defendant three separate 12 meet and confer letters in an effort to resolve the matter without court intervention, but Defendant 13 refused to budge from its unmeritorious position. Defendant’s stonewalling tactics are the sole reason 14 for Plaintiff being forced to file this motion. Defendant’s insistence on a “Highly Confidential” 15 Protective Order is baseless and Defendant has taken no steps to meet its burden that such a high 16 degree of confidentiality is necessary. Plaintiff has offered to use the Los Angeles County Superior 17 Court Model Protective Order (Confidential Designation) to address any concerns with confidentiality 18 and privacy but Defendant refused. Additionally, Defendant asserts that Plaintiff ignored its offer to 19 participate in an informal discovery conference (See Opposition Brief at p. 3), but Plaintiff did in fact 20 request a Pretrial Discovery Conference from the Court in an effort to resolve the dispute informally. 21 However, the Court denied Plaintiff’s request for a Pretrial Discovery Motion, leaving Plaintiff with 22 no choice but to file its discovery motion. (See Malek Decl. at ¶¶ 21-22 and Exhibits T and U.) 23 As to the third category of documents regarding Defendant’s policies and procedures of 24 warranty repairs and repurchase requests, Defendant has again failed to substantiate its position. It 25 admits that the documents exist but alleges that they are not relevant. Defendant again failed to 26 substantiate the need for a highly confidential protective order in order to produce the responsive 27 documents. Plaintiff contacted Defendant directly on three separate occasions to seek assistance with 28 the defective Vehicle, however, despite Defendant’s specific knowledge of the Vehicle’s defect -2- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 service history, Defendant failed to repurchase Plaintiff’s defective Vehicle, resulting in the instant 2 lawsuit. Defendant’s policies and procedures regarding warranty repairs and repurchase requests are 3 probative to establish whether Defendant’s policies comply with the requirements of the Song-Beverly 4 Consumer Warranty Act and whether it followed those policies in declining to repurchase or replace 5 the defective Vehicle prior to filing suit. The documents directly relate to Defendant’s civil penalty 6 liability. 7 Given Defendant’s failure to meet its burden to support its objections that Plaintiff’s requests 8 are overbroad and burdensome, the Court must grant Plaintiff’s motion. 9 II. DEFENDANT’S ELECTRONIC DATABASES ARE EASILY SEARCHABLE AND 10 IT HAS FAILED TO OFFER ANY EVIDENCE TO THE CONTRARY 11 Defendant offers its simple theory as to why the Court should endorse its unjustified 12 withholding of relevant and responsive documents—complying with the requests would be too 13 burdensome. This unsubstantiated position could not be further from the truth as Defendant has not 14 offered a single piece of evidence supporting this objection. If— as it would like the Court to 15 believe—Defendant’s electronic databases are so difficult to search, why has Defendant not offered 16 any declarations from a single manager or database administrator explaining the structure of 17 its electronically stored information systems and the burden involved in searching through 18 them? If the burden is truly as titanic as Defendant claims, it would be simple to establish with a 19 detailed declaration by a GM representative with actual personal knowledge. “If weaker and less 20 satisfactory evidence is offered when itwas within the power of the party to produce stronger and 21 more satisfactory evidence, the evidence offered should be viewed with distrust.” (Evidence Code § 22 412.) 23 To show objectionable burden requires a declaration from the responding party specifying each 24 of the tasks required to answer each discovery request and the number of hours required to do those 25 tasks for each discovery request. (Coriell v. Superior Court (1974) 39 Cal. App. 3d 487, 493; Perkins 26 v. Superior Court (1981) 118 Cal. App. 3d 761, 764.) Generalization does not suffice. (Id.) “Many 27 hundreds of man-hours” and “approximately nine months” ‘is conclusory and not factual in character,” 28 and insufficient to show burden. (Id.) -3- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 Defendant’s failure to offer any evidence substantiating burden makes clear that Defendant 2 can gather and review documents responsive to the instant discovery requests, yet, without any 3 justification, it has failed to produce any such documents in this matter. The court in Krotin v. Porsche 4 Cars North America, Inc. (1995) 38 Cal.App.4th 294 addressed a defendant manufacturer’s claim that 5 the burden for looking through its own databases would be too great. The court in Krotin dismissed 6 the type of argument that Defendant uses here with the knowledge that these types of automated 7 systems exist in today’s workplace. Notably, the Krotin court reached its decision in 1995. Computer 8 systems and searchability have come a long way in the past 25 years. 