Preview
1 Tionna Dolin (SBN 299010)
tdolin@slpattorney.com
2 Rebecca E. Neubauer (SBN 333904)
rneubauer@slpattorney.com
3 Jami I. Littles (SBN 199538)
jlittles@slpattorney.com
4 STRATEGIC LEGAL PRACTICES
A PROFESSIONAL CORPORATION
5 1888 Century Park East, 19th Floor
Los Angeles, CA 90067
6 Telephone: (310) 929-4900
Facsimile: (310) 943-3838
7
Attorneys for Plaintiff,
8 MELISSA CLAIRE TENHET
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF KERN
11
12 MELISSA CLAIRE TENHET, Case No. BCV-22-101476
Case Initiated: June 22, 2022
13 Plaintiff,
14 Assigned To: Hon. Bernard C. Barmann, Jr.
vs.
Department: H
15 GENERAL MOTORS, LLC; and DOES 1
through 10, inclusive, DECLARATION OF JAMI I. LITTLES IN
16 SUPPORT OF PLAINTIFF’S MOTION
Defendants. TO COMPEL FURTHER RESPONSES TO
17
PLAINTIFF’S REQUESTS FOR
18 PRODUCTION OF DOCUMENTS, SET
ONE
19
[Filed concurrently with Plaintiff’s Notice of
20 Motion to Compel Further Responses to
21 Requests for Production of Documents, Set No.
One, Memorandum of Points and Authorities
22 in Support Thereof, Separate Statement and
[Proposed] Order]
23
Date: April 14, 2023
24
Time: 8:30 a.m.
25 Dept.: H
26
27
28
DECLARATION OF JAMI I. LITTLES IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
1 DECLARATION OF JAMI I. LITTLES
2 I, JAMI I. LITTLES, declare as follows:
3 1. I am an attorney admitted to the Bar of the State of California. I am an attorney
4 with Strategic Legal Practices, APC (hereinafter “SLP”), counsel of record for Plaintiff MELISSA
5 CLAIRE TENHET’s (“Plaintiff”) in the above-entitled action. My knowledge of the information
6 and events described herein is derived from my personal knowledge, a careful review of the file
7 and relevant court records, and communication with other counsel for Plaintiff. If called as a
8 witness, I could and would testify competently thereto.
9 2. I respectfully submit this declaration in support of Plaintiff’s Motion to Compel
10 Further Responses to Plaintiff’s Requests for Production of Documents, Set One, as responded to
11 by defendant GENERAL MOTORS, LLC (hereinafter referred to as “Defendant” or “GM”).
12 Plaintiff’s Purchase and Experiences with the Transmission and Infotainment System Defects
13 3. On or about November 7, 2017, Plaintiff entered into a warranty contract with GM
14 regarding the Subject Vehicle, a 2018 GMC Terrain, Vehicle Identification Number
15 3GKALMEV1JL173915 (hereinafter “Subject Vehicle”). During the warranty period, the Subject
16 Vehicle contained or developed defects relating to the Subject Vehicle’s transmission and its
17 component parts (“Transmission Defects”) and defects relating to the Subject Vehicle’s
18 infotainment system and its component parts (“Infotainment Defects”).
19 4. Attached as Exhibit 1 are true and correct copies of the relevant repair orders for
20 the Subject Vehicle. According to records currently in Plaintiff’s possession, Plaintiff presented
21 the Subject Vehicle to Defendant’s authorized dealership(s) on no less than five (5) separate
22 occasions with concerns related to the Transmission Defects and Infotainment Defects.
23 5. On or about January 2, 2018, with approximately 1,659 miles on the odometer,
24 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with concerns
25 that, among other things, the OnStar red light was illuminated. Defendant’s technicians verified
26 Plaintiff’s concerns and replaced the OnStar antenna. The Subject Vehicle was with Defendant’s
27 authorized repair facility for two (2) days. All work was performed under warranty. At pickup,
28 Defendant’s technicians concluded the Subject Vehicle was repaired and operating as designed.
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
1
1 6. Yet again, on or about November 12, 2018, with approximately 11,705 miles on
2 the odometer, Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility
3 with complaints that the Subject Vehicle’s: (1) navigation system was not recognizing locations
4 when entering addresses; and (2) radio screen goes black and will not change operation.
5 Defendant’s technicians performed system diagnosis and found new radio updates to correct and
6 improve multiple infotainment features. Defendant’s technicians performed Safety Recall No.
7 18179 01, SDM Los of Communication and Technical Service Bulletin (“TSB”) 18-NA-195,
8 Radio Module Software Update 20.11. The Subject Vehicle was with Defendant’s authorized
9 repair facility for two (2) days. All work was performed under warranty. At pickup, Defendant’s
10 technicians concluded the Subject Vehicle had been repaired and operating as designed.
11 7. On or about June 19, 2019, with approximately 18,044 miles on the odometer,
12 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with concerns
13 that the Subject Vehicle’s: (1) the navigations system was not picking up locations after the
14 addresses are entered; and (2) radio screen and audio will not power on when the vehicle is left
15 outside in the heat all day. Defendant’s technicians inspected the navigation system, but did not
16 attempt any repairs. Defendant’s technicians reprogramed the radio module. The Subject Vehicle
17 was with Defendant’s authorized repair facility for two (2) days. All work was performed under
18 warranty. At pickup, Defendant’s technicians concluded the Subject Vehicle had been repaired
19 and operating as designed.
20 8. On or about June 9, 2020, with approximately 25,486 miles on the odometer,
21 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with complaints
22 that the Subject Vehicle’s: (1) Revolutions Per Minute (“RPMs”) were “jumping up really high”
23 and the transmission was not shifting; and (2) audio chime was not working and the wrong splash
24 screen was illuminated. Defendant’s technician’s reprogrammed the Engine Control Module
25 (“ECM”) advised Plaintiff to make an appointment to bring the Subject Vehicle back to the repair
26 facility for Plaintiff’s complaint regarding the transmission. The Subject Vehicle was at
27 Defendant’s authorized repair facility for one (1) day. All work was performed under warranty.
28
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
2
1 At pickup, Defendant’s technicians concluded the Subject Vehicle had been repaired and
2 operating as designed.
