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1 Nancy Zhang (SBN: 294675)
Alessandro Manno (SBN: 328746)
2 CONSUMER LAW EXPERTS, P.C.
800 Parkview Drive North
3
El Segundo, California 90245
4 Telephone: (310) 442-1410
Fax: (877) 566-8828
5 nancy@nolemon.com
sandro@nolemon.com
6
7 Attorneys for Plaintiff,
NANCY NAVARRETE
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11
12 NANCY NAVARRETE, an individual, Case No.: BCV-23-100406
13 Plaintiff, [Assigned to Hon. Judge Gregory Pulskamp in
14 Dept. J]
15 vs. PLAINTIFF’S REPLY TO DEFENDANT’S
OPPOSITION TO PLAINTIFF’S MOTION
16 TO COMPEL FURTHER RESPONSES
AND DOCUMENTS TO REQUEST FOR
17
GENERAL MOTORS LLC; and DOES 1 PRODUCTION OF DOCUMENTS, SET
18 through 50, inclusive, ONE
19 Defendants. [Concurrently filed with Supplemental
Declaration of Alessandro Manno and
20 Evidentiary Objections]
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Date: May 7, 2024
22 Time: 8:30 a.m.
Dept.: J
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Complaint Filed: February 8, 2023
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Trial Date: September 16, 2024
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 I. INTRODUCTION
2 Defendant General Motors LLC’s (“Defendant” or “GM”) arguments in its Opposition
3 are designed to deflect the Court’s attention from the true issues at the heart of this Motion,
4 and to further stonewall Plaintiff Nancy Navarrete’s (“Plaintiff”) discovery efforts. The simple
5 fact of this matter is, Defendant is far from full compliance with Plaintiff’s Requests for
6 Production of Documents. Defendant has made scant productions of documents which
7 comprise just a small fraction of the documents requested. Defendant has not produced the
8 vast majority of the sought-after documents, including any emails, underlying investigations,
9 root cause analyses, reports, complaints or complete warranty claims. As such, its document
10 production remains incomplete and outstanding. Nevertheless, in its supplemental document
11 production dated April 17, 2024, Defendant did provide the organizational charts and GM’s
12 Service Policies & Procedures Manual. Therefore, Plaintiff’s Request Nos. 39 and 51 are no
13 longer at issue.
14 However, Defendant states outright in its Opposition that it refuses to produce “one
15 single page more from GM to pursue her claims.” (Opposition, 2:5.)
16 Defendant also claims that Plaintiff somehow has not sufficiently met and conferred
17 prior to filing the Motion to Compel, a claim that is easily refuted by the series of letters
18 exchanged between counsel attached as Exhibits 11-16 to the present Motion. As illustrated in
19 the series of letters exchanged between counsel, GM’s counsel Defendant reiterated its refusal
20 to produce internal investigation documents related to same year, make, model vehicles, and
21 that it will only make partial production of documents. Plaintiff was forced to file the present
22 Motion, after it became clear that GM would not make full and complete production of
23 documents. (Manno Decl. to Motion to Compel, Exhs. 11-15; and Manno Supp. Decl. Ex. 16.)
24 Plaintiff’s moving papers establish good cause for production and seeks an order
25 compelling further responses and overruling Defendant’s boilerplate objections. Defendant’s
26 Opposition papers neither undermine the relevance of the requested materials nor provide a
27 legal basis to sustain its objections. Plaintiff’s Motion to Compel should thus be granted.
28 ///
1
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 II. PLAINTIFF SUFFICENTLY MET AND CONFERRED IN GOOD FAITH
2 Contrary to GM’s contentions, Plaintiff has met and conferred in good faith.
3 On December 15, 2023, Plaintiff first sent a letter to Defendant in which Plaintiff made
4 clear Defendant’s obligations in regards to electronically stored information (“ESI”) protocol.
5 Defendant never responded to Plaintiff’s December 15 meet and confer letter regarding ESI
6 discovery. (Manno Decl. ¶ 19, Ex. 11.)
7 On January 30, 2024, Plaintiff wrote another meet and confer letter to Defendant. In
8 this letter, Plaintiff comprehensively explained why Defendant’s responses were not sufficient
9 and its document production incomplete. (Manno Decl. ¶ 20, Ex. 12.)
10 On February 23, 2024, after realizing that Defendant never responded to the January 30
11 letter, Plaintiff sent a follow up email to Defendant. (Manno Decl. ¶ 21, Ex. 13.)
12 On March 7, 2024, after again noticing that Defendant never responded to the January
13 30 email, Plaintiff sent a second follow up email to Defendant. Also in this email, Plaintiff
14 requested an extension for this Motion, to allow for any meet and confer to occur. (Manno
15 Decl. ¶ 22, Ex. 13.)
16 On the same day of March 7, 2024, Defendant responded to Plaintiff by agreeing to the
17 extension request and stating that it will respond to Plaintiff’s January 30 letter. (Manno Decl.
18 ¶ 23, Ex. 13.)
19 On March 13, 2024, Defendant served a response to Plaintiff’s January 30 letter. In its
20 letter, Defendant stated its refusal to comply with ESI discovery, stood by its objections, and
21 stated its refusal to produce internal investigation documents relating to same year, make,
22 model vehicles as Plaintiff’s. (Manno Decl. ¶ 24, Ex. 14.)
