Preview
KNIGHT LAW GROUP LLP
1
Roger Kirnos (SBN 283163)
2 RogerK@knightlaw.com
Phil A Thomas (SBN 248517)
3 philt@knightlaw.com
10250 Constellation Blvd., Suite 2500
4
Los Angeles, CA 90067
5 Tel: (310) 552-2250
Fax: (310) 552-7973
6
7 Attorneys for Plaintiff,
SHAWN AVERY
8
SUPERIOR COURT OF CALIFORNIA
9
10 COUNTY OF MONTEREY
11 SHAWN AVERY, Case No.: 23CV000503
Unlimited Jurisdiction
12
Plaintiff, PLAINTIFF’S SEPARATE
13 STATEMENT IN SUPPORT OF
vs. MOTION TO COMPEL FURTHER
14 RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, AND
15 REQUEST FOR SANCTIONS
GENERAL MOTORS LLC, a Delaware
16 Limited Liability Company, and DOES 1 [Submitted concurrently with Notice of
through 10, inclusive, Motion to Compel, Memorandum of Points
17 and Authorities, [Proposed] Order and
Declaration of Phil A Thomas.]
18
Hearing Date: April 5, 2024
19 Hearing Time: 8:30 a.m.
Defendants. Department: 13A
20
21
22
Date Filed: February 16, 2023
23 Trial Date: December 16, 2024
24
25
26
27
28
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
TO ALL INTERESTED PARTIES AND TO ATTORNEYS OF RECORD:
1
Plaintiff SHAWN AVERY (“Plaintiff”), submits the following Separate Statement in
2
Support of the Motion to Compel Further Discovery Responses from Defendant General Motors,
3
LLC and Request for Sanctions.
4
PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION
5
JUDICIAL COUNCIL DEFINITIONS
6
The following definitions are approved by the California Judicial Council and are not
7
subject to objection:
8
1. The words “YOU” and “YOUR” refer to GENERAL MOTORS LLC and/or any
9
related entity, predecessor, parent, subsidiary and/or affiliate, employee, agent (including, but not
10
limited to, any mortgage servicing agent), or any person acting or purporting to act on Defendant,
11
GENERAL MOTORS LLC’s behalf.
12
2. The word “DOCUMENT” and “DOCUMENTS” refers to all matters that fall
13
within the definition of Evidence Code §250, and includes written or printed matter of any kind,
14
including the originals and all non-identical copies thereof, whether different from the original by
15
reason of any notation made on such copies or otherwise including, but not limited to, the
16
following: advertisements, booklets, brochures, pamphlets, circulars, notices, periodicals, papers,
17
contracts, agreements, photographs, minutes, memoranda, messages, appraisals, analyses, reports,
18
financial calculations and representations, invoices, accounting and diary entries, inventory sheets,
19
diaries, appointment books or calendars, teletypes, facsimiles, ledgers, trial balances,
20
correspondence, telegrams, press releases, notes, working papers, drawings, schedules,
21
tabulations, projections, mails, information or programs stored in a computer (whether or not ever
22
printed out or displayed), and all drafts, alterations, modifications, changes or amendments of any
23
of the foregoing, and all graphic or manual records or representations of any kind including, but
24
not limited to, the following: microfiche, microfilm, audiotapes, videotapes, recordings and motion
25
pictures, and all electronic, mechanical or electronic records or representations of any kind
26
including, but not limited to, the following: Tapes, cassettes, discs, magnetic cards and recordings.
27
“DOCUMENT” and “DOCUMENTS” expressly includes all electronic records, including, but not
28
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 limited to electronic communications, mail, word-processing files, computer presentations,
2 spreadsheets, and image files.
3 3. “PERSON” includes any natural person, firm, association, organization,
4 partnership, business, trust, corporation, or public entity.
5 4. “SUBJECT VEHICLE” refers to the vehicle which is the subject of this lawsuit and
6 identified as the 2017 Chevrolet SILVERADO 1500, VIN: 3GCUKSEJ7HG363086.
7 REQUESTS FOR PRODUCTION
8 REQUEST FOR PRODUCTION NO. 16:
9 All of YOUR warranty claims policy and procedure manual(s) from 2018 to the present.
10 RESPONSE TO REQUEST FOR PRODUCTION NO. 16:
11 GM objects to this Request on grounds it is overbroad and seeks documents that are
12 irrelevant and not reasonably calculated to lead to the discovery of admissible evidence as it is not
13 limited in scope to the SUBJECT VEHICLE. GM also objects to this Request on grounds it is
14 burdensome and oppressive, and that compliance would be unreasonably difficult and expensive
15 considering the needs of the case, the amount in controversy, and the importance of the issues at
16 stake in the litigation. This is a simple, individual lemon law case with limited issues and this
17 Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 61
18 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the Song-Beverly
19 Consumer Warranty Act is entirely unrelated and incommensurate to the scope and breadth of this
20 Request. GM also objects to this Request to the extent it seeks confidential, proprietary and trade
21 secret information in the form of GM’s internal policies and procedures. GM further objects to this
22 Request to the extent it seeks information protected by the attorney-client privilege and/or work
23 product doctrine. No documents will be produced.
24 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED:
25 Code Compliance
26 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure,
27 section 2031.240 states that two requirements must be satisfied for a responding party to properly
28 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must
2 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd.
3 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify
4 those items which fall into the category of item in demand to which an objection is made.”
5 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.)
6 Defendant’s objection does not make any effort to comply with the code by identifying
7 with particularity any document to which the objections is made or set forth the specific ground
8 for the objections. Verified code-compliant responses are the only way to ensure that Defendant
9 will indeed produce all responsive documents, rather than merely of a subset of requested
10 documents that Defendant chooses to produce.
11 Specificity
12 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil
13 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by
14 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”.
15 The specificity requirement in the statute implies that the categories be “reasonably particularized
16 from the standpoint of the party who is subjected to the burden of producing the materials.”
17 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53
18 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the
19 materials sought to be produced and the issues involved in the case.” (Id. at 218-219)
20 Plaintiff have narrowed the scope of their Requests for Production of Documents by
21 identifying a particular time period during which Plaintiff experienced defects and non-
22 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only
23 documents evidencing problems and complaints similar to those experienced by Plaintiff.
24 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and
25 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s
26 objection must be overruled and responsive documents must be produced.
27
28 Overbreadth
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Plaintiff’s Request seeks documents that are related to the problems exhibited by the
2 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness
3 and ambiguity, and similar specificity objections are valid only if the question or request is totally
4 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is
5 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained
6 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health
7 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496).
8 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to
9 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair
10 orders are kept in Defendant’s own databases, information sources that are under Defendant’s
11 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and
12 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle.
13 Burden
14 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any
15 evidence establishing the quantum of work required to comply, however, so its objections that
16 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v.
17 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence
18 showing the quantum of work required, while to support an objection of oppression there must be
19 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the
20 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative
21 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he
22 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM
23 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that
24 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the
25 burden to substantiate its objection by illustrating why the specific request is so onerous or
26 burdensome, such as the hours and costs involved to obtain the information. Because GM did not
27 provide the necessary evidentiary showing to justify the burdensome and oppressive objection,
28 this objection must be overruled.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Relevance
2 GM objected to this Request on the grounds that this request is “not reasonably calculated
3 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant
4 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial,
5 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These
6 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial
7 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether
8 the information sought would necessarily be admissible at trial, but whether the request seeks
9 information that might reasonably lead to other evidence that would be admissible at trial. (Davies
10 v. Super. Ct. (1984) 36 Cal.3d 291, 201.)