3 9. On or about June 14, 2021, with approximately 32,726 miles on the odometer,
4 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with complaints
5 that: (1) the Subject Vehicle’s radio goes black and then will come back on five (5) to ten (10)
6 minutes later; (2) the voice command is inoperable; (3) when turning the Subject Vehicle the
7 Hood Open Message appears; and (4) the Subject Vehicle’s gears slip from second to third and
8 the engine will rev up and jerk shifting from “take off”. It is unclear whether Defendant’s
9 technicians attempted any repairs on June 14, 2021. The Subject Vehicle was at Defendant’s
10 authorized repair facility for one (1) day. All work was performed under warranty. At pickup,
11 Defendant’s technicians concluded the Subject Vehicle had been repaired and operating as
12 designed.
13 10. Indeed, Plaintiff presented the Subject Vehicle no fewer than five (5) times to
14 Defendant’s authorized repair facility with complaints of symptoms related to the Transmission
15 Defects and Infotainment Defects. In response, the dealership verified Plaintiff’s complaints and
16 performed various repairs, attempting to fix the Transmission Defects and Infotainment Defects.
17 However, none of the repairs have fixed the Transmission Defects and Infotainment Defects.
18 Defendant’s Awareness of the Defects in the 2018 GMC Terrain D2 Vehicles
19 11. Based on my experience and upon communication with other counsel for Plaintiff,
20 I have become familiar with Recalls, Campaigns, and Technical Service Bulletins (“TSBs”)
21 within the automotive industry. A TSB is a technical publication issued by an automotive
22 manufacturer, in this case Defendant, for its authorized repair facilities that identifies a commonly
23 observed issue in a particular range of vehicles and provides diagnostic and repair instructions. It
24 is my understanding that TSBs are created in response to customer complaints made directly to
25 its network of dealers and distributed to its repair facilities. In essence, TSBs outline how common
26 problems should be repaired.
27 12. My firm has conducted its own research of TSBs applicable to 2018 GMC Terrain
28 vehicles (i.e., vehicles of the same make, model, and year as the Subject Vehicle and hereinafter
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
3
1 “GMC Vehicles”), and it is clear that Defendant is aware of prevalent Transmission Defects and
2 Infotainment Defects in GMC Vehicles given the vast number of TSBs, Campaigns, and Recalls
3 available to address the symptoms, issues, or concerns related the Defects.
4 13. Attached hereto as Exhibit 2 is a true and correct copy of Safety Recall No. 18179
5 01, SDM Loss of Communication issued on or around June 7, 2018, and intended to address
6 concerns that the sensing diagnostic module (“SDM”) is inoperative. If the SDM is inoperative,
7 the SDM will not detect a crash or command deployment of airbags, increasing the risk of injury.
8 The Subject Vehicle was presented to Defendant’s authorized repair facility with concerns
9 that: (1) the Navigation System was not recognizing locations when addresses were entered
10 and (2) the radio screen and audio would not power up on November 12, 2018. Defendant’s
11 technicians performed Safety Recall No. 18179 and TSB 18-NA-195, Radio Module Update
12 20.11. 1 This is related to the infotainment system, and its component parts, which Plaintiff
13 alleges are defective and susceptible to sudden, premature, and catastrophic failure.
14 14. Attached hereto as Exhibit 3 is a true and correct copy of TSB 18-NA-195, issued
15 on or around May 3, 2019, and intended provide a software update for the Subject Vehicle’s radio.
16 This TSB addresses concerns regarding certain audio features and the navigation system, among
17 other things, so that they continue to function properly. The Subject Vehicle was presented to
18 Defendant’s authorized repair facility with concerns (1) the Navigation System was not
19 recognizing locations when addresses were entered and (2) the radio screen and audio would
20 not power up on November 12, 2018, June 19, 2019, and June 9, 2020. 2 Defendant’s
21 technician reprogrammed the radio as instructed by TSB 18-NA-196 during November 12,
22 2018, and June 19, 2019, visits. This is related to the infotainment system, and its component
23 parts, which Plaintiff alleges are defective and susceptible to sudden, premature, and
24 catastrophic failure.
25 15. Attached hereto as Exhibit 4 is a true and correct copy of TSB PIE0459A, issued
26 on or around May 29, 2018, and intended to provide engineering information regarding
27 complaints that the Subject Vehicle is having difficulty shifting. This TSB advises the engineer
28 1
See ¶6.
2
See ¶¶6-8.
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
4
1 to refer to the Service Instructions for further diagnosis. The Subject Vehicle was presented to
2 Defendant’s authorized repair facility with complaints that the Subject Vehicle’s RPM’s
3 were “jumping up really high” and the transmission was not shifting on June 9, 2020. 3
4 Defendant’s technician reprogrammed the ECM and advised Plaintiff to make an
5 appointment to address Plaintiff’s complaints regarding the transmission. This is related to
6 the Transmission Defects, and its component parts, which Plaintiff alleges are defective and
7 susceptible to sudden, premature, and catastrophic failure.
8 16. Attached hereto as Exhibit 5 is a true and correct copy of TSB N192217490,
9 issued on or around June 4, 2019, and intended to address customers complaints that the Subject
10 Vehicle experienced a loss of infotainment audio and/or loss of the warning “chimes” and
11 illumination of the wrong splash screen. This TSB provides the repair procedure for
12 reprogramming the vehicle with the correct radio software and calibration. The Subject Vehicle
13 was presented to Defendant’s authorized repair facility with concerns that the audio chime
14 was not working and the wrong splash screen was illuminated on June 9, 2020. 4
15 Defendant’s technician reprogrammed the ECM. This is related to the infotainment system,
16 and its component parts, which Plaintiff alleges are defective and susceptible to sudden,
17 premature, and catastrophic failure.
18 17. Attached hereto as Exhibit 6 is a true and correct copy of TSB 18-NA-097, issued
19 on or around April 3, 2018, and intended to provide the service procedure for customer complaints
20 that the Subject Vehicle is having difficulty shifting and requires the reprogramming of the
21 Transmission Control Module (“TCM”) and performance of the Service Fast Learn after
22 programming the TCM. The Subject Vehicle was presented to Defendant’s authorized repair
23 facility with complaints that the Subject Vehicle’s RPM’s were “jumping up really high”
24 and the transmission was having problems shifting on June 9, 2020, and June 14, 2021.5
25 Defendant’s technician advised Plaintiff to make an appointment to address Plaintiff’s
26 complaints regarding the transmission during the June 9, 2020, visit. This is related to the
27
3
28 See ¶8.
4
See ¶8.