23 On March 14, 2024, Plaintiff once more sent a letter to Defendant. In this letter,
24 Plaintiff addressed Defendant’s improper objections, and reiterated why Defendant is obligated
25 to produce documents related to same year, make, model vehicles and internal investigation
26 documents. Plaintiff specifically offered to narrow the scope of Plaintiff’s Requests by
27 inquiring about Defendant’s search engines and parameters. Concurrently with the letter,
28 Plaintiff returned a signed copy of the LASC Model Stipulation and Protective Order proposed
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 by Defendant, in the spirit of compromise to help facilitate the production of documents.
2 (Manno Decl. ¶ 25, Ex. 15.)
3 On April 17, 2024, nearly four weeks after this Motion was filed, Defendant sent a
4 response to Plaintiff’s March 14 letter. In its letter, Defendant ignored Plaintiff’s specific
5 inquiry regarding its search terms and parameters to assist in narrowing Plaintiff’s Requests, as
6 well as its obligation to produce internal investigation documents. (Manno Supp. Decl. ¶ 3,
7 Ex. 16.)
8 Only after Defendant made it clear that it flatly refuses to produce the requested
9 internal investigation documents and documents pertaining to same year, make, model, and
10 after Defendant ignored Plaintiff’s attempts to further narrow the scope of Defendant’s search,
11 Plaintiff was left with no other choice but to preserve his rights, and file the original Motion to
12 Compel by its filing deadline.
13 III. AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED
14 BECAUSE PLAINTIFF ESTABLISHED GOOD CAUSE FOR PRODUCTION
15 AND DEFENDANT FAILED TO JUSTIFY ITS OBJECTIONS
16 Plaintiff has provided sufficient facts to demonstrate good cause for the requested
17 discovery. Plaintiff purchased a defective 2020 Chevrolet Silverado which suffered from the
18 ongoing Transmission Defect and Audio System Defect. (Manno Decl. ¶¶ 3-5.) Plaintiff
19 presented the vehicle to Defendant to repair the defects on at least four (4) occasions for the
20 subject Transmission Defect and on at least three (3) occasions for the subject Audio System
21 Defect, all within the warranty period. However, the subject defects are unrepairable. (Id.)
22 Defendant was aware of the Transmission Defect and Audio System Defect in vehicles of the
23 same year, make, and model as Plaintiff’s vehicle, which was evidenced by the numerous
24 Technical Service Bulletins the Defendant has issued in regards to these defects. (Manno
25 Decl. ¶¶ 6-13, Exhs. 1-8.) In spite of its statutory obligations, Defendant failed to repurchase
26 the defective vehicle. Furthermore, Defendant denied liability in its Answer, and in its
27 Responses to Plaintiff’s Requests for Admission and continues withholding discovery that will
28 prove both GM’s liability for failing to repurchase the vehicle and subject Defendant to civil
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 penalties.
2 A. GM’s Claims That Plaintiff’s Requests Are Overbroad Is Misleading And
3 Unsupported By The Facts
4 GM asserts Plaintiff’s discovery requests are overbroad in terms of scope and defined
5 defects. To the contrary, Plaintiff has narrowly tailored the requests to documents concerning
6 only the Transmission Defect and Audio System Defect in vehicles of the same year, make,
7 and model as Plaintiff’s vehicle. Furthermore, the Defect definitions were carefully
8 constructed based upon Plaintiff’s documented complaints and repairs, as well as GM’s own
9 verbiage from its TSBs and Recalls. (Manno Decl. ¶¶ 6-13, Ex. 1-8.)
10 During course of meet and confer, Plaintiff specifically offered to narrow the scope of
11 his Requests by inquiring about Defendant’s search engines and parameters. However,
12 Defendant ignored Plaintiff’s attempt to work with Defendant to further narrow the scope of
13 Defendant’s search. Defendant is now foreclosed from asserting any objection that Plaintiff’s
14 requests are overbroad. (Manno Decl. ¶ 25, Ex. 15.)
15 B. There Is No Burden Involved in Producing the Documents
16 GM’s Opposition sets forth unsupported assertions about the burden of compliance.
17 Indeed, GM’s discussion of the alleged burden does not contain a single citation to any
18 evidentiary material. The Declaration of Alexandria Pappas submitted by Defendant in
19 support of its Opposition does not contain any material which describes the alleged burden.
20 Defendant has not submitted any other declarations or any admissible evidence which
21 adequately supports its claim of undue burden.
22 Precedent clearly holds that any claim of undue burden by the responding party must be
23 substantiated by evidence. See Coriell v. Super. Ct., 39 Cal. App. 3d 487, 492-93 (1974)
24 (holding that answering an interrogatory would require “considerable effort” and that “’many
25 hundreds of man hours’ and ‘approximately nine months’ [would] be required to supply
26 answers” was conclusory and not factual in nature—accordingly, the trial court erred in
27 relieving the responding party from providing further responses). Here, aside from arguments
28 in its brief, which are not evidence, GM offers no factual support regarding the alleged costs of
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 document production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015)
2 (“[A]rguments in briefs are not evidence.”)