11 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia)
12 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value,
13 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair
14 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not
15 require (as a discrete “element”) that Plaintiff prove the existence of a widespread manufacturing
16 defect or nonconformity, nonetheless such evidence is clearly relevant and the law allows for these
17 issues to be investigated and admitted into evidence where applicable.
18 Information about other similar vehicle complaints may demonstrate the existence of a
19 widespread defect or non-conformity, or show when it arose, and may also demonstrate GM’s
20 knowledge of widespread problems with the vehicle and GM’s failure to act despite this
21 knowledge. The Court of Appeal addressed GM’s argument that evidence of other vehicles was
22 prejudicial and irrelevant. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138.) The
23 court held: “other vehicle’ testimony was not unduly prejudicial. It did not concern simply other
24 vehicles. It was limited to the [defective component] in [p]laintiffs’ truck and other vehicles.
25 [plaintiffs’ expert] described what Ford itself had done to notify dealers and technicians about
26 problems with this [defective component] model. Thus, everything about which he testified that
27 applied to other vehicles applied equally to [p]laintiffs’ vehicle. Such evidence certainly was
28 probative and not unduly prejudicial.” (Id. at 154.)
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Donlen is not an outlier in this regard. In Doppes v. Bentley Motors Inc. (2009) 174
2 Cal.App.4th 967, the trial court ordered production of “repair invoices or other records of odor
3 reduction work and/or odor repair on all Bentleys from model years 1999 to 2006, all documents
4 recording approval for installation of odor reduction kits for model years 1999 to 2006, all
5 documents denying approval for installation of odor reduction kits for model years 1999 to 2006,
6 any correspondence (other than email) from Bentley dealers to Bentley USA or UK regarding
7 customer odor complaints, … and all other documents of any description referring or relating to
8 the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006.”
9 The Court of Appeal upheld the trial court’s order.
10 Information about other similar vehicle complaints may also be relevant to refute GM’s
11 claim that Plaintiff are responsible for the vehicle’s problems, as alleged in GM’s Affirmative
12 Defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in
13 unauthorized or unreasonable use of the Subject Vehicle. Under any interpretation, the documents
14 Plaintiff seeks are “reasonably calculated to lead to admissible evidence,” which is the standard
15 that governs here. The documents requested by Plaintiff here are plainly relevant to the issues in
16 this lawsuit, and would likely be admissible at trial, and certainly are calculated to lead to the
17 discovery of admissible information.
18 Civil Penalties
19 Moreover, this evidence could demonstrate GM’s practices in handling consumer
20 complaints, and therefore be relevant to GM’s willful violation of the Song-Beverly Act. (Johnson
21 v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1198-1199; Oregel v. American Isuzu Motors Inc.
22 (1995) 90 Cal.App.4th 1094; Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th
23 174, 186.) Under the Song-Beverly Act, Plaintiff may be entitled to an award of civil penalties.
24 (Cal. Civ. Code § 1794(c).) To obtain civil penalties, Plaintiff must establish that Defendant’s
25 refusal to promptly repurchase or replace Plaintiff’s vehicle was “willful.” (Cal. Civ. Code §
26 1794(c).) In determining what constitutes a “willful” violation of the Song-Beverly Act, California
27 courts have previously stated, “[a] decision made without the use of reasonably available
28 information germane to that decision is not a reasonable, good faith decision.” (Lukather v.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 General Motors, LLC., (2010) 181 Cal.App.4th 1041, 1051; see also Johnson v. Ford Motor
2 Company (2005) 35 Cal.4th 1191, 1204 (“a civil defendant’s recidivism remains pertinent to an
3 assessment of culpability.”).)
4 Defendant’s broad treatment and handling of other similar repurchases and complaints by
5 owners of 2017 Chevrolet SILVERADO 1500 vehicles is relevant to prove that Defendant had
6 knowledge of widespread defects and non-conformities in other 2017 Chevrolet SILVERADO
7 1500 vehicles. If Defendant had considered this information, it would have known that such
8 problems are common and that Plaintiff’s vehicle should be repurchased or replaced pursuant to
9 the Song-Beverly Act. Defendant’s knowledge of the frequency of repurchases and complaints by
10 other owners of the 2017 Chevrolet SILVERADO 1500 vehicles for non-conformities similar to
11 those experienced by Plaintiff is relevant to prove that Defendant failed to use information
12 reasonably available to Defendant in its evaluation and ultimate decision to refuse to repurchase
13 or replace Plaintiff’s defective 2017 Chevrolet SILVERADO 1500. Thus, the evidence sought by
14 this request is relevant to prove that Defendant did not act in good faith and thus willfully failed
15 to comply with its obligations under the Song-Beverly Act.
16 Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are
17 “reasonably calculated to lead to admissible evidence.” (§ 2020.010; Sinaiko Healthcare
18 Consulting, Inc., supra, 148 Cal.App.4th at p. 402.) The standard for relevance during discovery
19 is broad, and doubt is generally resolved in favor of permitting discovery. (Code Civ. Proc. §
20 2020.010; Davies v. Super. Ct. (1984) 36 Cal.3d 291, 301; Colonial Life & Acc. Ins. Co. v. Super.
21 Ct. (1982) 31 Cal.3d 785, 790; Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546; Zellerino
22 v. Brown (1991) 235 Cal.App.3d 1097, 1108-1109.)
23 Third Party Privacy and Attorney-Client and Work Product Doctrine
24 Defendant’s objections based on privacy and privilege are improper and should be
25 overruled. GM objects to this Request claiming a violation of the “privacy rights of third parties.”
26 Under Hoffman Corp. v. Super. Ct. (1985) 172 Cal.App.3d 357, a complete customer list and
27 contact information would be deniable as a “fishing expedition,” but relevant and targeted
28 information about similar complaints and incidents (which may include third party information)
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 would not. (Id. at pp. 361, 364-365.) Plaintiff seeks only relevant and targeted information;
2 accordingly, the objection based on “privacy rights of third parties” is inapplicable in this case.
3 GM’s responses make no offers of proof concerning the information purported to be confidential
4 or private; bare, conclusory allegations are not sufficient.
5 Finally, GM asserts attorney-client privilege and work product protection, however, GM
6 fails to establish how the information sought by the aforementioned requests is privileged, or to
7 include any privilege log or similar document to allow Plaintiff to evaluate the claimed privilege
8 as to any documents withheld. “The purpose of a “privilege log” is to provide a specific factual
9 description of documents in aid of substantiating a claim of privilege in connection with a request
10 for document production.” (Hernandez v. Super. Ct. (2003), 112 Cal.App.4th 285, 292.) Since no
11 details or documents are included in these boilerplate objections, Plaintiff have no means of
12 ascertaining whether GM truly is entitled to these protections, or if this is merely a dilatory tactic
13 to evade its responsibilities under the Code. (Best Products, Inc. v. Super. Ct. (2004) 119
14 Cal.App.4th 1181.) Accordingly, GM’s privilege and privacy objections should be overruled, or
15 GM should be compelled to provide a privilege log for each of those responses.
16 REQUEST FOR PRODUCTION NO. 19:
17 All DOCUMENTS which describe the procedures used by YOU for evaluating and
18 responding to complaints by California consumers regarding vehicles YOU manufactured or
19 distributed since 2018.
20 RESPONSE TO REQUEST FOR PRODUCTION NO. 19:
21 GM objects to this Request on grounds the term “describe” is overbroad, vague and
22 ambiguous. GM also objects to this Request on grounds it is overbroad and seeks documents that
23 are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it
24 is not limited in scope to the SUBJECT VEHICLE at issue in this action. GM also objects to this
25 Request on grounds it is burdensome and oppressive, and that compliance would be unreasonably
26 difficult and expensive considering the needs of the case, the amount in controversy, and the
27 importance of the issues at stake in the litigation. This is a simple, individual lemon law case with
28 limited issues and this Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the
2 Song-Beverly Consumer Warranty Act is entirely unrelated and incommensurate to the scope and
3 breadth of this Request. GM also objects to this Request to the extent it seeks confidential,
4 proprietary and trade secret information in the form of GM’s internal policies and procedures. GM
5 further objects to this Request to the extent it seeks information protected by the attorney-client
6 privilege and/or work-product doctrine. No documents will be produced.