5
See ¶¶8-9.
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
5
1 transmission, and its component parts, which Plaintiff alleges are defective and susceptible
2 to sudden, premature, and catastrophic failure.
3 18. Notwithstanding Defendant’s awareness of the Transmission Defects and
4 Infotainment Defects and its inability to repair them, Defendant failed to offer a repurchase or
5 replacement of the Subject Vehicle.
6 Procedural History
7 19. This action was filed on June 22, 2022, alleging various Song-Beverly Consumer
8 Warranty Act (hereinafter “Song-Beverly Act”) claims, breach of express written warranty and
9 breach of the implied warranty of merchantability, based on Defendant’s failure to conform the
10 Subject Vehicle to the applicable warranties and failure to repurchase or replace the Subject
11 Vehicle, in violation of the Song-Beverly Act.
12 Summary of Discovery Efforts
13 20. Attached as hereto Exhibit 7 is a true and correct copy of Plaintiff’s Requests for
14 Production of Documents, Set One (hereinafter “RFP(1)”), electronically served on Defendant on
15 November 3, 2022.
16 21. Specifically, Plaintiff requested that Defendant produce documents concerning the
17 Subject Vehicle (i.e., RFP Nos. 1, 7 and 10) Defendant’s internal investigation and analysis of the
18 Transmission Defects and Infotainment Defects experienced by Defendant’s consumers of 2018 GMC
19 Terrain D2 vehicles similar to Plaintiff’s (i.e., RFP Nos. 18, 30, 35, 38, 42, 54, 59, 63, 107, 112, 118,
20 138, 141, 142, 143, 144 and 145), reports to government entities (i.e. RFP Nos. 123, 124, 125, 126, 127,
21 129, 130, 131, 132, 133 and 134), Lemon Law documents, including warranty and vehicle repurchase
22 policies, procedures, and practices (i.e. RFP No. 108, 112 and 118). All this information is relevant as
23 to: (1) whether the Subject Vehicle suffered from a defect; (2) whether based on its internal testing and
24 investigation, Defendant could repair it to conform to warranty within a reasonable number of
25 opportunities; (3) whether Defendant provided its repair facilities with sufficient literature and parts to
26 complete repairs during the warranty period; (4) whether Defendant knew it could not repair the Subject
27 Vehicle but refused to repurchase it nonetheless; and (5) Defendant’s knowledge prior to Plaintiff’s
28
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
6
1 acquisition of the Subject Vehicle that the vehicle and its transmission system as well as its component
2 parts are defective and susceptible to sudden, premature, and catastrophic failure.
3 22. Attached hereto as Exhibit 7 is a true and correct copy of Defendant’s Responses to
4 Plaintiff’s RFP(1), which Defendant electronically served on or about December 5, 2022.
5 23. GM has indicated it will comply with the requests in part (i.e., Response Nos. 1, 7 and
6 10) by unilaterally narrowing the response to only the documents related to the Subject Vehicle as
7 opposed to the request for documents for 2018 GMC Terrain D2 Vehicles.
8 24. Defendant GM has refused to produce documents claiming boilerplate objections
9 “overbroad” “unduly burdensome”, “oppressive, not reasonably limited in time or geographic scope,
10 and seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of
11 admissible evidence as it is not limited to the SUBJECT VEHICLE or issues in this action”, “seeks
12 confidential, proprietary and trade secret information in the form of GM’s internal policies and
13 procedures “ etc. (i.e., Response Nos. 18, 30, 35, 38, 42, 54, 59, 63, 107, 112, 118, 138, 141, 142, 143,
14 144 and 145).
15 25. Defendant has failed to produce any documents, including the documents GM agreed
16 to produce that GM unilaterally limited to Subject Vehicle. Besides, GM completely refused to produce
17 any internal investigation documents related to the Transmission Defects and Infotainment Defects in
18 GMC Vehicles (including the “accretion of knowledge” documents that preceded Defendant’s decisions
19 to issue TSBs, Recalls, and Campaigns relating to the Defects in GMC Vehicles, which courts routinely
20 order car manufacturers to produce), all National Highway Traffic Safety Administration (hereinafter
21 “NHTSA”) communications (including Early Warning Reports, field technical reports, NHTSA
22 complaints and TREAD reports), or any emails/ESI documentation or any executive reviews (i.e.
23 Response Nos. 123, 124, 125, 126, 127, 129, 130, 131, 132, 133 and 134).
24 26. As of the date of the filing and serving of this Motion, Defendant has not provided Code-
25 compliant responses to Plaintiff’s RFP(1) and has failed to produce any responsive, nonprivileged
26 documents.
27
28
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
7
1 Summary of Meet & Confer Efforts
2 27. Attached hereto as Exhibit 8 is a true and correct copy of Plaintiff’s letter to
3 Defendant, dated November 3, 2022, attempting to meet and confer regarding discovery of
4 electronically stored information (ESI), creation of a search protocol, and institution of a litigation
5 hold, sent in accordance with California Rules of Court Rule 3.724.
6 28. Attached hereto as Exhibit 9 is a true and correct copy of Defendant’s response
7 letter to Plaintiff’s ESI letter, dated November 10, 2022. In its response, Defendant stated that it
8 disagreed with Plaintiff’s assertion at the outset of this case that ESI discovery was necessary and
9 labeled it “premature.”
10 29. Attached hereto as Exhibit 10 is a true and correct copy of Plaintiff’s initial meet-
11 and-confer letter, dated December 21, 2022, regarding Defendant’s boilerplate objections,
12 inadequate production of documents, and deficient responses to RFP(1). Plaintiff provided good
13 cause and caselaw supporting its position that the requests were tailored to discoverable
14 information and documents related to the Song Beverly Claims. Plaintiff again offered to meet
15 and confer with Defendant on establishing a search protocol to facilitate production of relevant,
16 probative ESI.
17 30. Attached hereto as Exhibit 11 is a true and correct copy of the [Proposed]
18 Stipulation and Protective Order executed by Plaintiff and sent to Defendants on December 21,
19 2022. With the execution of this protective order, Defendant should have no issue in producing
20 verified Code-compliant supplemental responses, without boilerplate objections, all responsive
21 documents, and any applicable privilege logs.