9 III. CURRENT LAW GOVERNING THE PERMISSIBLE SCOPE OF DISCOVERY 10 IN SONG-BEVERLY ACTIONS REVEALS PLAINTIFF’S EFFORTS HAVE 11 MERIT AND THE DISCOVERY SOUGHT IS RELEVANT 12 The requested documents are relevant to Defendant’s good faith compliance with the Song- 13 Beverly Consumer Warranty Act, including breach of the express warranty and implied warranty of 14 merchantability. (Civil Code § 1791.1, 1793.2, 1794; Johnson v. Ford Motor Co. (2005) 35 Cal.4th 15 1191, 1198, 1199 (court in Song-Beverly Act litigation admitted evidence of Ford’s corporate policies 16 and practices regarding reacquisition of vehicles and issuance of credits for trade-ins); Oregel v. 17 American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104-1105 (internal company policies that 18 demonstrate hidden obstacles for consumer to obtain redress are admissible). 19 To the extent that certain requests do require information pertaining to other vehicles, the scope 20 of discovery at issue are defects experienced by other customers that are similar to Plaintiff’s. (Donlen 21 v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 143-144, 153 (evidence of special service bulletins 22 issued before plaintiff bought his truck and evidence of similar transmission problems in other trucks 23 were relevant and admissible); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978- 24 979, 986 (documents of warranty complaints, service histories, and employee records concerning the 25 subject transmission defect in all affected vehicles and the company’s responses and instructions re: 26 cure were discoverable and relevant to issue of Defendant’s good faith treatment of the problem).) 27 Defendant simply seeks to avoid the implications of these cases by attempting to dismiss them. 28 However, both cases outline discovery and admissible evidence in a Song-Beverly action. (Donlen, -4- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 217 Cal.App.4th at 154 (2013) (in Song-Beverly Consumer Warranty Act action, evidence of other 2 similar failures in the same component systems as in plaintiff’s vehicle is admissible); Doppes, 174 3 Cal.App.4th at 993-94 (in Song-Beverly Consumer Warranty Act action, defendant manufacturer's 4 intentional failure to produce discovery of other similar complaints in the same model vehicle as 5 plaintiff’s vehicle justified imposition of terminating sanctions).) Inherent in the fact that certain 6 information was determined by the courts in Donlen and Doppes to be admissible at trial is the fact 7 that at first such information would have been discoverable. 8 As stated by the Donlen court, and noticeably silent in Defendant's Opposition here, this type 9 of information sought “did not concern simply other vehicles,” “everything that applied to other 10 vehicles applied equally to plaintiff’s vehicle,” and “such evidence certainly was probative and 11 not unduly prejudicial.” (Donlen 2017 Cal.App.4th at 154-55) (emphasis added.) Defendant is a 12 sophisticated manufacturer of automobiles. It reasonably knows what documents and electronically 13 stored information exist concerning communications regarding the recurring defects with the 14 Vehicle’s engine systems and records relating to them. Rather than complying with its obligations, 15 Defendant simply dismissed and refused to produce any documents beyond the subject vehicle. A. Further Responses on Requests Seeking Documents Evidencing Specific 16 Complained of Vehicle Defects Is Warranted, Necessary and Appropriate 17 (RFP 16-17, 28-29, 37-38 and 40-75) In this action, Plaintiff must prove that Defendant failed to repair substantially impairing 18 defects in the subject Vehicle after a reasonable number of repair attempts. (Oregel v. American Isuzu 19 Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101). Evidence of Defendant’s internal investigations 20 concerning a defect, evidence of Defendant's awareness of such a defect (through customer complaints 21 and field reports), evidence of Defendant’s ability (or inability) to repair a defect, and evidence of 22 Defendant’s awareness of unsuccessful repairs for a particular defect are all relevant and probative of 23 whether Defendant was able to repair Plaintiff’s vehicle within a reasonable number of opportunities 24 and whether Defendant is liable for civil penalty damages. Defendant’s uncovering of documented 25 call logs between technicians at authorized dealerships contacting Defendant’s technical assistance 26 hotline for assistance with complex repairs demonstrates that such internal documents do exist. These 27 28 -5- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 documented call logs do not exist in a vacuum. Notwithstanding this clear relevance, Defendant has 2 advanced meritless objections which must be stricken, and further responses ordered. 