7 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED:
8 Code Compliance
9 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure,
10 section 2031.240 states that two requirements must be satisfied for a responding party to properly
11 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible
12 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must
13 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd.
14 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify
15 those items which fall into the category of item in demand to which an objection is made.”
16 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.)
17 Defendant’s objection does not make any effort to comply with the code by identifying
18 with particularity any document to which the objections is made or set forth the specific ground
19 for the objections. Verified code-compliant responses are the only way to ensure that Defendant
20 will indeed produce all responsive documents, rather than merely of a subset of requested
21 documents that Defendant chooses to produce.
22 Specificity
23 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil
24 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by
25 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”.
26 The specificity requirement in the statute implies that the categories be “reasonably particularized
27 from the standpoint of the party who is subjected to the burden of producing the materials.”
28 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the
2 materials sought to be produced and the issues involved in the case.” (Id. at 218-219)
3 Plaintiff have narrowed the scope of their Requests for Production of Documents by
4 identifying a particular time period during which Plaintiff experienced defects and non-
5 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only
6 documents evidencing problems and complaints similar to those experienced by Plaintiff.
7 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and
8 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s
9 objection must be overruled and responsive documents must be produced.
10 Overbreadth
11 Plaintiff’s Request seeks documents that are related to the problems exhibited by the
12 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness
13 and ambiguity, and similar specificity objections are valid only if the question or request is totally
14 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is
15 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained
16 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health
17 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496).
18 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to
19 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair
20 orders are kept in Defendant’s own databases, information sources that are under Defendant’s
21 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and
22 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle.
23 Burden
24 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any
25 evidence establishing the quantum of work required to comply, however, so its objections that
26 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v.
27 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence
28 showing the quantum of work required, while to support an objection of oppression there must be
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the
2 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative
3 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he
4 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM
5 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that
6 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the
7 burden to substantiate its objection by illustrating why the specific request is so onerous or
8 burdensome, such as the hours and costs involved to obtain the information. Because GM did not
9 provide the necessary evidentiary showing to justify the burdensome and oppressive objection,
10 this objection must be overruled.
11 Relevance
12 GM objected to this Request on the grounds that this request is “not reasonably calculated
13 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant
14 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial,
15 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These
16 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial
17 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether
18 the information sought would necessarily be admissible at trial, but whether the request seeks
19 information that might reasonably lead to other evidence that would be admissible at trial. (Davies
20 v. Super. Ct. (1984) 36 Cal.3d 291, 201.)
21 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia)
22 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value,
23 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair
24 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not
25 require (as a discrete “element”) that Plaintiff prove the existence of a widespread manufacturing
26 defect or nonconformity, nonetheless such evidence is clearly relevant and the law allows for these
27 issues to be investigated and admitted into evidence where applicable.
28 Information about other similar vehicle complaints may demonstrate the existence of a
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 widespread defect or non-conformity, or show when it arose, and may also demonstrate GM’s
2 knowledge of widespread problems with the vehicle and GM’s failure to act despite this
3 knowledge. The Court of Appeal addressed GM’s argument that evidence of other vehicles was
4 prejudicial and irrelevant. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138.) The
5 court held: “other vehicle’ testimony was not unduly prejudicial. It did not concern simply other
6 vehicles. It was limited to the [defective component] in [p]laintiffs’ truck and other vehicles.
7 [plaintiffs’ expert] described what Ford itself had done to notify dealers and technicians about
8 problems with this [defective component] model. Thus, everything about which he testified that
9 applied to other vehicles applied equally to [p]laintiffs’ vehicle. Such evidence certainly was
10 probative and not unduly prejudicial.” (Id. at 154.)
11 Donlen is not an outlier in this regard. In Doppes v. Bentley Motors Inc. (2009) 174
12 Cal.App.4th 967, the trial court ordered production of “repair invoices or other records of odor
13 reduction work and/or odor repair on all Bentleys from model years 1999 to 2006, all documents
14 recording approval for installation of odor reduction kits for model years 1999 to 2006, all
15 documents denying approval for installation of odor reduction kits for model years 1999 to 2006,
16 any correspondence (other than email) from Bentley dealers to Bentley USA or UK regarding
17 customer odor complaints, … and all other documents of any description referring or relating to
18 the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006.”
19 The Court of Appeal upheld the trial court’s order.
20 Information about other similar vehicle complaints may also be relevant to refute GM’s
21 claim that Plaintiff are responsible for the vehicle’s problems, as alleged in GM’s Affirmative
22 Defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in
23 unauthorized or unreasonable use of the Subject Vehicle. Under any interpretation, the documents
24 Plaintiff seeks are “reasonably calculated to lead to admissible evidence,” which is the standard
25 that governs here. The documents requested by Plaintiff here are plainly relevant to the issues in
26 this lawsuit, and would likely be admissible at trial, and certainly are calculated to lead to the
27 discovery of admissible information.
28 Civil Penalties
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Moreover, this evidence could demonstrate GM’s practices in handling consumer
2 complaints, and therefore be relevant to GM’s willful violation of the Song-Beverly Act. (Johnson
3 v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1198-1199; Oregel v. American Isuzu Motors Inc.
4 (1995) 90 Cal.App.4th 1094; Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th
5 174, 186.) Under the Song-Beverly Act, Plaintiff may be entitled to an award of civil penalties.
6 (Cal. Civ. Code § 1794(c).) To obtain civil penalties, Plaintiff must establish that Defendant’s
7 refusal to promptly repurchase or replace Plaintiff’s vehicle was “willful.” (Cal. Civ. Code §
8 1794(c).) In determining what constitutes a “willful” violation of the Song-Beverly Act, California
9 courts have previously stated, “[a] decision made without the use of reasonably available
10 information germane to that decision is not a reasonable, good faith decision.” (Lukather v.
11 General Motors, LLC., (2010) 181 Cal.App.4th 1041, 1051; see also Johnson v. Ford Motor
12 Company (2005) 35 Cal.4th 1191, 1204 (“a civil defendant’s recidivism remains pertinent to an
13 assessment of culpability.”).)
14 Defendant’s broad treatment and handling of other similar repurchases and complaints by
15 owners of 2017 Chevrolet SILVERADO 1500 vehicles is relevant to prove that Defendant had
16 knowledge of widespread defects and non-conformities in other 2017 Chevrolet SILVERADO
17 1500 vehicles. If Defendant had considered this information, it would have known that such
18 problems are common and that Plaintiff’s vehicle should be repurchased or replaced pursuant to
19 the Song-Beverly Act. Defendant’s knowledge of the frequency of repurchases and complaints by
20 other owners of the 2017 Chevrolet SILVERADO 1500 vehicles for non-conformities similar to
21 those experienced by Plaintiff is relevant to prove that Defendant failed to use information
22 reasonably available to Defendant in its evaluation and ultimate decision to refuse to repurchase
23 or replace Plaintiff’s defective 2017 Chevrolet SILVERADO 1500. Thus, the evidence sought by
24 this request is relevant to prove that Defendant did not act in good faith and thus willfully failed
25 to comply with its obligations under the Song-Beverly Act.