22 31. Attached hereto as Exhibit 12 is a true and correct copy of the ESI Stipulation and
23 [Proposed] Order executed by Plaintiff and sent to Defendant on December 21, 2022. Defendant
24 has neither agreed to the stipulation or provided any suggested changes, essentially ignoring
25 Plaintiff’s efforts to meet and confer regarding ESI.
26 32. Attached hereto as Exhibit 13 hereto is a true and correct of Defendant’s response
27 to Plaintiff’s December 21, 2022, meet and confer letter dated January 18, 2023. In that letter,
28 Defendant maintained that its responses to RFP(1) are code-compliant and that its objections are
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
8
1 proper but nonetheless agreed to supplement its document production and produce: (1) customer
2 complaints within GM’s ESI database that are substantially similar to Plaintiff’s complaint(s)
3 concerning the alleged defects, for vehicles purchased in California of the same, year, make and
4 model as the Subject Vehicle”; and (2) “policy and procedure documents directly responsive to
5 Plaintiff’s Requests, subject to the negotiated protective order agreed between our respective
6 firms in similar lemon law matters”. In that letter, Defendant also indicated its agreement to
7 participate in an informal discovery conference.
8 33. Attached hereto as Exhibit 14 is a true and correct copy of Plaintiff’s further meet
9 and confer email dated January 22, 2023. In that email, Plaintiff advised Defendant that if Plaintiff
10 does not receive Code-compliant supplemental responses and all responsive documents by
11 January 23, 2023, Plaintiff would have no choice other than to move forward with the instant
12 motion.
13 34. Attached hereto as Exhibit 15 is a true and correct copy of the Stipulation and
14 Protective Order signed by both Plaintiff and Defendant.
15 35. As of the filing of the instant Motion, Defendant has not produced all documents
16 relevant to its internal investigations regarding Transmission Defects and Infotainment Defects in
17 2018 GMC Terrain D2 Vehicles (related to the TSBs/recalls and leading up to the issuance), e-
18 mails (with customers, dealerships and internal with high level engineers), warranty clams, failure
19 rates, field reports and executive reviews. Instead of producing all responsive documents in its
20 possession, custody, or control, Defendant’s responses contain boilerplate objections and refusal
21 to produce any documents, often without any justification. GM has not produced documents
22 regarding the efficacy of the TSBs and recalls that it issued that were performed on the Subject
23 Vehicle. GM has not produced any the National Highway Traffic Safety Administration
24 disclosures it should have made pursuant to 49 CFR 579.21 including Early Warning Reports,
25 complaints, communications, and TREAD Reports.
26 Santana v. FCA Ruling
27 36. Attached hereto as Exhibit 16 is a true and correct copy of the recently issued
28 Santana v. FCA US, LLC, No. G057244, 2020 WL 6261439, at *7 (Cal. Ct. App. Sept. 29, 2020),
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
9
1 finding that internal emails between engineers are relevant to civil penalties and a manufacturer’s
2 affirmative duty to promptly offer repurchase regardless of whether Plaintiff asked for a buyback
3 prior to filing suit.
4 37. The importance of email production in discovery were squarely addressed in the
5 recently certified for publication decision Santana v. FCA US, LLC Court of Appeal, 4th Appellate
6 District, Division 3, Case Nos. G057244 and G058020 (Opinion Issued September 29, 2020). In
7 that case against the same Defendant, the Court considered evidence in the form of email
8 communications between Defendant’s employees produced in discovery. Those employees
9 characterized repair procedures for electrical architecture defects as “a temporary work around”
10 and “a good MacGyver trick.” (Id.) The Court found that this evidence supported finding that
11 Defendant’s violations of the Song Beverly Act were willful, entitling the Plaintiff to a civil
12 penalty. If Defendant possesses internal investigations or communications about the problems
13 Plaintiff experienced with her own Transmission Defects and Infotainment Defects, then those
14 are surely discoverable here too.
15 38. To date, GM has not searched for any responsive emails or ESI. GM completely
16 refuses to meet and confer with Plaintiff the search and production of responsive ESI, including
17 emails.
18 Communications with the NHTSA
19 39. Attached hereto as Exhibit 17 is a true and correct copy of 49 CFR § 579.21
20 (Reporting requirements for manufacturers of 5,000 or more light vehicles annually), which sets
21 forth reports that are submitted by Defendant to the National Highway Traffic Safety
22 Administration (hereinafter “NHTSA”) and that can be produced here without undue burden.
23 Indeed, manufacturers are required under federal law to track and report information regarding its
24 defective vehicles. See 49 C.F.R. § 579.21 (“Reporting requirements for manufacturers of 5,000
25 or more light vehicles annually”). These federally mandated databases, which track each
26 complaint, report, or warranty repair by certain code (e.g., defect codes, part numbers, etc.)
27 include the customer complaint database, filed reports (e.g., dealers contacting Defendant and
28 informing them about the defects they cannot repair), Warranty Databases (repairs made
DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
10
1 consumers about specific defects).
2 40. Attached hereto as Exhibit 18 is a true and correct copy of Defendant’s requirement
3 to report ALL recalls to NHTSA, obtained from https://www.nhtsa.gov/sites/nhtsa.dot.gov/
4 files/documents/14218-mvsdefectsandrecalls_041619-v2-tag.pdf
5 41. Attached hereto as Exhibit 19 is a true and correct copy of the Federal Law
6 requiring Defendant to prepare Early Warning Reports to NHTSA, this was obtained from
7 https://www.govinfo.gov/content/pkg/CFR-2015-title49-vol7/pdf/CFR-2015-title49-vol7-part5
8 79.pdf and https://www.nhtsa.gov/vehicle-manufacturers/early-warning-reporting
9 42. Attached hereto as Exhibit 20 is a true and correct copy of the TREAD act,
10 requiring Defendant’s participation, this was obtained from https://www.congress.gov/106
11 /plaws/publ414/PLAW-106publ414.pdf
12 43. Defendant continues to withhold all NHSTA documents (Early Warning reports,
13 TREAD Reports, communications and complaints).
14 I declare under penalty of perjury under the laws of the State of California that the
15 foregoing is true and correct.