3 As the responding party, GM had the initial burden of proving the requested ESI was
4 not reasonably accessible because of undue burden or expense. Civ. Proc. §2031.310(d).
5 GM’s opposition was completely silent as to the specific nature of the burden such as time,
6 labor, and monetary costs or prejudice incurred. (Quoting the general discovery provisions of
7 Civ. Proc. §2019.030). But see Civ. Proc. §2031.310(g)(4) (instructing trial court, when ruling
8 on a motion to compel ESI, to limit production where “the likely burden or expense of the
9 proposed discovery outweighs the likely benefit, taking into account the amount in
10 controversy, the resources of the parties, the importance of the issues in the litigation, and the
11 importance of the requested discovery in resolving the issues.”) (emphasis added).
12 GM also omitted relevant factors such as the “resources of the parties” and “the
13 importance of the requested discovery in resolving the issues.” More importantly, GM grossly
14 undervalues the amount in controversy by ignoring the treble damage and attorney fee
15 provisions of the Song-Beverly Act. Significantly, the legislatively imposed fee shifting
16 provisions are necessary to allow rational, budget-constrained consumers to seek a judicial
17 remedy when their rights are violated by powerful, well-financed defendants such as GM
18 Motor Company. See Covenant Mutual Ins. Co. v. Young, 179 Cal. App. 3d 318, 324-25
19 (explaining that unilateral fee-shifting is a legislative tool to “encourage[e] more effective
20 enforcement of [] important public policy” by allowing “injured parties to seek redress . . . in
21 situations where they otherwise would not find it economical to sue.”)1 Similarly, the civil
22 penalty provisions are necessary to deter powerful companies from violating the rights of
23 consumers in the first place. Absent such a provision, “a manufacturer who knew the
24 consumer was entitled to a refund or replacement might nevertheless be tempted to refuse
25 compliance in the hope the consumer would not persist, secure in the knowledge its liability
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“[W]here the Legislature wants to encourage litigation it can intervene to alter the decision-making
27 equation by instituting unilateral fee-shifting. . . This makes it economical to seek redress not just . . . where the
potential economic recovery is huge but in modest cases as well. . . Thus, as a result of the Legislature’s
28 intervention, more injured parties will be able to file more lawsuits and the public policy behind the substantive
statute—whatever it may be—will be enforced more broadly and more effectively.” 179 Cal. App. 3d at 325.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 was limited to a refund or replacement.” Kwan v. Mercedes-Benz of N. Am., 23 Cal. App. 4th
2 174, 184 (1994).
3 The Legislature need not have imposed unilateral fee shifting and treble damage
4 provisions in the Song-Beverly Act. Yet, because it chose to do so, the value of this case is at
5 least three times the amount estimated by GM. Irrespective of the exact value of the case,
6 however, it necessarily exceeds the burden of production because there is no burden of
7 production.
8 C. GM’s Claims of Trade Secret and Confidentiality Are Unsubstantiated
9 Lastly, GM claims that documents Plaintiff is seeking are confidential and trade secrets.
10 (Opposition, 7:17-28, 8:1-28, 9:1-7.) As an initial matter, objections based on confidentiality
11 are not proper grounds for withholding responsive information. (See Columbia Broadcasting
12 System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We know of no case holding
13 that this is a proper objection to an otherwise proper interrogatory.”].) The answering party
14 should seek a protective order to excuse the duty to answer. An objection is not the equivalent
15 of such a motion. (Id.)
16 To make matters worse, GM has not sufficiently demonstrated the why such heightened
17 and onerous protections are necessary. GM fails to produce any admissible evidentiary
18 materials showing the any of the documents contain protectable “trade secrets and other
19 confidential proprietary information.” Instead, GM asserts bare conclusions that rest solely
20 upon the uncontested observation that GM operates in a competitive environment. (Opposition,
21 7:20-21.) But cf. Nativi v. Deutsche Bank Nat’l Trust Co., 223 Cal. App. 4th 261, 318 (2014)
22 (noting that conclusory declarations lacking in factual specificity are insufficient to establish
23 good cause justifying a protective order). The unremarkable fact that GM operates in a market
24 economy, without more, is not the least bit probative of whether documents relating to the
25 Transmission Defect or Audio System Defect are confidential or contain trade secrets.
26 ///
27 ///
28 ///
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 D. Documents Relating to Other Vehicles and Internal Investigation
2 Documents are Crucial to Plaintiff’s Case, and GM is Obligated to Produce
3 Such Documents
4 Plaintiff’s Requests seek documents relating to same year, make, model vehicles and
5 GM’s internal investigation and analysis of the Transmission Defect and Audio System Defect
6 plaguing Plaintiff’s vehicle. In its Opposition, GM states its outright refusal to produce such
7 crucial documents. The reason for withholding such highly relevant documents is clear:
8 production of such documents will hurt GM’s case and help Plaintiff establish civil penalty
9 damages.