26 Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are
27 “reasonably calculated to lead to admissible evidence.” (§ 2020.010; Sinaiko Healthcare
28 Consulting, Inc., supra, 148 Cal.App.4th at p. 402.) The standard for relevance during discovery
-14-
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 is broad, and doubt is generally resolved in favor of permitting discovery. (Code Civ. Proc. §
2 2020.010; Davies v. Super. Ct. (1984) 36 Cal.3d 291, 301; Colonial Life & Acc. Ins. Co. v. Super.
3 Ct. (1982) 31 Cal.3d 785, 790; Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546; Zellerino
4 v. Brown (1991) 235 Cal.App.3d 1097, 1108-1109.)
5 Third Party Privacy and Attorney-Client and Work Product Doctrine
6 Defendant’s objections based on privacy and privilege are improper and should be
7 overruled. GM objects to this Request claiming a violation of the “privacy rights of third parties.”
8 Under Hoffman Corp. v. Super. Ct. (1985) 172 Cal.App.3d 357, a complete customer list and
9 contact information would be deniable as a “fishing expedition,” but relevant and targeted
10 information about similar complaints and incidents (which may include third party information)
11 would not. (Id. at pp. 361, 364-365.) Plaintiff seeks only relevant and targeted information;
12 accordingly, the objection based on “privacy rights of third parties” is inapplicable in this case.
13 GM’s responses make no offers of proof concerning the information purported to be confidential
14 or private; bare, conclusory allegations are not sufficient.
15 Finally, GM asserts attorney-client privilege and work product protection, however, GM
16 fails to establish how the information sought by the aforementioned requests is privileged, or to
17 include any privilege log or similar document to allow Plaintiff to evaluate the claimed privilege
18 as to any documents withheld. “The purpose of a “privilege log” is to provide a specific factual
19 description of documents in aid of substantiating a claim of privilege in connection with a request
20 for document production.” (Hernandez v. Super. Ct. (2003), 112 Cal.App.4th 285, 292.) Since no
21 details or documents are included in these boilerplate objections, Plaintiff have no means of
22 ascertaining whether GM truly is entitled to these protections, or if this is merely a dilatory tactic
23 to evade its responsibilities under the Code. (Best Products, Inc. v. Super. Ct. (2004) 119
24 Cal.App.4th 1181.) Accordingly, GM’s privilege and privacy objections should be overruled, or
25 GM should be compelled to provide a privilege log for each of those responses.
26
27
28 REQUEST FOR PRODUCTION NO. 20
-15-
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 All DOCUMENTS which describe policies, procedures, and/or instructions since 2018
2 that YOUR employees and agents should follow when evaluating a customer request for a refund
3 of their money paid towards or owed on a motor vehicle manufactured or distributed by YOU.
4 RESPONSE TO REQUEST FOR PRODUCTION NO. 20:
5 GM objects to this Request on grounds the term “describe” is overbroad, vague and
6 ambiguous. GM also objects to this Request on grounds it is overbroad and seeks documents that
7 are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it
8 is not limited in scope to the SUBJECT VEHICLE at issue in this action. GM also objects to this
9 Request on grounds it is burdensome and oppressive, and that compliance would be unreasonably
10 difficult and expensive considering the needs of the case, the amount in controversy, and the
11 importance of the issues at stake in the litigation. This is a simple, individual lemon law case with
12 limited issues and this Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53
13 Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the
14 Song-Beverly Consumer Warranty Act is entirely unrelated and incommensurate to the scope and
15 breadth of this Request. GM also objects to this Request to the extent it seeks confidential,
16 proprietary and trade secret information in the form of GM’s internal policies and procedures. GM
17 further objects to this Request to the extent it seeks information protected by the attorney-client
18 privilege and/or work-product doctrine. No documents will be produced.
19 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED:
20 Code Compliance
21 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure,
22 section 2031.240 states that two requirements must be satisfied for a responding party to properly
23 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible
24 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must
25 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd.
26 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify
27 those items which fall into the category of item in demand to which an objection is made.”
28 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.)
-16-
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Defendant’s objection does not make any effort to comply with the code by identifying
2 with particularity any document to which the objections is made or set forth the specific ground
3 for the objections. Verified code-compliant responses are the only way to ensure that Defendant
4 will indeed produce all responsive documents, rather than merely of a subset of requested
5 documents that Defendant chooses to produce.
6 Specificity
7 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil
8 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by
9 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”.
10 The specificity requirement in the statute implies that the categories be “reasonably particularized
11 from the standpoint of the party who is subjected to the burden of producing the materials.”
12 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53
13 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the
14 materials sought to be produced and the issues involved in the case.” (Id. at 218-219)
15 Plaintiff have narrowed the scope of their Requests for Production of Documents by
16 identifying a particular time period during which Plaintiff experienced defects and non-
17 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only
18 documents evidencing problems and complaints similar to those experienced by Plaintiff.
19 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and
20 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s
21 objection must be overruled and responsive documents must be produced.
22 Overbreadth
23 Plaintiff’s Request seeks documents that are related to the problems exhibited by the
24 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness
25 and ambiguity, and similar specificity objections are valid only if the question or request is totally
26 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is
27 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained
28 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health
-17-
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496).
2 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to
3 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair
4 orders are kept in Defendant’s own databases, information sources that are under Defendant’s
5 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and
6 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle.
7 Burden
8 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any
9 evidence establishing the quantum of work required to comply, however, so its objections that
10 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v.
11 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence
12 showing the quantum of work required, while to support an objection of oppression there must be
13 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the
14 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative
15 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he
16 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM
17 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that
18 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the
19 burden to substantiate its objection by illustrating why the specific request is so onerous or
20 burdensome, such as the hours and costs involved to obtain the information. Because GM did not
21 provide the necessary evidentiary showing to justify the burdensome and oppressive objection,
22 this objection must be overruled.
23 Relevance
24 GM objected to this Request on the grounds that this request is “not reasonably calculated
25 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant
26 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial,
27 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These
28 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial
-18-
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether
2 the information sought would necessarily be admissible at trial, but whether the request seeks
3 information that might reasonably lead to other evidence that would be admissible at trial. (Davies
4 v. Super. Ct. (1984) 36 Cal.3d 291, 201.)