16
17
18 DATED: January 23, 2023
19 ___________________________
JAMI I. LITTLES
20
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24
25
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27
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DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
11
EXHIBIT 1
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1 Tionna Dolin (SBN 299010) tdolin@slpattorney.com 2 Rebecca E. Neubauer (SBN 333904) rneubauer@slpattorney.com 3 Jami I. Littles (SBN 199538) jlittles@slpattorney.com 4 STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 5 1888 Century Park East, 19th Floor Los Angeles, CA 90067 6 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 7 Attorneys for Plaintiff, 8 MELISSA CLAIRE TENHET 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 MELISSA CLAIRE TENHET, Case No. BCV-22-101476 Case Initiated: June 22, 2022 13 Plaintiff, 14 Assigned To: Hon. Bernard C. Barmann, Jr. vs. Department: H 15 GENERAL MOTORS, LLC; and DOES 1 through 10, inclusive, DECLARATION OF JAMI I. LITTLES IN 16 SUPPORT OF PLAINTIFF’S MOTION Defendants. TO COMPEL FURTHER RESPONSES TO 17 PLAINTIFF’S REQUESTS FOR 18 PRODUCTION OF DOCUMENTS, SET ONE 19 [Filed concurrently with Plaintiff’s Notice of 20 Motion to Compel Further Responses to 21 Requests for Production of Documents, Set No. One, Memorandum of Points and Authorities 22 in Support Thereof, Separate Statement and [Proposed] Order] 23 Date: April 14, 2023 24 Time: 8:30 a.m. 25 Dept.: H 26 27 28 DECLARATION OF JAMI I. LITTLES IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 1 DECLARATION OF JAMI I. LITTLES 2 I, JAMI I. LITTLES, declare as follows: 3 1. I am an attorney admitted to the Bar of the State of California. I am an attorney 4 with Strategic Legal Practices, APC (hereinafter “SLP”), counsel of record for Plaintiff MELISSA 5 CLAIRE TENHET’s (“Plaintiff”) in the above-entitled action. My knowledge of the information 6 and events described herein is derived from my personal knowledge, a careful review of the file 7 and relevant court records, and communication with other counsel for Plaintiff. If called as a 8 witness, I could and would testify competently thereto. 9 2. I respectfully submit this declaration in support of Plaintiff’s Motion to Compel 10 Further Responses to Plaintiff’s Requests for Production of Documents, Set One, as responded to 11 by defendant GENERAL MOTORS, LLC (hereinafter referred to as “Defendant” or “GM”). 12 Plaintiff’s Purchase and Experiences with the Transmission and Infotainment System Defects 13 3. On or about November 7, 2017, Plaintiff entered into a warranty contract with GM 14 regarding the Subject Vehicle, a 2018 GMC Terrain, Vehicle Identification Number 15 3GKALMEV1JL173915 (hereinafter “Subject Vehicle”). During the warranty period, the Subject 16 Vehicle contained or developed defects relating to the Subject Vehicle’s transmission and its 17 component parts (“Transmission Defects”) and defects relating to the Subject Vehicle’s 18 infotainment system and its component parts (“Infotainment Defects”). 19 4. Attached as Exhibit 1 are true and correct copies of the relevant repair orders for 20 the Subject Vehicle. According to records currently in Plaintiff’s possession, Plaintiff presented 21 the Subject Vehicle to Defendant’s authorized dealership(s) on no less than five (5) separate 22 occasions with concerns related to the Transmission Defects and Infotainment Defects. 23 5. On or about January 2, 2018, with approximately 1,659 miles on the odometer, 24 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with concerns 25 that, among other things, the OnStar red light was illuminated. Defendant’s technicians verified 26 Plaintiff’s concerns and replaced the OnStar antenna. The Subject Vehicle was with Defendant’s 27 authorized repair facility for two (2) days. All work was performed under warranty. At pickup, 28 Defendant’s technicians concluded the Subject Vehicle was repaired and operating as designed. DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 1 1 6. Yet again, on or about November 12, 2018, with approximately 11,705 miles on 2 the odometer, Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility 3 with complaints that the Subject Vehicle’s: (1) navigation system was not recognizing locations 4 when entering addresses; and (2) radio screen goes black and will not change operation. 5 Defendant’s technicians performed system diagnosis and found new radio updates to correct and 6 improve multiple infotainment features. Defendant’s technicians performed Safety Recall No. 7 18179 01, SDM Los of Communication and Technical Service Bulletin (“TSB”) 18-NA-195, 8 Radio Module Software Update 20.11. The Subject Vehicle was with Defendant’s authorized 9 repair facility for two (2) days. All work was performed under warranty. At pickup, Defendant’s 10 technicians concluded the Subject Vehicle had been repaired and operating as designed. 11 7. On or about June 19, 2019, with approximately 18,044 miles on the odometer, 12 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with concerns 13 that the Subject Vehicle’s: (1) the navigations system was not picking up locations after the 14 addresses are entered; and (2) radio screen and audio will not power on when the vehicle is left 15 outside in the heat all day. Defendant’s technicians inspected the navigation system, but did not 16 attempt any repairs. Defendant’s technicians reprogramed the radio module. The Subject Vehicle 17 was with Defendant’s authorized repair facility for two (2) days. All work was performed under 18 warranty. At pickup, Defendant’s technicians concluded the Subject Vehicle had been repaired 19 and operating as designed. 20 8. On or about June 9, 2020, with approximately 25,486 miles on the odometer, 21 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with complaints 22 that the Subject Vehicle’s: (1) Revolutions Per Minute (“RPMs”) were “jumping up really high” 23 and the transmission was not shifting; and (2) audio chime was not working and the wrong splash 24 screen was illuminated. Defendant’s technician’s reprogrammed the Engine Control Module 25 (“ECM”) advised Plaintiff to make an appointment to bring the Subject Vehicle back to the repair 26 facility for Plaintiff’s complaint regarding the transmission. The Subject Vehicle was at 27 Defendant’s authorized repair facility for one (1) day. All work was performed under warranty. 28 DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 2 1 At pickup, Defendant’s technicians concluded the Subject Vehicle had been repaired and 2 operating as designed. 