10 The requested materials responsive to Plaintiff’s Request Nos. 16, 19, 20, 21, 22, 25,
11 26, and 27 are reasonably calculated to lead to the discovery of documents regarding the nature
12 and duration of the defects, Defendant’s awareness of the Transmission Defect and Audio
13 System Defect, and Defendant’s inability to repair these defects. These materials are
14 admissible because they are probative of nonconformities with the Subject Vehicle, a
15 necessary element of Plaintiff’s case. Similarly, the documents are probative of Defendant’s
16 ability to repair Plaintiff’s vehicle within a reasonable number of opportunities. The
17 documents also include technical information about the defects that Plaintiff’s expert needs in
18 order to give reliable opinion testimony as to the nature of the defects and how those defects
19 impair the use, value, and safety of the vehicle. Cf. Donlen v. Ford Motor Co., 217 Cal. App.
20 4th 138, 154-55 (2013) (affirming admissibility of expert testimony regarding similar problems
21 in vehicles with same model transmission as the Plaintiff). Finally, the requested documents
22 go to Defendant’s knowledge of the defects and its ability to repair the defects. Consequently,
23 the materials are relevant to the issue of civil penalties (i.e. whether Defendant's refusal to
24 repurchase Plaintiff’s vehicle was based on a “good faith and reasonable belief that the facts
25 imposing the statutory obligations were not present”). Kwan, 23 Cal. App. 4th at 185.
26 In its Opposition, Defendant misstates the key holdings in Donlen v. Ford Motor
27 Company, 217 Cal.App.4th 138 (2013) or Doppes v. Bentley Motors, Inc., 174 Cal.App.4th
28 967 (2009), the two seminal lemon law cases that are directly on point with the present case.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 Both Donlen and Doppes support the scope of discoverable evidence requested here. Plaintiff
2 seeks documents relating to internal investigation and analysis concerning similar defects
3 experienced by Plaintiff and other customers. (See Donlen v. Ford Motor Co. (2013) 217
4 Cal.App.4th 138, 143-144, 153 [evidence of special service bulletins issued before Plaintiff
5 bought his truck and evidence of similar transmission problems in other trucks were relevant
6 and admissible]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978-979,
7 986 [documents of warranty complaints, service histories, and employee records concerning
8 the subject defect in all affected vehicles and the company’s responses and instructions re: cure
9 were discoverable and relevant to issue of Defendant’s good faith treatment of the problem].)
10 The discovery requests at issue in Doppes involved “all documents relating to (1)
11 customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model
12 vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor
13 used on that model; (3) all warranty repairs during the period of January 2002 to date of that
14 model; (4) all customer complaints2 of a wax oil smell caused by the rust inhibitor used on the
15 vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil
16 smell arising from the vehicle’s rust inhibitor.” Doppes, 174 Cal.App.4th at 973-974 (emphasis
17 added).
18 Moreover, Donlen noted that evidence of other similar failures in the same component
19 systems as in Plaintiff’s vehicle is admissible at the time of trial. Donlen, 217 Cal.App.4th at
20 154.3
21 Accordingly, based on Donlen and Doppes, Defendant must produce all internal
22 investigation documents, customer complaint documents, and documents related to same make,
23 model, year vehicles in this case.
24 ///
25 ///
26 2
Moreover, the jury was instructed that defendant had been ordered to produce “All other documents of
27 any description referring or relating to the odor problems or complaints of odors in Bentley automobiles for
model years 1999 to 2006….” Doppes, 174 Cal.App.4th at 986 (emphasis added).
3
28 Such discussion arose in connection with the Court’s rejection of Ford’s contention that the trial erred
in denying Ford’s motion in limine to exclude evidence of other vehicles. Donlen, supra, 217 Cal.App.4th at 154.
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 IV. CONCLUSION
2 Based on the foregoing, GM must be ordered to provide further responses and full and
3 complete responsive documents.
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5 Dated: April 29, 2024, CONSUMER LAW EXPERTS, PC
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7 _______________________________
Alessandro Manno
8 Attorney for Plaintiff,
NANCY NAVARRETE
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PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE
1 PROOF OF SERVICE
NANCY NALLELY NAVARRETE LEON v. GENERAL MOTORS, LLC
2 Case No.: BCV-23-100406
3 STATE OF CALIFORNIA, COUNTY OF KERN:
4
I am employed in the County of Los Angeles, State of California. I am over the age of
5 eighteen years and not a party to the within action. My business address is 800 Parkview Dr.
N, El Segundo, California, 90245.
6
On April 29, 2024, I served a copy of the foregoing document described as
7 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST
8 FOR PRODUCTION OF DOCUMENTS, SET ONE on the interested parties in this action
addressed as follows:
9
Mary Arens-McBride, Esq. (marensmcbride@erskinelaw.com)
10 Alexandria O Pappas, Esq. (apappas@erskinelaw.com)
(eservice-ca@erskinelaw.com; and mchung@erskinelaw.com)
11 THE ERSKINE LAW GROUP
12 1592 N. Batavia St., Suite 1A
Orange, CA 92867
13
[X] BY ELECTRONIC TRANSMISSION: I caused said document to be transmitted
14 from the email address robert@nolemon.com to the persons and email addresses listed above,
as last indicated by such persons on a document that was served on this party in the above-
15
entitled action.
16
I declare under penalty of perjury under the laws of the State of California that the
17 above is true and correct.