5 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia)
6 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value,
7 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair
8 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not
9 require (as a discrete “element”) that Plaintiff prove the exis
Preview
KNIGHT LAW GROUP LLP 1 Roger Kirnos (SBN 283163) 2 RogerK@knightlaw.com Phil A Thomas (SBN 248517) 3 philt@knightlaw.com 10250 Constellation Blvd., Suite 2500 4 Los Angeles, CA 90067 5 Tel: (310) 552-2250 Fax: (310) 552-7973 6 7 Attorneys for Plaintiff, SHAWN AVERY 8 SUPERIOR COURT OF CALIFORNIA 9 10 COUNTY OF MONTEREY 11 SHAWN AVERY, Case No.: 23CV000503 Unlimited Jurisdiction 12 Plaintiff, PLAINTIFF’S SEPARATE 13 STATEMENT IN SUPPORT OF vs. MOTION TO COMPEL FURTHER 14 RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, AND 15 REQUEST FOR SANCTIONS GENERAL MOTORS LLC, a Delaware 16 Limited Liability Company, and DOES 1 [Submitted concurrently with Notice of through 10, inclusive, Motion to Compel, Memorandum of Points 17 and Authorities, [Proposed] Order and Declaration of Phil A Thomas.] 18 Hearing Date: April 5, 2024 19 Hearing Time: 8:30 a.m. Defendants. Department: 13A 20 21 22 Date Filed: February 16, 2023 23 Trial Date: December 16, 2024 24 25 26 27 28 -1- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS TO ALL INTERESTED PARTIES AND TO ATTORNEYS OF RECORD: 1 Plaintiff SHAWN AVERY (“Plaintiff”), submits the following Separate Statement in 2 Support of the Motion to Compel Further Discovery Responses from Defendant General Motors, 3 LLC and Request for Sanctions. 4 PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION 5 JUDICIAL COUNCIL DEFINITIONS 6 The following definitions are approved by the California Judicial Council and are not 7 subject to objection: 8 1. The words “YOU” and “YOUR” refer to GENERAL MOTORS LLC and/or any 9 related entity, predecessor, parent, subsidiary and/or affiliate, employee, agent (including, but not 10 limited to, any mortgage servicing agent), or any person acting or purporting to act on Defendant, 11 GENERAL MOTORS LLC’s behalf. 12 2. The word “DOCUMENT” and “DOCUMENTS” refers to all matters that fall 13 within the definition of Evidence Code §250, and includes written or printed matter of any kind, 14 including the originals and all non-identical copies thereof, whether different from the original by 15 reason of any notation made on such copies or otherwise including, but not limited to, the 16 following: advertisements, booklets, brochures, pamphlets, circulars, notices, periodicals, papers, 17 contracts, agreements, photographs, minutes, memoranda, messages, appraisals, analyses, reports, 18 financial calculations and representations, invoices, accounting and diary entries, inventory sheets, 19 diaries, appointment books or calendars, teletypes, facsimiles, ledgers, trial balances, 20 correspondence, telegrams, press releases, notes, working papers, drawings, schedules, 21 tabulations, projections, mails, information or programs stored in a computer (whether or not ever 22 printed out or displayed), and all drafts, alterations, modifications, changes or amendments of any 23 of the foregoing, and all graphic or manual records or representations of any kind including, but 24 not limited to, the following: microfiche, microfilm, audiotapes, videotapes, recordings and motion 25 pictures, and all electronic, mechanical or electronic records or representations of any kind 26 including, but not limited to, the following: Tapes, cassettes, discs, magnetic cards and recordings. 27 “DOCUMENT” and “DOCUMENTS” expressly includes all electronic records, including, but not 28 -2- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 limited to electronic communications, mail, word-processing files, computer presentations, 2 spreadsheets, and image files. 3 3. “PERSON” includes any natural person, firm, association, organization, 4 partnership, business, trust, corporation, or public entity. 5 4. “SUBJECT VEHICLE” refers to the vehicle which is the subject of this lawsuit and 6 identified as the 2017 Chevrolet SILVERADO 1500, VIN: 3GCUKSEJ7HG363086. 7 REQUESTS FOR PRODUCTION 8 REQUEST FOR PRODUCTION NO. 16: 9 All of YOUR warranty claims policy and procedure manual(s) from 2018 to the present. 10 RESPONSE TO REQUEST FOR PRODUCTION NO. 16: 11 GM objects to this Request on grounds it is overbroad and seeks documents that are 12 irrelevant and not reasonably calculated to lead to the discovery of admissible evidence as it is not 13 limited in scope to the SUBJECT VEHICLE. GM also objects to this Request on grounds it is 14 burdensome and oppressive, and that compliance would be unreasonably difficult and expensive 15 considering the needs of the case, the amount in controversy, and the importance of the issues at 16 stake in the litigation. This is a simple, individual lemon law case with limited issues and this 17 Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 61 18 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the Song-Beverly 19 Consumer Warranty Act is entirely unrelated and incommensurate to the scope and breadth of this 20 Request. GM also objects to this Request to the extent it seeks confidential, proprietary and trade 21 secret information in the form of GM’s internal policies and procedures. GM further objects to this 22 Request to the extent it seeks information protected by the attorney-client privilege and/or work 23 product doctrine. No documents will be produced. 24 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED: 25 Code Compliance 26 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure, 27 section 2031.240 states that two requirements must be satisfied for a responding party to properly 28 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible -3- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must 2 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd. 3 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify 4 those items which fall into the category of item in demand to which an objection is made.” 5 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.) 6 Defendant’s objection does not make any effort to comply with the code by identifying 7 with particularity any document to which the objections is made or set forth the specific ground 8 for the objections. Verified code-compliant responses are the only way to ensure that Defendant 9 will indeed produce all responsive documents, rather than merely of a subset of requested 10 documents that Defendant chooses to produce. 11 Specificity 12 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil 13 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by 14 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”. 15 The specificity requirement in the statute implies that the categories be “reasonably particularized 16 from the standpoint of the party who is subjected to the burden of producing the materials.” 17 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53 18 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the 19 materials sought to be produced and the issues involved in the case.” (Id. at 218-219) 20 Plaintiff have narrowed the scope of their Requests for Production of Documents by 21 identifying a particular time period during which Plaintiff experienced defects and non- 22 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only 23 documents evidencing problems and complaints similar to those experienced by Plaintiff. 24 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and 25 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s 26 objection must be overruled and responsive documents must be produced. 27 28 Overbreadth -4- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Plaintiff’s Request seeks documents that are related to the problems exhibited by the 2 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness 3 and ambiguity, and similar specificity objections are valid only if the question or request is totally 4 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is 5 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained 6 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health 7 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496). 8 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to 9 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair 10 orders are kept in Defendant’s own databases, information sources that are under Defendant’s 11 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and 12 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle. 13 Burden 14 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any 15 evidence establishing the quantum of work required to comply, however, so its objections that 16 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v. 17 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence 18 showing the quantum of work required, while to support an objection of oppression there must be 19 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the 20 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative 21 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he 22 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM 23 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that 24 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the 25 burden to substantiate its objection by illustrating why the specific request is so onerous or 26 burdensome, such as the hours and costs involved to obtain the information. Because GM did not 27 provide the necessary evidentiary showing to justify the burdensome and oppressive objection, 28 this objection must be overruled. -5- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Relevance 2 GM objected to this Request on the grounds that this request is “not reasonably calculated 3 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant 4 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, 5 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These 6 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial 7 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether 8 the information sought would necessarily be admissible at trial, but whether the request seeks 9 information that might reasonably lead to other evidence that would be admissible at trial. (Davies 10 v. Super. Ct. (1984) 36 Cal.3d 291, 201.) 