3 9. On or about June 14, 2021, with approximately 32,726 miles on the odometer, 4 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with complaints 5 that: (1) the Subject Vehicle’s radio goes black and then will come back on five (5) to ten (10) 6 minutes later; (2) the voice command is inoperable; (3) when turning the Subject Vehicle the 7 Hood Open Message appears; and (4) the Subject Vehicle’s gears slip from second to third and 8 the engine will rev up and jerk shifting from “take off”. It is unclear whether Defendant’s 9 technicians attempted any repairs on June 14, 2021. The Subject Vehicle was at Defendant’s 10 authorized repair facility for one (1) day. All work was performed under warranty. At pickup, 11 Defendant’s technicians concluded the Subject Vehicle had been repaired and operating as 12 designed. 13 10. Indeed, Plaintiff presented the Subject Vehicle no fewer than five (5) times to 14 Defendant’s authorized repair facility with complaints of symptoms related to the Transmission 15 Defects and Infotainment Defects. In response, the dealership verified Plaintiff’s complaints and 16 performed various repairs, attempting to fix the Transmission Defects and Infotainment Defects. 17 However, none of the repairs have fixed the Transmission Defects and Infotainment Defects. 18 Defendant’s Awareness of the Defects in the 2018 GMC Terrain D2 Vehicles 19 11. Based on my experience and upon communication with other counsel for Plaintiff, 20 I have become familiar with Recalls, Campaigns, and Technical Service Bulletins (“TSBs”) 21 within the automotive industry. A TSB is a technical publication issued by an automotive 22 manufacturer, in this case Defendant, for its authorized repair facilities that identifies a commonly 23 observed issue in a particular range of vehicles and provides diagnostic and repair instructions. It 24 is my understanding that TSBs are created in response to customer complaints made directly to 25 its network of dealers and distributed to its repair facilities. In essence, TSBs outline how common 26 problems should be repaired. 27 12. My firm has conducted its own research of TSBs applicable to 2018 GMC Terrain 28 vehicles (i.e., vehicles of the same make, model, and year as the Subject Vehicle and hereinafter DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 3 1 “GMC Vehicles”), and it is clear that Defendant is aware of prevalent Transmission Defects and 2 Infotainment Defects in GMC Vehicles given the vast number of TSBs, Campaigns, and Recalls 3 available to address the symptoms, issues, or concerns related the Defects. 4 13. Attached hereto as Exhibit 2 is a true and correct copy of Safety Recall No. 18179 5 01, SDM Loss of Communication issued on or around June 7, 2018, and intended to address 6 concerns that the sensing diagnostic module (“SDM”) is inoperative. If the SDM is inoperative, 7 the SDM will not detect a crash or command deployment of airbags, increasing the risk of injury. 8 The Subject Vehicle was presented to Defendant’s authorized repair facility with concerns 9 that: (1) the Navigation System was not recognizing locations when addresses were entered 10 and (2) the radio screen and audio would not power up on November 12, 2018. Defendant’s 11 technicians performed Safety Recall No. 18179 and TSB 18-NA-195, Radio Module Update 12 20.11. 1 This is related to the infotainment system, and its component parts, which Plaintiff 13 alleges are defective and susceptible to sudden, premature, and catastrophic failure. 14 14. Attached hereto as Exhibit 3 is a true and correct copy of TSB 18-NA-195, issued 15 on or around May 3, 2019, and intended provide a software update for the Subject Vehicle’s radio. 16 This TSB addresses concerns regarding certain audio features and the navigation system, among 17 other things, so that they continue to function properly. The Subject Vehicle was presented to 18 Defendant’s authorized repair facility with concerns (1) the Navigation System was not 19 recognizing locations when addresses were entered and (2) the radio screen and audio would 20 not power up on November 12, 2018, June 19, 2019, and June 9, 2020. 2 Defendant’s 21 technician reprogrammed the radio as instructed by TSB 18-NA-196 during November 12, 22 2018, and June 19, 2019, visits. This is related to the infotainment system, and its component 23 parts, which Plaintiff alleges are defective and susceptible to sudden, premature, and 24 catastrophic failure. 25 15. Attached hereto as Exhibit 4 is a true and correct copy of TSB PIE0459A, issued 26 on or around May 29, 2018, and intended to provide engineering information regarding 27 complaints that the Subject Vehicle is having difficulty shifting. This TSB advises the engineer 28 1 See ¶6. 2 See ¶¶6-8. DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 4 1 to refer to the Service Instructions for further diagnosis. The Subject Vehicle was presented to 2 Defendant’s authorized repair facility with complaints that the Subject Vehicle’s RPM’s 3 were “jumping up really high” and the transmission was not shifting on June 9, 2020. 3 4 Defendant’s technician reprogrammed the ECM and advised Plaintiff to make an 5 appointment to address Plaintiff’s complaints regarding the transmission. This is related to 6 the Transmission Defects, and its component parts, which Plaintiff alleges are defective and 7 susceptible to sudden, premature, and catastrophic failure. 8 16. Attached hereto as Exhibit 5 is a true and correct copy of TSB N192217490, 9 issued on or around June 4, 2019, and intended to address customers complaints that the Subject 10 Vehicle experienced a loss of infotainment audio and/or loss of the warning “chimes” and 11 illumination of the wrong splash screen. This TSB provides the repair procedure for 12 reprogramming the vehicle with the correct radio software and calibration. The Subject Vehicle 13 was presented to Defendant’s authorized repair facility with concerns that the audio chime 14 was not working and the wrong splash screen was illuminated on June 9, 2020. 4 15 Defendant’s technician reprogrammed the ECM. This is related to the infotainment system, 16 and its component parts, which Plaintiff alleges are defective and susceptible to sudden, 17 premature, and catastrophic failure. 18 17. Attached hereto as Exhibit 6 is a true and correct copy of TSB 18-NA-097, issued 19 on or around April 3, 2018, and intended to provide the service procedure for customer complaints 20 that the Subject Vehicle is having difficulty shifting and requires the reprogramming of the 21 Transmission Control Module (“TCM”) and performance of the Service Fast Learn after 22 programming the TCM. The Subject Vehicle was presented to Defendant’s authorized repair 23 facility with complaints that the Subject Vehicle’s RPM’s were “jumping up really high” 24 and the transmission was having problems shifting on June 9, 2020, and June 14, 2021.5 25 Defendant’s technician advised Plaintiff to make an appointment to address Plaintiff’s 26 complaints regarding the transmission during the June 9, 2020, visit. This is related to the 27 3 28 See ¶8. 