3 Evidence of the same defect in same year, make and model vehicles, and Defendant’s internal 4 investigations and communications as to the repairs for these particular system defects, are entirely 5 admissible and, therefore, discoverable. (Donlen, 217 Cal.App.4th at 154 (holding expert testimony 6 of the same failures in other vehicles is not “unduly prejudicial” since testimony focused on same 7 transmission as installed on plaintiff’s vehicle and everything which expert “testified that applied to 8 other vehicles applied equally to plaintiffs vehicle”); Doppes, 174 Cal.App.4th at 973-76).) 9 Defendant’s unilaterally narrow construction of relevant evidence in a Song-Beverly Action is 10 simply incorrect. The sought-after evidence is probative of (1) whether the vehicle suffered from a 11 defect, (2) whether Defendant could repair it to conform to warranty within a reasonable number of 12 opportunities and (3) whether Defendant provided its repair facilities with sufficient literature and 13 parts to complete repairs during the warranty period. Under the facts of this case, Defendant’s repair 14 facilities have performed repairs according to different recalls and technical service bulletins relating 15 to the defects. Certainly, those documents do not arise without (1) awareness of a number of failures 16 in its vehicles, (2) assessment and investigation regarding the nature of the failure, (3) possible 17 consultations with the parts manufacturer(s) regarding the root cause of the failure and possible fixes, 18 (4) internal investigations regarding similar complaints for the same underlying failure, (5) 19 discussions, consultations, and collaborations to prepare and implement a repair procedure and (6) 20 ongoing observation and monitoring of the success of particular repair procedures. 1 21 Defendant’s objections all lack merit. It simply concluded that the requests were overbroad 22 without explaining the nature and scope, despite having had the opportunity to do so. 23 Moreover, Defendant’s Opposition makes its improper position abundantly clear: despite having 24 access to all the responsive documents, and despite acknowledging the existence of such documents, 25 1 26 The internal investigations and email communications describe the nature of the defects, Defendant’s understanding of the underlying root cause of the defects (if any had in fact been identified), Defendant’s efforts to create a repair for the defects and the efficacy of those repairs (as tracked, analyzed and assessed by Defendant) – all of which 27 are relevant to the questions of whether the subject vehicle suffered from a defect; whether that defect substantially impairs use, value or safety; and whether Defendant could repair the vehicle after a reasonable number of attempts. 28 -6- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 Defendant simply believes it can unilaterally dictate the bounds of relevance to restrict Plaintiff’s 2 discovery to only what it wants to gather. However, objections based on irrelevancy and immateriality 3 to the issues of the case “cannot be used to deny discovery.” (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 4 217.) 5 The documents sought by Plaintiff are also necessary to rebut any defenses that Defendant may 6 raise (e.g., the defect is not substantial; there is no safety risks from the defect; the repair procedures 7 were effective; it believed in good faith that it was not required to buyback the vehicle, etc.). (Sherman 8 v. Kinetic Concepts, Inc. (1998) 67 Cal.4th 1152, 1162-63 (where plaintiffs did not discover 9 manufacturer’s nondisclosure of material internal documents of other complaints until after an adverse 10 jury verdict, the case was remanded for new trial and manufacturer ordered to pay monetary sanctions 11 for plaintiff’s costs (including attorneys’ fees) of the first trial.)) 2 12 Defendant has not explained whether it conducted any email searches for relevant, responsive 13 emails relating to the defects in its other same year, make and model vehicles. Simply put, it has not 14 and has instead elected to interject boilerplate meritless objections. Indeed, the very existence of such 15 information (of other repeated failures and ongoing investigations relating to the defects in other same 16 year, make and model vehicles would certainly be probative of whether Defendant did, in fact, have a 17 good faith belief that it was not obligated to repurchase Plaintiff’s vehicle. (Kwan v. Mercedes-Benz 18 19 2 In remanding for new trial, the appellate court noted: 20 [Defendant’s] continuing disregard of its discovery obligations, as well as its witnesses’ utter lack of candor, if not outright lies, at trial, clearly entitled [plaintiffs] to sanctions. [Defendant] and, we learned at oral argument, its trial 21 counsel, intentionally concealed material information from [plaintiffs], the trial court and the jury regarding a multitude of prior incidents similar to the subject incident. Through its deception in discovery and in the testimony of its 22 corporate witnesses at trial, [defendant] held up a grossly distorted picture which [plaintiffs] were powerless to bring into true focus. It intentionally concealed two dozen (and perhaps more-see fn. 4, ante) incidents of escaping 23 silicon beads significantly bearing on [plaintiffs’] issues of prior notice, foreseeability, control and failure to warn. It deprived [plaintiffs] of the opportunity to develop their case by contacting other parties with firsthand knowledge of the 24 incidents. 25 [Defendant], not the least bit abashed even on appeal, admits it had the evidence allthe time and withheld it throughout the proceedings because, in its opinion, the reports were irrelevant or cumulative or potentially 26 privileged or otherwise inadmissible. How dare [defendant] and its attorneys play judge and jury in the trial court and then come before this court and argue the propriety of that utterly indefensible conduct! We are appalled that but for a 27 fluke phone call from a Texas attorney, [plaintiffs] would have remained forever unaware they had been cheated out of a fair trial. 28 67 Cal. 4th at 1162. (emphasis added). -7- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 of N. Am., Inc. (1994) 23 Cal.App.4th 174, 185-86 (“A decision made without the use of reasonably 2 available information germane to that decision is not a reasonable, good faith decision.”); Colonial 3 Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 792 (“Other instances of alleged [unlawful 4 conduct] may also be highly relevant to plaintiff’s claim for punitive damages.”)) Accordingly, 5 Plaintiff requests the Court reaffirm the broad scope of discovery and order Defendant to provide 6 further responses. B. Further Responses on Categories Seeking Documents Regarding Warranty, Lemon 7 Law and Vehicle Repurchase Policies Are Warranted, Necessary and Appropriate 8 (Request Nos. 10-12, 20 and 23-26) Plaintiff may also recover civil penalty damages upon a showing that Defendant willfully failed 9 to abide by any of its obligations under the Song-Beverly Consumer Warranty Act. (Cal. Civ. Code 10 § 1794(c).) Defendant is under an affirmative obligation to abide by the terms of the Act, including 11 the duty to replace or repurchase a vehicle after a reasonable number of repair attempts or within thirty 12 (30) days if not repaired. (Lukather v. Gen. Motors, LLC (2010) 181 Cal.App.4th 1041, 1050.) 13 Evidence that Defendant has “adopted internal policies that erected hidden obstacles to the ability of 14 an unwary consumer to obtain redress under the Act" supports a finding of civil penalty liability. 15 (Oregel, 90 Cal.App.4th at 1105.) A manufacturer may not escape civil penalty liability by 16 “deliberately remaining ignorant of the facts” which establish its responsibility to act under the Song 17 Beverly Consumer Warranty Act. (Kwan, 23 Cal.App.4th at 185.) Defendant has failed to produce 18 any responsive documents regarding its warranty and repurchase/replacement policies and procedures. 19 There is no dispute that the documents exist. They are clearly relevant to Plaintiff’s allegations and 20 Defendant’s civil penalty exposure. 21 IV. DEFENDANT’S OPPOSITION FAILS TO ESTABLISH PLAINTIFF’S REQUESTS 22 IMPERMISSIBLY SEEK TRADE SECRET MATERIAL 23 Defendant’s trade secret/confidentiality objections are unavailing given Plaintiff’s proposal 24 to enter into a protective order. (C.C.P. §2031.060(b); Alch v. Super. Ct., 165 Cal.App.4th 1412, 25 1427.) Similarly, Defendant’s attorney client privilege objections lack merit given Defendant’s 26 failure to set forth supporting facts or produce any privilege log. (Code of Civil Procedure § 27 2031.240(c)(1) (attorney-client privilege objection must “provide sufficient factual information for 28 -8- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 other parties to evaluate the merits of that claim, including, ifnecessary, a privilege log”); TBG 2 Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443 (unless there is a legitimate 3 privilege, the moving party’s burden is met simply by a showing or relevance). Furthermore, 4 Defendant’s opposition p. 9 reference to the Declaration of Huizen Lu which is purportedly attached 5 thereto as Exhibit 4 is improper. There is no Declaration of Huizen Lu attached, nor did Defendant 6 attach any Exhibits labeled as 1, 2, 3 or 4. Defendant has failed to meet its burden of establishing the 7 documents requested as trade secret material. As a result, Plaintiff’s Requests are permissible, and 8 the Court should order Defendant to provide further responses. 