11 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia) 12 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value, 13 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair 14 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not 15 require (as a discrete “element”) that Plaintiff prove the existence of a widespread manufacturing 16 defect or nonconformity, nonetheless such evidence is clearly relevant and the law allows for these 17 issues to be investigated and admitted into evidence where applicable. 18 Information about other similar vehicle complaints may demonstrate the existence of a 19 widespread defect or non-conformity, or show when it arose, and may also demonstrate GM’s 20 knowledge of widespread problems with the vehicle and GM’s failure to act despite this 21 knowledge. The Court of Appeal addressed GM’s argument that evidence of other vehicles was 22 prejudicial and irrelevant. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138.) The 23 court held: “other vehicle’ testimony was not unduly prejudicial. It did not concern simply other 24 vehicles. It was limited to the [defective component] in [p]laintiffs’ truck and other vehicles. 25 [plaintiffs’ expert] described what Ford itself had done to notify dealers and technicians about 26 problems with this [defective component] model. Thus, everything about which he testified that 27 applied to other vehicles applied equally to [p]laintiffs’ vehicle. Such evidence certainly was 28 probative and not unduly prejudicial.” (Id. at 154.) -6- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Donlen is not an outlier in this regard. In Doppes v. Bentley Motors Inc. (2009) 174 2 Cal.App.4th 967, the trial court ordered production of “repair invoices or other records of odor 3 reduction work and/or odor repair on all Bentleys from model years 1999 to 2006, all documents 4 recording approval for installation of odor reduction kits for model years 1999 to 2006, all 5 documents denying approval for installation of odor reduction kits for model years 1999 to 2006, 6 any correspondence (other than email) from Bentley dealers to Bentley USA or UK regarding 7 customer odor complaints, … and all other documents of any description referring or relating to 8 the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006.” 9 The Court of Appeal upheld the trial court’s order. 10 Information about other similar vehicle complaints may also be relevant to refute GM’s 11 claim that Plaintiff are responsible for the vehicle’s problems, as alleged in GM’s Affirmative 12 Defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in 13 unauthorized or unreasonable use of the Subject Vehicle. Under any interpretation, the documents 14 Plaintiff seeks are “reasonably calculated to lead to admissible evidence,” which is the standard 15 that governs here. The documents requested by Plaintiff here are plainly relevant to the issues in 16 this lawsuit, and would likely be admissible at trial, and certainly are calculated to lead to the 17 discovery of admissible information. 18 Civil Penalties 19 Moreover, this evidence could demonstrate GM’s practices in handling consumer 20 complaints, and therefore be relevant to GM’s willful violation of the Song-Beverly Act. (Johnson 21 v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1198-1199; Oregel v. American Isuzu Motors Inc. 22 (1995) 90 Cal.App.4th 1094; Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th 23 174, 186.) Under the Song-Beverly Act, Plaintiff may be entitled to an award of civil penalties. 24 (Cal. Civ. Code § 1794(c).) To obtain civil penalties, Plaintiff must establish that Defendant’s 25 refusal to promptly repurchase or replace Plaintiff’s vehicle was “willful.” (Cal. Civ. Code § 26 1794(c).) In determining what constitutes a “willful” violation of the Song-Beverly Act, California 27 courts have previously stated, “[a] decision made without the use of reasonably available 28 information germane to that decision is not a reasonable, good faith decision.” (Lukather v. -7- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 General Motors, LLC., (2010) 181 Cal.App.4th 1041, 1051; see also Johnson v. Ford Motor 2 Company (2005) 35 Cal.4th 1191, 1204 (“a civil defendant’s recidivism remains pertinent to an 3 assessment of culpability.”).) 4 Defendant’s broad treatment and handling of other similar repurchases and complaints by 5 owners of 2017 Chevrolet SILVERADO 1500 vehicles is relevant to prove that Defendant had 6 knowledge of widespread defects and non-conformities in other 2017 Chevrolet SILVERADO 7 1500 vehicles. If Defendant had considered this information, it would have known that such 8 problems are common and that Plaintiff’s vehicle should be repurchased or replaced pursuant to 9 the Song-Beverly Act. Defendant’s knowledge of the frequency of repurchases and complaints by 10 other owners of the 2017 Chevrolet SILVERADO 1500 vehicles for non-conformities similar to 11 those experienced by Plaintiff is relevant to prove that Defendant failed to use information 12 reasonably available to Defendant in its evaluation and ultimate decision to refuse to repurchase 13 or replace Plaintiff’s defective 2017 Chevrolet SILVERADO 1500. Thus, the evidence sought by 14 this request is relevant to prove that Defendant did not act in good faith and thus willfully failed 15 to comply with its obligations under the Song-Beverly Act. 16 Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are 17 “reasonably calculated to lead to admissible evidence.” (§ 2020.010; Sinaiko Healthcare 18 Consulting, Inc., supra, 148 Cal.App.4th at p. 402.) The standard for relevance during discovery 19 is broad, and doubt is generally resolved in favor of permitting discovery. (Code Civ. Proc. § 20 2020.010; Davies v. Super. Ct. (1984) 36 Cal.3d 291, 301; Colonial Life & Acc. Ins. Co. v. Super. 21 Ct. (1982) 31 Cal.3d 785, 790; Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546; Zellerino 22 v. Brown (1991) 235 Cal.App.3d 1097, 1108-1109.) 23 Third Party Privacy and Attorney-Client and Work Product Doctrine 24 Defendant’s objections based on privacy and privilege are improper and should be 25 overruled. GM objects to this Request claiming a violation of the “privacy rights of third parties.” 26 Under Hoffman Corp. v. Super. Ct. (1985) 172 Cal.App.3d 357, a complete customer list and 27 contact information would be deniable as a “fishing expedition,” but relevant and targeted 28 information about similar complaints and incidents (which may include third party information) -8- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 would not. (Id. at pp. 361, 364-365.) Plaintiff seeks only relevant and targeted information; 2 accordingly, the objection based on “privacy rights of third parties” is inapplicable in this case. 3 GM’s responses make no offers of proof concerning the information purported to be confidential 4 or private; bare, conclusory allegations are not sufficient. 5 Finally, GM asserts attorney-client privilege and work product protection, however, GM 6 fails to establish how the information sought by the aforementioned requests is privileged, or to 7 include any privilege log or similar document to allow Plaintiff to evaluate the claimed privilege 8 as to any documents withheld. “The purpose of a “privilege log” is to provide a specific factual 9 description of documents in aid of substantiating a claim of privilege in connection with a request 10 for document production.” (Hernandez v. Super. Ct. (2003), 112 Cal.App.4th 285, 292.) Since no 11 details or documents are included in these boilerplate objections, Plaintiff have no means of 12 ascertaining whether GM truly is entitled to these protections, or if this is merely a dilatory tactic 13 to evade its responsibilities under the Code. (Best Products, Inc. v. Super. Ct. (2004) 119 14 Cal.App.4th 1181.) Accordingly, GM’s privilege and privacy objections should be overruled, or 15 GM should be compelled to provide a privilege log for each of those responses. 16 REQUEST FOR PRODUCTION NO. 19: 17 All DOCUMENTS which describe the procedures used by YOU for evaluating and 18 responding to complaints by California consumers regarding vehicles YOU manufactured or 19 distributed since 2018. 20 RESPONSE TO REQUEST FOR PRODUCTION NO. 19: 21 GM objects to this Request on grounds the term “describe” is overbroad, vague and 22 ambiguous. GM also objects to this Request on grounds it is overbroad and seeks documents that 23 are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it 24 is not limited in scope to the SUBJECT VEHICLE at issue in this action. GM also objects to this 25 Request on grounds it is burdensome and oppressive, and that compliance would be unreasonably 26 difficult and expensive considering the needs of the case, the amount in controversy, and the 27 importance of the issues at stake in the litigation. This is a simple, individual lemon law case with 28 limited issues and this Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53 -9- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the 2 Song-Beverly Consumer Warranty Act is entirely unrelated and incommensurate to the scope and 3 breadth of this Request. GM also objects to this Request to the extent it seeks confidential, 4 proprietary and trade secret information in the form of GM’s internal policies and procedures. GM 5 further objects to this Request to the extent it seeks information protected by the attorney-client 6 privilege and/or work-product doctrine. No documents will be produced. 7 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED: 8 Code Compliance 9 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure, 10 section 2031.240 states that two requirements must be satisfied for a responding party to properly 11 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible 12 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must 13 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd. 14 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify 15 those items which fall into the category of item in demand to which an objection is made.” 16 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.) 