4 See ¶8. 5 See ¶¶8-9. DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 5 1 transmission, and its component parts, which Plaintiff alleges are defective and susceptible 2 to sudden, premature, and catastrophic failure. 3 18. Notwithstanding Defendant’s awareness of the Transmission Defects and 4 Infotainment Defects and its inability to repair them, Defendant failed to offer a repurchase or 5 replacement of the Subject Vehicle. 6 Procedural History 7 19. This action was filed on June 22, 2022, alleging various Song-Beverly Consumer 8 Warranty Act (hereinafter “Song-Beverly Act”) claims, breach of express written warranty and 9 breach of the implied warranty of merchantability, based on Defendant’s failure to conform the 10 Subject Vehicle to the applicable warranties and failure to repurchase or replace the Subject 11 Vehicle, in violation of the Song-Beverly Act. 12 Summary of Discovery Efforts 13 20. Attached as hereto Exhibit 7 is a true and correct copy of Plaintiff’s Requests for 14 Production of Documents, Set One (hereinafter “RFP(1)”), electronically served on Defendant on 15 November 3, 2022. 16 21. Specifically, Plaintiff requested that Defendant produce documents concerning the 17 Subject Vehicle (i.e., RFP Nos. 1, 7 and 10) Defendant’s internal investigation and analysis of the 18 Transmission Defects and Infotainment Defects experienced by Defendant’s consumers of 2018 GMC 19 Terrain D2 vehicles similar to Plaintiff’s (i.e., RFP Nos. 18, 30, 35, 38, 42, 54, 59, 63, 107, 112, 118, 20 138, 141, 142, 143, 144 and 145), reports to government entities (i.e. RFP Nos. 123, 124, 125, 126, 127, 21 129, 130, 131, 132, 133 and 134), Lemon Law documents, including warranty and vehicle repurchase 22 policies, procedures, and practices (i.e. RFP No. 108, 112 and 118). All this information is relevant as 23 to: (1) whether the Subject Vehicle suffered from a defect; (2) whether based on its internal testing and 24 investigation, Defendant could repair it to conform to warranty within a reasonable number of 25 opportunities; (3) whether Defendant provided its repair facilities with sufficient literature and parts to 26 complete repairs during the warranty period; (4) whether Defendant knew it could not repair the Subject 27 Vehicle but refused to repurchase it nonetheless; and (5) Defendant’s knowledge prior to Plaintiff’s 28 DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 6 1 acquisition of the Subject Vehicle that the vehicle and its transmission system as well as its component 2 parts are defective and susceptible to sudden, premature, and catastrophic failure. 3 22. Attached hereto as Exhibit 7 is a true and correct copy of Defendant’s Responses to 4 Plaintiff’s RFP(1), which Defendant electronically served on or about December 5, 2022. 5 23. GM has indicated it will comply with the requests in part (i.e., Response Nos. 1, 7 and 6 10) by unilaterally narrowing the response to only the documents related to the Subject Vehicle as 7 opposed to the request for documents for 2018 GMC Terrain D2 Vehicles. 8 24. Defendant GM has refused to produce documents claiming boilerplate objections 9 “overbroad” “unduly burdensome”, “oppressive, not reasonably limited in time or geographic scope, 10 and seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of 11 admissible evidence as it is not limited to the SUBJECT VEHICLE or issues in this action”, “seeks 12 confidential, proprietary and trade secret information in the form of GM’s internal policies and 13 procedures “ etc. (i.e., Response Nos. 18, 30, 35, 38, 42, 54, 59, 63, 107, 112, 118, 138, 141, 142, 143, 14 144 and 145). 15 25. Defendant has failed to produce any documents, including the documents GM agreed 16 to produce that GM unilaterally limited to Subject Vehicle. Besides, GM completely refused to produce 17 any internal investigation documents related to the Transmission Defects and Infotainment Defects in 18 GMC Vehicles (including the “accretion of knowledge” documents that preceded Defendant’s decisions 19 to issue TSBs, Recalls, and Campaigns relating to the Defects in GMC Vehicles, which courts routinely 20 order car manufacturers to produce), all National Highway Traffic Safety Administration (hereinafter 21 “NHTSA”) communications (including Early Warning Reports, field technical reports, NHTSA 22 complaints and TREAD reports), or any emails/ESI documentation or any executive reviews (i.e. 23 Response Nos. 123, 124, 125, 126, 127, 129, 130, 131, 132, 133 and 134). 24 26. As of the date of the filing and serving of this Motion, Defendant has not provided Code- 25 compliant responses to Plaintiff’s RFP(1) and has failed to produce any responsive, nonprivileged 26 documents. 27 28 DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 7 1 Summary of Meet & Confer Efforts 2 27. Attached hereto as Exhibit 8 is a true and correct copy of Plaintiff’s letter to 3 Defendant, dated November 3, 2022, attempting to meet and confer regarding discovery of 4 electronically stored information (ESI), creation of a search protocol, and institution of a litigation 5 hold, sent in accordance with California Rules of Court Rule 3.724. 6 28. Attached hereto as Exhibit 9 is a true and correct copy of Defendant’s response 7 letter to Plaintiff’s ESI letter, dated November 10, 2022. In its response, Defendant stated that it 8 disagreed with Plaintiff’s assertion at the outset of this case that ESI discovery was necessary and 9 labeled it “premature.” 