18 Executed on April 29, 2024, at Los Angeles, California.
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Robert Aguilar
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PROOF OF SERVICE
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1 Nancy Zhang (SBN: 294675) Alessandro Manno (SBN: 328746) 2 CONSUMER LAW EXPERTS, P.C. 800 Parkview Drive North 3 El Segundo, California 90245 4 Telephone: (310) 442-1410 Fax: (877) 566-8828 5 nancy@nolemon.com sandro@nolemon.com 6 7 Attorneys for Plaintiff, NANCY NAVARRETE 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 NANCY NAVARRETE, an individual, Case No.: BCV-23-100406 13 Plaintiff, [Assigned to Hon. Judge Gregory Pulskamp in 14 Dept. J] 15 vs. PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION 16 TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR 17 GENERAL MOTORS LLC; and DOES 1 PRODUCTION OF DOCUMENTS, SET 18 through 50, inclusive, ONE 19 Defendants. [Concurrently filed with Supplemental Declaration of Alessandro Manno and 20 Evidentiary Objections] 21 Date: May 7, 2024 22 Time: 8:30 a.m. Dept.: J 23 Complaint Filed: February 8, 2023 24 Trial Date: September 16, 2024 25 26 27 28 i PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 I. INTRODUCTION 2 Defendant General Motors LLC’s (“Defendant” or “GM”) arguments in its Opposition 3 are designed to deflect the Court’s attention from the true issues at the heart of this Motion, 4 and to further stonewall Plaintiff Nancy Navarrete’s (“Plaintiff”) discovery efforts. The simple 5 fact of this matter is, Defendant is far from full compliance with Plaintiff’s Requests for 6 Production of Documents. Defendant has made scant productions of documents which 7 comprise just a small fraction of the documents requested. Defendant has not produced the 8 vast majority of the sought-after documents, including any emails, underlying investigations, 9 root cause analyses, reports, complaints or complete warranty claims. As such, its document 10 production remains incomplete and outstanding. Nevertheless, in its supplemental document 11 production dated April 17, 2024, Defendant did provide the organizational charts and GM’s 12 Service Policies & Procedures Manual. Therefore, Plaintiff’s Request Nos. 39 and 51 are no 13 longer at issue. 14 However, Defendant states outright in its Opposition that it refuses to produce “one 15 single page more from GM to pursue her claims.” (Opposition, 2:5.) 16 Defendant also claims that Plaintiff somehow has not sufficiently met and conferred 17 prior to filing the Motion to Compel, a claim that is easily refuted by the series of letters 18 exchanged between counsel attached as Exhibits 11-16 to the present Motion. As illustrated in 19 the series of letters exchanged between counsel, GM’s counsel Defendant reiterated its refusal 20 to produce internal investigation documents related to same year, make, model vehicles, and 21 that it will only make partial production of documents. Plaintiff was forced to file the present 22 Motion, after it became clear that GM would not make full and complete production of 23 documents. (Manno Decl. to Motion to Compel, Exhs. 11-15; and Manno Supp. Decl. Ex. 16.) 24 Plaintiff’s moving papers establish good cause for production and seeks an order 25 compelling further responses and overruling Defendant’s boilerplate objections. Defendant’s 26 Opposition papers neither undermine the relevance of the requested materials nor provide a 27 legal basis to sustain its objections. Plaintiff’s Motion to Compel should thus be granted. 28 /// 1 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 II. PLAINTIFF SUFFICENTLY MET AND CONFERRED IN GOOD FAITH 2 Contrary to GM’s contentions, Plaintiff has met and conferred in good faith. 3 On December 15, 2023, Plaintiff first sent a letter to Defendant in which Plaintiff made 4 clear Defendant’s obligations in regards to electronically stored information (“ESI”) protocol. 5 Defendant never responded to Plaintiff’s December 15 meet and confer letter regarding ESI 6 discovery. (Manno Decl. ¶ 19, Ex. 11.) 7 On January 30, 2024, Plaintiff wrote another meet and confer letter to Defendant. In 8 this letter, Plaintiff comprehensively explained why Defendant’s responses were not sufficient 9 and its document production incomplete. (Manno Decl. ¶ 20, Ex. 12.) 10 On February 23, 2024, after realizing that Defendant never responded to the January 30 11 letter, Plaintiff sent a follow up email to Defendant. (Manno Decl. ¶ 21, Ex. 13.) 12 On March 7, 2024, after again noticing that Defendant never responded to the January 13 30 email, Plaintiff sent a second follow up email to Defendant. Also in this email, Plaintiff 14 requested an extension for this Motion, to allow for any meet and confer to occur. (Manno 15 Decl. ¶ 22, Ex. 13.) 16 On the same day of March 7, 2024, Defendant responded to Plaintiff by agreeing to the 17 extension request and stating that it will respond to Plaintiff’s January 30 letter. (Manno Decl. 18 ¶ 23, Ex. 13.) 19 On March 13, 2024, Defendant served a response to Plaintiff’s January 30 letter. In its 20 letter, Defendant stated its refusal to comply with ESI discovery, stood by its objections, and 21 stated its refusal to produce internal investigation documents relating to same year, make, 22 model vehicles as Plaintiff’s. (Manno Decl. ¶ 24, Ex. 14.) 