17 Defendant’s objection does not make any effort to comply with the code by identifying 18 with particularity any document to which the objections is made or set forth the specific ground 19 for the objections. Verified code-compliant responses are the only way to ensure that Defendant 20 will indeed produce all responsive documents, rather than merely of a subset of requested 21 documents that Defendant chooses to produce. 22 Specificity 23 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil 24 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by 25 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”. 26 The specificity requirement in the statute implies that the categories be “reasonably particularized 27 from the standpoint of the party who is subjected to the burden of producing the materials.” 28 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53 -10- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the 2 materials sought to be produced and the issues involved in the case.” (Id. at 218-219) 3 Plaintiff have narrowed the scope of their Requests for Production of Documents by 4 identifying a particular time period during which Plaintiff experienced defects and non- 5 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only 6 documents evidencing problems and complaints similar to those experienced by Plaintiff. 7 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and 8 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s 9 objection must be overruled and responsive documents must be produced. 10 Overbreadth 11 Plaintiff’s Request seeks documents that are related to the problems exhibited by the 12 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness 13 and ambiguity, and similar specificity objections are valid only if the question or request is totally 14 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is 15 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained 16 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health 17 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496). 18 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to 19 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair 20 orders are kept in Defendant’s own databases, information sources that are under Defendant’s 21 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and 22 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle. 23 Burden 24 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any 25 evidence establishing the quantum of work required to comply, however, so its objections that 26 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v. 27 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence 28 showing the quantum of work required, while to support an objection of oppression there must be -11- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the 2 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative 3 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he 4 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM 5 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that 6 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the 7 burden to substantiate its objection by illustrating why the specific request is so onerous or 8 burdensome, such as the hours and costs involved to obtain the information. Because GM did not 9 provide the necessary evidentiary showing to justify the burdensome and oppressive objection, 10 this objection must be overruled. 11 Relevance 12 GM objected to this Request on the grounds that this request is “not reasonably calculated 13 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant 14 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, 15 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These 16 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial 17 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether 18 the information sought would necessarily be admissible at trial, but whether the request seeks 19 information that might reasonably lead to other evidence that would be admissible at trial. (Davies 20 v. Super. Ct. (1984) 36 Cal.3d 291, 201.) 21 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia) 22 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value, 23 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair 24 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not 25 require (as a discrete “element”) that Plaintiff prove the existence of a widespread manufacturing 26 defect or nonconformity, nonetheless such evidence is clearly relevant and the law allows for these 27 issues to be investigated and admitted into evidence where applicable. 28 Information about other similar vehicle complaints may demonstrate the existence of a -12- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 widespread defect or non-conformity, or show when it arose, and may also demonstrate GM’s 2 knowledge of widespread problems with the vehicle and GM’s failure to act despite this 3 knowledge. The Court of Appeal addressed GM’s argument that evidence of other vehicles was 4 prejudicial and irrelevant. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138.) The 5 court held: “other vehicle’ testimony was not unduly prejudicial. It did not concern simply other 6 vehicles. It was limited to the [defective component] in [p]laintiffs’ truck and other vehicles. 7 [plaintiffs’ expert] described what Ford itself had done to notify dealers and technicians about 8 problems with this [defective component] model. Thus, everything about which he testified that 9 applied to other vehicles applied equally to [p]laintiffs’ vehicle. Such evidence certainly was 10 probative and not unduly prejudicial.” (Id. at 154.) 11 Donlen is not an outlier in this regard. In Doppes v. Bentley Motors Inc. (2009) 174 12 Cal.App.4th 967, the trial court ordered production of “repair invoices or other records of odor 13 reduction work and/or odor repair on all Bentleys from model years 1999 to 2006, all documents 14 recording approval for installation of odor reduction kits for model years 1999 to 2006, all 15 documents denying approval for installation of odor reduction kits for model years 1999 to 2006, 16 any correspondence (other than email) from Bentley dealers to Bentley USA or UK regarding 17 customer odor complaints, … and all other documents of any description referring or relating to 18 the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006.” 19 The Court of Appeal upheld the trial court’s order. 20 Information about other similar vehicle complaints may also be relevant to refute GM’s 21 claim that Plaintiff are responsible for the vehicle’s problems, as alleged in GM’s Affirmative 22 Defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in 23 unauthorized or unreasonable use of the Subject Vehicle. Under any interpretation, the documents 24 Plaintiff seeks are “reasonably calculated to lead to admissible evidence,” which is the standard 25 that governs here. The documents requested by Plaintiff here are plainly relevant to the issues in 26 this lawsuit, and would likely be admissible at trial, and certainly are calculated to lead to the 27 discovery of admissible information. 28 Civil Penalties -13- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Moreover, this evidence could demonstrate GM’s practices in handling consumer 2 complaints, and therefore be relevant to GM’s willful violation of the Song-Beverly Act. (Johnson 3 v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1198-1199; Oregel v. American Isuzu Motors Inc. 4 (1995) 90 Cal.App.4th 1094; Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th 5 174, 186.) Under the Song-Beverly Act, Plaintiff may be entitled to an award of civil penalties. 6 (Cal. Civ. Code § 1794(c).) To obtain civil penalties, Plaintiff must establish that Defendant’s 7 refusal to promptly repurchase or replace Plaintiff’s vehicle was “willful.” (Cal. Civ. Code § 8 1794(c).) In determining what constitutes a “willful” violation of the Song-Beverly Act, California 9 courts have previously stated, “[a] decision made without the use of reasonably available 10 information germane to that decision is not a reasonable, good faith decision.” (Lukather v. 11 General Motors, LLC., (2010) 181 Cal.App.4th 1041, 1051; see also Johnson v. Ford Motor 12 Company (2005) 35 Cal.4th 1191, 1204 (“a civil defendant’s recidivism remains pertinent to an 13 assessment of culpability.”).) 14 Defendant’s broad treatment and handling of other similar repurchases and complaints by 15 owners of 2017 Chevrolet SILVERADO 1500 vehicles is relevant to prove that Defendant had 16 knowledge of widespread defects and non-conformities in other 2017 Chevrolet SILVERADO 17 1500 vehicles. If Defendant had considered this information, it would have known that such 18 problems are common and that Plaintiff’s vehicle should be repurchased or replaced pursuant to 19 the Song-Beverly Act. Defendant’s knowledge of the frequency of repurchases and complaints by 20 other owners of the 2017 Chevrolet SILVERADO 1500 vehicles for non-conformities similar to 21 those experienced by Plaintiff is relevant to prove that Defendant failed to use information 22 reasonably available to Defendant in its evaluation and ultimate decision to refuse to repurchase 23 or replace Plaintiff’s defective 2017 Chevrolet SILVERADO 1500. Thus, the evidence sought by 24 this request is relevant to prove that Defendant did not act in good faith and thus willfully failed 25 to comply with its obligations under the Song-Beverly Act. 26 Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are 27 “reasonably calculated to lead to admissible evidence.” (§ 2020.010; Sinaiko Healthcare 28 Consulting, Inc., supra, 148 Cal.App.4th at p. 402.) The standard for relevance during discovery -14- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 is broad, and doubt is generally resolved in favor of permitting discovery. (Code Civ. Proc. § 2 2020.010; Davies v. Super. Ct. (1984) 36 Cal.3d 291, 301; Colonial Life & Acc. Ins. Co. v. Super. 3 Ct. (1982) 31 Cal.3d 785, 790; Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546; Zellerino 4 v. Brown (1991) 235 Cal.App.3d 1097, 1108-1109.) 