10 29. Attached hereto as Exhibit 10 is a true and correct copy of Plaintiff’s initial meet- 11 and-confer letter, dated December 21, 2022, regarding Defendant’s boilerplate objections, 12 inadequate production of documents, and deficient responses to RFP(1). Plaintiff provided good 13 cause and caselaw supporting its position that the requests were tailored to discoverable 14 information and documents related to the Song Beverly Claims. Plaintiff again offered to meet 15 and confer with Defendant on establishing a search protocol to facilitate production of relevant, 16 probative ESI. 17 30. Attached hereto as Exhibit 11 is a true and correct copy of the [Proposed] 18 Stipulation and Protective Order executed by Plaintiff and sent to Defendants on December 21, 19 2022. With the execution of this protective order, Defendant should have no issue in producing 20 verified Code-compliant supplemental responses, without boilerplate objections, all responsive 21 documents, and any applicable privilege logs. 22 31. Attached hereto as Exhibit 12 is a true and correct copy of the ESI Stipulation and 23 [Proposed] Order executed by Plaintiff and sent to Defendant on December 21, 2022. Defendant 24 has neither agreed to the stipulation or provided any suggested changes, essentially ignoring 25 Plaintiff’s efforts to meet and confer regarding ESI. 26 32. Attached hereto as Exhibit 13 hereto is a true and correct of Defendant’s response 27 to Plaintiff’s December 21, 2022, meet and confer letter dated January 18, 2023. In that letter, 28 Defendant maintained that its responses to RFP(1) are code-compliant and that its objections are DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 8 1 proper but nonetheless agreed to supplement its document production and produce: (1) customer 2 complaints within GM’s ESI database that are substantially similar to Plaintiff’s complaint(s) 3 concerning the alleged defects, for vehicles purchased in California of the same, year, make and 4 model as the Subject Vehicle”; and (2) “policy and procedure documents directly responsive to 5 Plaintiff’s Requests, subject to the negotiated protective order agreed between our respective 6 firms in similar lemon law matters”. In that letter, Defendant also indicated its agreement to 7 participate in an informal discovery conference. 8 33. Attached hereto as Exhibit 14 is a true and correct copy of Plaintiff’s further meet 9 and confer email dated January 22, 2023. In that email, Plaintiff advised Defendant that if Plaintiff 10 does not receive Code-compliant supplemental responses and all responsive documents by 11 January 23, 2023, Plaintiff would have no choice other than to move forward with the instant 12 motion. 13 34. Attached hereto as Exhibit 15 is a true and correct copy of the Stipulation and 14 Protective Order signed by both Plaintiff and Defendant. 15 35. As of the filing of the instant Motion, Defendant has not produced all documents 16 relevant to its internal investigations regarding Transmission Defects and Infotainment Defects in 17 2018 GMC Terrain D2 Vehicles (related to the TSBs/recalls and leading up to the issuance), e- 18 mails (with customers, dealerships and internal with high level engineers), warranty clams, failure 19 rates, field reports and executive reviews. Instead of producing all responsive documents in its 20 possession, custody, or control, Defendant’s responses contain boilerplate objections and refusal 21 to produce any documents, often without any justification. GM has not produced documents 22 regarding the efficacy of the TSBs and recalls that it issued that were performed on the Subject 23 Vehicle. GM has not produced any the National Highway Traffic Safety Administration 24 disclosures it should have made pursuant to 49 CFR 579.21 including Early Warning Reports, 25 complaints, communications, and TREAD Reports. 26 Santana v. FCA Ruling 27 36. Attached hereto as Exhibit 16 is a true and correct copy of the recently issued 28 Santana v. FCA US, LLC, No. G057244, 2020 WL 6261439, at *7 (Cal. Ct. App. Sept. 29, 2020), DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 9 1 finding that internal emails between engineers are relevant to civil penalties and a manufacturer’s 2 affirmative duty to promptly offer repurchase regardless of whether Plaintiff asked for a buyback 3 prior to filing suit. 4 37. The importance of email production in discovery were squarely addressed in the 5 recently certified for publication decision Santana v. FCA US, LLC Court of Appeal, 4th Appellate 6 District, Division 3, Case Nos. G057244 and G058020 (Opinion Issued September 29, 2020). In 7 that case against the same Defendant, the Court considered evidence in the form of email 8 communications between Defendant’s employees produced in discovery. Those employees 9 characterized repair procedures for electrical architecture defects as “a temporary work around” 10 and “a good MacGyver trick.” (Id.) The Court found that this evidence supported finding that 11 Defendant’s violations of the Song Beverly Act were willful, entitling the Plaintiff to a civil 12 penalty. If Defendant possesses internal investigations or communications about the problems 13 Plaintiff experienced with her own Transmission Defects and Infotainment Defects, then those 14 are surely discoverable here too. 15 38. To date, GM has not searched for any responsive emails or ESI. GM completely 16 refuses to meet and confer with Plaintiff the search and production of responsive ESI, including 17 emails. 18 Communications with the NHTSA 19 39. Attached hereto as Exhibit 17 is a true and correct copy of 49 CFR § 579.21 20 (Reporting requirements for manufacturers of 5,000 or more light vehicles annually), which sets 21 forth reports that are submitted by Defendant to the National Highway Traffic Safety 22 Administration (hereinafter “NHTSA”) and that can be produced here without undue burden. 23 Indeed, manufacturers are required under federal law to track and report information regarding its 24 defective vehicles. See 49 C.F.R. § 579.21 (“Reporting requirements for manufacturers of 5,000 25 or more light vehicles annually”). These federally mandated databases, which track each 26 complaint, report, or warranty repair by certain code (e.g., defect codes, part numbers, etc.) 27 include the customer complaint database, filed reports (e.g., dealers contacting Defendant and 28 informing them about the defects they cannot repair), Warranty Databases (repairs made DECLARATION OF NINO SANAIA IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE 10 1 consumers about specific defects). 2 40. Attached hereto as Exhibit 18 is a true and correct copy of Defendant’s requirement 3 to report ALL recalls to NHTSA, obtained from https://www.nhtsa.gov/sites/nhtsa.dot.gov/ 4 files/documents/14218-mvsdefectsandrecalls_041619-v2-tag.pdf 5 41. Attached hereto as Exhibit 19 is a true and correct copy of the Federal Law 6 requiring Defendant to prepare Early Warning Reports to NHTSA, this was obtained from 7 https://www.govinfo.gov/content/pkg/CFR-2015-title49-vol7/pdf/CFR-2015-title49-vol7-part5 8 79.pdf and https://www.nhtsa.gov/vehicle-manufacturers/early-warning-reporting 9 42. Attached hereto as Exhibit 20 is a true and correct copy of the TREAD act, 10 requiring Defendant’s participation, this was obtained from https://www.congress.gov/106 11 /plaws/publ414/PLAW-106publ414.pdf 12 43. Defendant continues to withhold all NHSTA documents (Early Warning reports, 13 TREAD Reports, communications and complaints). 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 17 18 DATED: January 23, 2023 19 ___________________________ JAMI I. 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