23 On March 14, 2024, Plaintiff once more sent a letter to Defendant. In this letter, 24 Plaintiff addressed Defendant’s improper objections, and reiterated why Defendant is obligated 25 to produce documents related to same year, make, model vehicles and internal investigation 26 documents. Plaintiff specifically offered to narrow the scope of Plaintiff’s Requests by 27 inquiring about Defendant’s search engines and parameters. Concurrently with the letter, 28 Plaintiff returned a signed copy of the LASC Model Stipulation and Protective Order proposed 2 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 by Defendant, in the spirit of compromise to help facilitate the production of documents. 2 (Manno Decl. ¶ 25, Ex. 15.) 3 On April 17, 2024, nearly four weeks after this Motion was filed, Defendant sent a 4 response to Plaintiff’s March 14 letter. In its letter, Defendant ignored Plaintiff’s specific 5 inquiry regarding its search terms and parameters to assist in narrowing Plaintiff’s Requests, as 6 well as its obligation to produce internal investigation documents. (Manno Supp. Decl. ¶ 3, 7 Ex. 16.) 8 Only after Defendant made it clear that it flatly refuses to produce the requested 9 internal investigation documents and documents pertaining to same year, make, model, and 10 after Defendant ignored Plaintiff’s attempts to further narrow the scope of Defendant’s search, 11 Plaintiff was left with no other choice but to preserve his rights, and file the original Motion to 12 Compel by its filing deadline. 13 III. AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED 14 BECAUSE PLAINTIFF ESTABLISHED GOOD CAUSE FOR PRODUCTION 15 AND DEFENDANT FAILED TO JUSTIFY ITS OBJECTIONS 16 Plaintiff has provided sufficient facts to demonstrate good cause for the requested 17 discovery. Plaintiff purchased a defective 2020 Chevrolet Silverado which suffered from the 18 ongoing Transmission Defect and Audio System Defect. (Manno Decl. ¶¶ 3-5.) Plaintiff 19 presented the vehicle to Defendant to repair the defects on at least four (4) occasions for the 20 subject Transmission Defect and on at least three (3) occasions for the subject Audio System 21 Defect, all within the warranty period. However, the subject defects are unrepairable. (Id.) 22 Defendant was aware of the Transmission Defect and Audio System Defect in vehicles of the 23 same year, make, and model as Plaintiff’s vehicle, which was evidenced by the numerous 24 Technical Service Bulletins the Defendant has issued in regards to these defects. (Manno 25 Decl. ¶¶ 6-13, Exhs. 1-8.) In spite of its statutory obligations, Defendant failed to repurchase 26 the defective vehicle. Furthermore, Defendant denied liability in its Answer, and in its 27 Responses to Plaintiff’s Requests for Admission and continues withholding discovery that will 28 prove both GM’s liability for failing to repurchase the vehicle and subject Defendant to civil 3 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 penalties. 2 A. GM’s Claims That Plaintiff’s Requests Are Overbroad Is Misleading And 3 Unsupported By The Facts 4 GM asserts Plaintiff’s discovery requests are overbroad in terms of scope and defined 5 defects. To the contrary, Plaintiff has narrowly tailored the requests to documents concerning 6 only the Transmission Defect and Audio System Defect in vehicles of the same year, make, 7 and model as Plaintiff’s vehicle. Furthermore, the Defect definitions were carefully 8 constructed based upon Plaintiff’s documented complaints and repairs, as well as GM’s own 9 verbiage from its TSBs and Recalls. (Manno Decl. ¶¶ 6-13, Ex. 1-8.) 10 During course of meet and confer, Plaintiff specifically offered to narrow the scope of 11 his Requests by inquiring about Defendant’s search engines and parameters. However, 12 Defendant ignored Plaintiff’s attempt to work with Defendant to further narrow the scope of 13 Defendant’s search. Defendant is now foreclosed from asserting any objection that Plaintiff’s 14 requests are overbroad. (Manno Decl. ¶ 25, Ex. 15.) 15 B. There Is No Burden Involved in Producing the Documents 16 GM’s Opposition sets forth unsupported assertions about the burden of compliance. 17 Indeed, GM’s discussion of the alleged burden does not contain a single citation to any 18 evidentiary material. The Declaration of Alexandria Pappas submitted by Defendant in 19 support of its Opposition does not contain any material which describes the alleged burden. 20 Defendant has not submitted any other declarations or any admissible evidence which 21 adequately supports its claim of undue burden. 22 Precedent clearly holds that any claim of undue burden by the responding party must be 23 substantiated by evidence. See Coriell v. Super. Ct., 39 Cal. App. 3d 487, 492-93 (1974) 24 (holding that answering an interrogatory would require “considerable effort” and that “’many 25 hundreds of man hours’ and ‘approximately nine months’ [would] be required to supply 26 answers” was conclusory and not factual in nature—accordingly, the trial court erred in 27 relieving the responding party from providing further responses). Here, aside from arguments 28 in its brief, which are not evidence, GM offers no factual support regarding the alleged costs of 4 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 document production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015) 2 (“[A]rguments in briefs are not evidence.”) 3 As the responding party, GM had the initial burden of proving the requested ESI was 4 not reasonably accessible because of undue burden or expense. Civ. Proc. §2031.310(d). 