5 Third Party Privacy and Attorney-Client and Work Product Doctrine 6 Defendant’s objections based on privacy and privilege are improper and should be 7 overruled. GM objects to this Request claiming a violation of the “privacy rights of third parties.” 8 Under Hoffman Corp. v. Super. Ct. (1985) 172 Cal.App.3d 357, a complete customer list and 9 contact information would be deniable as a “fishing expedition,” but relevant and targeted 10 information about similar complaints and incidents (which may include third party information) 11 would not. (Id. at pp. 361, 364-365.) Plaintiff seeks only relevant and targeted information; 12 accordingly, the objection based on “privacy rights of third parties” is inapplicable in this case. 13 GM’s responses make no offers of proof concerning the information purported to be confidential 14 or private; bare, conclusory allegations are not sufficient. 15 Finally, GM asserts attorney-client privilege and work product protection, however, GM 16 fails to establish how the information sought by the aforementioned requests is privileged, or to 17 include any privilege log or similar document to allow Plaintiff to evaluate the claimed privilege 18 as to any documents withheld. “The purpose of a “privilege log” is to provide a specific factual 19 description of documents in aid of substantiating a claim of privilege in connection with a request 20 for document production.” (Hernandez v. Super. Ct. (2003), 112 Cal.App.4th 285, 292.) Since no 21 details or documents are included in these boilerplate objections, Plaintiff have no means of 22 ascertaining whether GM truly is entitled to these protections, or if this is merely a dilatory tactic 23 to evade its responsibilities under the Code. (Best Products, Inc. v. Super. Ct. (2004) 119 24 Cal.App.4th 1181.) Accordingly, GM’s privilege and privacy objections should be overruled, or 25 GM should be compelled to provide a privilege log for each of those responses. 26 27 28 REQUEST FOR PRODUCTION NO. 20 -15- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 All DOCUMENTS which describe policies, procedures, and/or instructions since 2018 2 that YOUR employees and agents should follow when evaluating a customer request for a refund 3 of their money paid towards or owed on a motor vehicle manufactured or distributed by YOU. 4 RESPONSE TO REQUEST FOR PRODUCTION NO. 20: 5 GM objects to this Request on grounds the term “describe” is overbroad, vague and 6 ambiguous. GM also objects to this Request on grounds it is overbroad and seeks documents that 7 are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, as it 8 is not limited in scope to the SUBJECT VEHICLE at issue in this action. GM also objects to this 9 Request on grounds it is burdensome and oppressive, and that compliance would be unreasonably 10 difficult and expensive considering the needs of the case, the amount in controversy, and the 11 importance of the issues at stake in the litigation. This is a simple, individual lemon law case with 12 limited issues and this Request violates Calcor Space Facility, Inc. v. Superior Court (1997) 53 13 Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff are entitled to relief under the 14 Song-Beverly Consumer Warranty Act is entirely unrelated and incommensurate to the scope and 15 breadth of this Request. GM also objects to this Request to the extent it seeks confidential, 16 proprietary and trade secret information in the form of GM’s internal policies and procedures. GM 17 further objects to this Request to the extent it seeks information protected by the attorney-client 18 privilege and/or work-product doctrine. No documents will be produced. 19 REASONS WHY A FURTHER RESPONSE SHOULD BE COMPELLED: 20 Code Compliance 21 Defendant’s response to this request is not Code-compliant. Code of Civil Procedure, 22 section 2031.240 states that two requirements must be satisfied for a responding party to properly 23 object to a demand. First, Defendant must “[i]dentify with particularity any document, tangible 24 thing… to which an objection is being made.” (§ 2031.240, subd. (b)(1).) Second, Defendant must 25 “[s]et forth clearly the extent of, and the specific ground for, the objection.” (§ 2031.240, subd. 26 (b)(2).) “Even where a party deems a demand to be objectionable, he [she, or it] still must identify 27 those items which fall into the category of item in demand to which an objection is made.” 28 (Standon Co. v. Sup. Ct. (1990) 225 Cal.App. 3d 898, 901.) -16- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Defendant’s objection does not make any effort to comply with the code by identifying 2 with particularity any document to which the objections is made or set forth the specific ground 3 for the objections. Verified code-compliant responses are the only way to ensure that Defendant 4 will indeed produce all responsive documents, rather than merely of a subset of requested 5 documents that Defendant chooses to produce. 6 Specificity 7 Plaintiff’s Request is reasonably particularized in compliance with Code of Civil 8 Procedure, section 2031.030, subdivision (c)(1). Defendant objects to Plaintiff’s Request by 9 claiming, “this request lacks the requisite specificity dictated by the Code of Civil Procedure. . . ”. 10 The specificity requirement in the statute implies that the categories be “reasonably particularized 11 from the standpoint of the party who is subjected to the burden of producing the materials.” 12 Plaintiff has satisfied this requirement. (Calcor Space Facility, Inc. v. Superior Court, (1997) 53 13 Cal.App.4th 216, 222.) Plaintiff has shown that there is a “reasonable relationship between the 14 materials sought to be produced and the issues involved in the case.” (Id. at 218-219) 15 Plaintiff have narrowed the scope of their Requests for Production of Documents by 16 identifying a particular time period during which Plaintiff experienced defects and non- 17 conformities with the Subject Vehicle. Plaintiff have further limited their Requests to include only 18 documents evidencing problems and complaints similar to those experienced by Plaintiff. 19 Additionally, Plaintiff have requested specific documents regarding Defendant’s policies and 20 procedures with regard to handling vehicle complaints and repurchase requests. Defendant’s 21 objection must be overruled and responsive documents must be produced. 22 Overbreadth 23 Plaintiff’s Request seeks documents that are related to the problems exhibited by the 24 Subject Vehicle and consumer complaints about those problems. Objections based on vagueness 25 and ambiguity, and similar specificity objections are valid only if the question or request is totally 26 unintelligible; otherwise, the party has a duty to answer if “the nature of the information sought is 27 apparent.” (Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783.) If the information can be obtained 28 from under Defendant’s control then Defendant may not plead ignorance. (Regency Health -17- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Services, Inc. v. Superior Court, (1998) 64 Cal.App.4th 1496). 2 Plaintiff’s Request is not “overbroad” as the information sought by Plaintiff is limited to 3 the specific defects and nonconformities identified in Plaintiff’s repair orders. Plaintiff’s repair 4 orders are kept in Defendant’s own databases, information sources that are under Defendant’s 5 control. As such, Defendant knows full well what information Plaintiff’s Request seeks, and 6 Defendant may not claim ignorance of the defects experienced by the Subject Vehicle. 7 Burden 8 GM objects that this Request is unduly burdensome and oppressive. GM fails to offer any 9 evidence establishing the quantum of work required to comply, however, so its objections that 10 these requests are unduly burdensome or oppressive are improper. (West Pico Furniture Co. v. 11 Super. Ct. (1961) 56 Cal.2d 407.) “The objection based upon burden must be sustained by evidence 12 showing the quantum of work required, while to support an objection of oppression there must be 13 some showing either of an intent to create an unreasonable burden or that the ultimate effect of the 14 burden is incommensurate with the result sought.” (Id. at 417.) There is a legislative 15 acknowledgment that some burden is inherent in all demands for discovery. (Id. at 418.) Yet, “[t]he 16 objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id.) GM 17 has failed to provide a declaration or affidavit to establish either the cost or quantum of work that 18 would be required to comply with Plaintiff’s Request at issue. As the objecting party, GM has the 19 burden to substantiate its objection by illustrating why the specific request is so onerous or 20 burdensome, such as the hours and costs involved to obtain the information. Because GM did not 21 provide the necessary evidentiary showing to justify the burdensome and oppressive objection, 22 this objection must be overruled. 23 Relevance 24 GM objected to this Request on the grounds that this request is “not reasonably calculated 25 to lead to the discovery of admissible evidence.” For discovery purposes, information is “relevant 26 to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, 27 or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These 28 standards are applied liberally, and any doubt is generally resolved in favor of discovery. (Colonial -18- PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The test for discovery is not whether 2 the information sought would necessarily be admissible at trial, but whether the request seeks 3 information that might reasonably lead to other evidence that would be admissible at trial. (Davies 4 v. Super. Ct. (1984) 36 Cal.3d 291, 201.) 5 To prove a cause of action under the Song-Beverly Act, Plaintiff must prove (inter alia) 6 that his vehicle had a defect covered by GM's warranty that substantially impaired the use, value, 7 or safety of the vehicle, which GM was unable to repair after a reasonable number of repair 8 attempts. (Civil Code §§ 1790 et seq.; CACI No. 3201.) While the Song-Beverly Act does not 9 require (as a discrete “element”) that Plaintiff prove the exis