9 V. PLAINTIFF’S MEET AND CONFER EFFORTS WERE SUFFICIENT 10 Defendant’s opposition demonstrates why this motion was necessary. Despite Plaintiff’s 11 efforts and numerous meet and confer letters, Defendant failed to make supplemental production or 12 otherwise engage in a meaningful meet and confer which would have averted this motion. Plaintiff is 13 not required to engage in further meet and confer efforts where it is clear that doing so would bear no 14 fruit. (See Malek, dated February 26, 2020 at ¶ 23; Clemente v. Allegre (2009) 177 Cal.App.4th 1277, 15 1293-1294.) Plaintiff had no choice other than filing the motion. Tellingly, Defendant’s opposition 16 makes clear that it has no intention of producing the responsive documents. 17 VI. DEFENDANT’S RELIANCE ON UNRELATED TRIAL COURT RULINGS FROM 18 OTHER COUNTIES IS IMPROPER AND MUST BE DISREGARDED 19 In a desperate attempt to sway this Court of its unmeritorious position, Defendant offers two 20 transcripts from trial courts in Los Angeles county involving unrelated motions filed by different 21 parties and different counsel. (See Major Decl. at Exhibits B and C.)3 This tactic is improper as trial 22 courts do not make binding precedents. Santa Ana Hospital Medical Center v. Belshe (1997) 56 23 Cal.App.4th 819, 831; King v. Order of United Commercial Travelers (1948) 333 U.S. 153, 160-61. 24 Furthermore, the transcripts are uncertified and unreliable even if they were binding precedent. 25 Finally, Defendant has failed to establish how the discovery dispute in this case relates to the dispute 26 in either of the trial court cases. Both cases involved different parties and different counsel. There is 27 3 28 In GM’s Opposition on p. 9, Defendant refers to one of the transcripts as Exhibit 2; however, in Cameron Major’s Declaration in support of GM’s opposition it is attached as Exhibit C. -9- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 no evidence whatsoever that any of the issues in the Los Angeles County trial court cases relate to the 2 instant matter. This so-called “evidence” must be disregarded. 3 VII. CONCLUSION 4 For the foregoing reasons, as well as the reasons set forth in Plaintiff’s motion, Plaintiff 5 respectfully requests an order compelling Defendant to provide supplemental verified responses and 6 produce the corresponding documents as to Plaintiff’s Request for Production of Documents (Set 7 One), numbers 10-12, 16-17, 20, 23-26, 28-29, 37-38 and 40-75. 8 9 Date: May 5, 2020 JOURNEY LAW GROUP, INC. 10 11 By: ____________________________ 12 Guy Mizrahi, Esq. 13 Arya Malek, Esq. Attorneys for Plaintiff, 14 DARVETTA FORD 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) PROOF OF SERVICE 1 2 STATE OF CALIFORNIA ) ) ss. 3 COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1762 Westwood Blvd., Suite 260, Los 5 Angeles, CA 90024. 6 On May 5, 2020, I served, in the manner indicated below, the foregoing document described as: PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL 7 DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE) on the interested parties in this action by placing true copies thereof, 8 enclosed in sealed envelopes, in Los Angeles, CA addressed as follows: 9 [SEE ATTACHED SERVICE LIST] 10 BY OVERNIGHT DELIVERY: I caused such envelopes to be delivered by courier, with next day 11 [ ] service, to the offices of the addressees. (C.C.P. §1013(c)(d).) 12 BY FACSIMILE: (C.C.P. § 1013(e)(f).) [ ] 13 BY MAIL: I caused to be delivered by U.S. mail by placing a true copy thereof enclosed in sealed 14 envelopes addressed as stated above. I am “readily familiar” with the firm’s practice of collection [ ] and processing documents for mailing. Under that practice it would be deposited with the U.S. postal 15 service on that same day with postage thereon fully prepaid in the ordinary course of business. 16 BY PERSONAL SERVICE: I caused such envelopes to be delivered by hand to the offices of the addressees. (C.C.P. § 1011(a)(b).) [ ] 17 BY ELECTRONIC MAIL: I transmitted such document from Los Angeles, California, to the 18 [X] electronic mail address maintained by the person(s) on the SERVICE LIST as last indicated by that person on a document that he or she has filed in the above-entitled cause and served on this party. 19 C.C.P. §1010.6 (a)(6).) 20 I declare under penalty of perjury under the laws of the State of California that the above is 21 true and correct. 22 Executed on May 5, 2020, in Los Angeles, California. 23 24 ________________________________________ 25 Virginia Walls 26 27 28 -1- PROOF OF SERVICE PROOF OF SERVICE LIST 1 FORD v. GENERAL MOTORS LLC 2 Case No. 19CECG02967 Page 1 3 4 Cameron Major, Esq. Attorneys for Defendant, THE ERSKINE LAW GROUP, PC GENERAL MOTORS LLC 5 1576 N. Batavia Street, Suite A Orange, CA 92867 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- PROOF OF SERVICE