5 GM’s opposition was completely silent as to the specific nature of the burden such as time, 6 labor, and monetary costs or prejudice incurred. (Quoting the general discovery provisions of 7 Civ. Proc. §2019.030). But see Civ. Proc. §2031.310(g)(4) (instructing trial court, when ruling 8 on a motion to compel ESI, to limit production where “the likely burden or expense of the 9 proposed discovery outweighs the likely benefit, taking into account the amount in 10 controversy, the resources of the parties, the importance of the issues in the litigation, and the 11 importance of the requested discovery in resolving the issues.”) (emphasis added). 12 GM also omitted relevant factors such as the “resources of the parties” and “the 13 importance of the requested discovery in resolving the issues.” More importantly, GM grossly 14 undervalues the amount in controversy by ignoring the treble damage and attorney fee 15 provisions of the Song-Beverly Act. Significantly, the legislatively imposed fee shifting 16 provisions are necessary to allow rational, budget-constrained consumers to seek a judicial 17 remedy when their rights are violated by powerful, well-financed defendants such as GM 18 Motor Company. See Covenant Mutual Ins. Co. v. Young, 179 Cal. App. 3d 318, 324-25 19 (explaining that unilateral fee-shifting is a legislative tool to “encourage[e] more effective 20 enforcement of [] important public policy” by allowing “injured parties to seek redress . . . in 21 situations where they otherwise would not find it economical to sue.”)1 Similarly, the civil 22 penalty provisions are necessary to deter powerful companies from violating the rights of 23 consumers in the first place. Absent such a provision, “a manufacturer who knew the 24 consumer was entitled to a refund or replacement might nevertheless be tempted to refuse 25 compliance in the hope the consumer would not persist, secure in the knowledge its liability 26 1 “[W]here the Legislature wants to encourage litigation it can intervene to alter the decision-making 27 equation by instituting unilateral fee-shifting. . . This makes it economical to seek redress not just . . . where the potential economic recovery is huge but in modest cases as well. . . Thus, as a result of the Legislature’s 28 intervention, more injured parties will be able to file more lawsuits and the public policy behind the substantive statute—whatever it may be—will be enforced more broadly and more effectively.” 179 Cal. App. 3d at 325. 5 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 was limited to a refund or replacement.” Kwan v. Mercedes-Benz of N. Am., 23 Cal. App. 4th 2 174, 184 (1994). 3 The Legislature need not have imposed unilateral fee shifting and treble damage 4 provisions in the Song-Beverly Act. Yet, because it chose to do so, the value of this case is at 5 least three times the amount estimated by GM. Irrespective of the exact value of the case, 6 however, it necessarily exceeds the burden of production because there is no burden of 7 production. 8 C. GM’s Claims of Trade Secret and Confidentiality Are Unsubstantiated 9 Lastly, GM claims that documents Plaintiff is seeking are confidential and trade secrets. 10 (Opposition, 7:17-28, 8:1-28, 9:1-7.) As an initial matter, objections based on confidentiality 11 are not proper grounds for withholding responsive information. (See Columbia Broadcasting 12 System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We know of no case holding 13 that this is a proper objection to an otherwise proper interrogatory.”].) The answering party 14 should seek a protective order to excuse the duty to answer. An objection is not the equivalent 15 of such a motion. (Id.) 16 To make matters worse, GM has not sufficiently demonstrated the why such heightened 17 and onerous protections are necessary. GM fails to produce any admissible evidentiary 18 materials showing the any of the documents contain protectable “trade secrets and other 19 confidential proprietary information.” Instead, GM asserts bare conclusions that rest solely 20 upon the uncontested observation that GM operates in a competitive environment. (Opposition, 21 7:20-21.) But cf. Nativi v. Deutsche Bank Nat’l Trust Co., 223 Cal. App. 4th 261, 318 (2014) 22 (noting that conclusory declarations lacking in factual specificity are insufficient to establish 23 good cause justifying a protective order). The unremarkable fact that GM operates in a market 24 economy, without more, is not the least bit probative of whether documents relating to the 25 Transmission Defect or Audio System Defect are confidential or contain trade secrets. 26 /// 27 /// 28 /// 6 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 D. Documents Relating to Other Vehicles and Internal Investigation 2 Documents are Crucial to Plaintiff’s Case, and GM is Obligated to Produce 3 Such Documents 4 Plaintiff’s Requests seek documents relating to same year, make, model vehicles and 5 GM’s internal investigation and analysis of the Transmission Defect and Audio System Defect 6 plaguing Plaintiff’s vehicle. In its Opposition, GM states its outright refusal to produce such 7 crucial documents. The reason for withholding such highly relevant documents is clear: 8 production of such documents will hurt GM’s case and help Plaintiff establish civil penalty 9 damages. 10 The requested materials responsive to Plaintiff’s Request Nos. 16, 19, 20, 21, 22, 25, 11 26, and 27 are reasonably calculated to lead to the discovery of documents regarding the nature 12 and duration of the defects, Defendant’s awareness of the Transmission Defect and Audio 13 System Defect, and Defendant’s inability to repair these defects. These materials are 14 admissible because they are probative of nonconformities with the Subject Vehicle, a 15 necessary element of Plaintiff’s case. Similarly, the documents are probative of Defendant’s 16 ability to repair Plaintiff’s vehicle within a reasonable number of opportunities. The 17 documents also include technical information about the defects that Plaintiff’s expert needs in 18 order to give reliable opinion testimony as to the nature of the defects and how those defects 19 impair the use, value, and safety of the vehicle. Cf. Donlen v. Ford Motor Co., 217 Cal. App. 20 4th 138, 154-55 (2013) (affirming admissibility of expert testimony regarding similar problems 21 in vehicles with same model transmission as the Plaintiff). Finally, the requested documents 22 go to Defendant’s knowledge of the defects and its ability to repair the defects. Consequently, 23 the materials are relevant to the issue of civil penalties (i.e. whether Defendant's refusal to 24 repurchase Plaintiff’s vehicle was based on a “good faith and reasonable belief that the facts 25 imposing the statutory obligations were not present”). Kwan, 23 Cal. App. 4th at 185. 26 In its Opposition, Defendant misstates the key holdings in Donlen v. Ford Motor 27 Company, 217 Cal.App.4th 138 (2013) or Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 28 967 (2009), the two seminal lemon law cases that are directly on point with the present case. 7 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 Both Donlen and Doppes support the scope of discoverable evidence requested here. Plaintiff 2 seeks documents relating to internal investigation and analysis concerning similar defects 3 experienced by Plaintiff and other customers. (See Donlen v. Ford Motor Co. (2013) 217 4 Cal.App.4th 138, 143-144, 153 [evidence of special service bulletins issued before Plaintiff 5 bought his truck and evidence of similar transmission problems in other trucks were relevant 6 and admissible]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978-979, 7 986 [documents of warranty complaints, service histories, and employee records concerning 8 the subject defect in all affected vehicles and the company’s responses and instructions re: cure 9 were discoverable and relevant to issue of Defendant’s good faith treatment of the problem].) 10 The discovery requests at issue in Doppes involved “all documents relating to (1) 11 customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model 12 vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor 13 used on that model; (3) all warranty repairs during the period of January 2002 to date of that 14 model; (4) all customer complaints2 of a wax oil smell caused by the rust inhibitor used on the 15 vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil 16 smell arising from the vehicle’s rust inhibitor.” Doppes, 174 Cal.App.4th at 973-974 (emphasis 17 added). 18 Moreover, Donlen noted that evidence of other similar failures in the same component 19 systems as in Plaintiff’s vehicle is admissible at the time of trial. Donlen, 217 Cal.App.4th at 20 154.3 21 Accordingly, based on Donlen and Doppes, Defendant must produce all internal 22 investigation documents, customer complaint documents, and documents related to same make, 23 model, year vehicles in this case. 24 /// 25 /// 26 2 Moreover, the jury was instructed that defendant had been ordered to produce “All other documents of 27 any description referring or relating to the odor problems or complaints of odors in Bentley automobiles for model years 1999 to 2006….” Doppes, 174 Cal.App.4th at 986 (emphasis added). 3 28 Such discussion arose in connection with the Court’s rejection of Ford’s contention that the trial erred in denying Ford’s motion in limine to exclude evidence of other vehicles. Donlen, supra, 217 Cal.App.4th at 154. 8 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 IV. CONCLUSION 2 Based on the foregoing, GM must be ordered to provide further responses and full and 3 complete responsive documents. 4 5 Dated: April 29, 2024, CONSUMER LAW EXPERTS, PC 6 7 _______________________________ Alessandro Manno 8 Attorney for Plaintiff, NANCY NAVARRETE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE 1 PROOF OF SERVICE NANCY NALLELY NAVARRETE LEON v. GENERAL MOTORS, LLC 2 Case No.: BCV-23-100406 3 STATE OF CALIFORNIA, COUNTY OF KERN: 4 I am employed in the County of Los Angeles, State of California. I am over the age of 5 eighteen years and not a party to the within action. My business address is 800 Parkview Dr. N, El Segundo, California, 90245. 6 On April 29, 2024, I served a copy of the foregoing document described as 7 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST 8 FOR PRODUCTION OF DOCUMENTS, SET ONE on the interested parties in this action addressed as follows: 9 Mary Arens-McBride, Esq. (marensmcbride@erskinelaw.com) 10 Alexandria O Pappas, Esq. (apappas@erskinelaw.com) (eservice-ca@erskinelaw.com; and mchung@erskinelaw.com) 11 THE ERSKINE LAW GROUP 12 1592 N. Batavia St., Suite 1A Orange, CA 92867 13 [X] BY ELECTRONIC TRANSMISSION: I caused said document to be transmitted 14 from the email address robert@nolemon.com to the persons and email addresses listed above, as last indicated by such persons on a document that was served on this party in the above- 15 entitled action. 16 I declare under penalty of perjury under the laws of the State of California that the 17 above is true and correct. 18 Executed on April 29, 2024, at Los Angeles, California. 19 20 21 Robert Aguilar 22 23 24 25 26 27 28 1 PROOF OF SERVICE