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JACOB CUTLER (SBN 264988)
mail: jcutler@slpattorney.com
ANH NGUYEN (SBN 281925)
mail: anguyen@slpattorney.com
TRATEGIC EGAL RACTICES
ROFESSIONAL ORPORATION
1840 Century Park East, Suite 430
Los Angeles, CA 90067
Telephone: (310) 929 4900
Facsimile: (310) 943 3838
Attorneys for Plaintiff ROBERT BRISBEE AND SANDRA BRISBEE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ROBERT BRISBEE and SANDRA Case No 18CV332613
BRISBEE,
Judge: Sunil. R. Kulkarni
Plaintiff Dept.:
Case Initiated: July 31, 2018
GENERAL MOTORS, LLC and DOES 1 PLAINTIFF PLY TO DEFENDANT’S
through 10, inclusive, OPPOSITION TO PLAINTIFF MOTION
TO COMPEL FURTHER RESPONSES TO
Defendants. PLAINTIFF REQUEST FOR
PRODUCTION OF DOCUMENTS SET
ONE
Concurrently Filed with Supplemental
Declaration of Anh Nguyen in Support of
Plaintiff s Motion to Compel
Date: April , 2019
Location: Dept 8
LAINTIFF EPLY TO EFENDANT PPOSITION TO LAINTIFF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
1 I. INTRODUCTION
2 Defendant’s (hereinafter “GM”) Opposition to Plaintiffs ROBERT BRISBEE AND
3 SANDRA BRISBEE’s (hereinafter “Plaintiffs”) Motion to Compel illustrates the latest
4 example of the “obstruct and delay” strategy that GM consistently uses in lawsuits brought by
5 consumers who seek relief in the California courts after GM has sold them defective vehicles;
6 failed to repair such vehicles within a reasonable number of opportunities; and then willfully
7 refused to repurchase those defective vehicles as required by California law.
8 GM’s patently meritless boilerplate objections, and failure to make any meaningful
9 effort to support those objections during either the meet-and-confer process or in its
10 Opposition, are part of the “obstruct and delay” strategy that GM routinely uses:
11 - After necessitating a lawsuit by failing to repurchase Plaintiffs’ defective 2011
Cadillac SRX, GM stonewalled by making boilerplate objections to discovery
12 requests seeking critical documents evidencing GM’s awareness of and inability to
repair the defects plaguing Plaintiffs’ vehicle (Declaration of Anh Nguyen In
13 Support Of Plaintiffs’ Motion to Compel Further Responses to Requests for
14 Production of Documents, Set One [“Nguyen Decl.”] ¶¶ 23-28, Exs. 8 and 9);
- Thereafter, during the meet and confer process, GM again stonewalled Plaintiffs’
15 efforts by affirming its boilerplate objections, failing to address any of Plaintiffs’
positions in substance, and refusing to supplement its responses to any of the
16 requests in dispute, even though the evidence sought is relevant to establish civil
penalties and should be produced under controlling law (Id. at ¶¶ 29-39, Exs. 10-
17
19);
18 - GM’s assertion that Plaintiffs have not met their good faith meet and confer duty is
unfounded because in reply to Plaintiffs detailed meet and confer letters sent on
19 September 7, 2018, January 2, 2019, and January 14, 2019, GM unwaveringly stood
by its objections and the same positions identified in its evasive and non-code
20 compliant responses (Id.);
21 - After Plaintiffs moved to compel further responses, GM's Opposition makes
unsupported claims without citation to any admissible evidentiary materials that the
22 information sought is “trade secret” or “confidential”; and
- As evidenced by GM’s objections, its responses to Plaintiffs’ multiple meet and
23 confer letters, and its Opposition, GM has confirmed that it will not supplement its
responses to any of the requests at issue in Plaintiffs’ Motion. (Id. at ¶¶ 27-39, Exs.
24
9-19.)
25
The reason for GM’s failure to produce such relevant documents from its internal
26
records is obvious: they will demonstrate GM’s awareness of the Defects, its inability to fix
27
them regardless of how many repair attempts are made, and its willful failure to repurchase
28
1
P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 Plaintiffs’ vehicle in accordance with its affirmative obligation under the Song-Beverly
2 Consumer Warranty Act. See Cal. Evid. Code §413 (permitting an adverse inference when a
3 party intentionally conceals evidence).
4 GM attempts to divert this Court’s attention from its “obstruct and delay” tactics by
5 making conclusory statements about the alleged burden of compliance with Plaintiffs’
6 Requests. Yet, GM offers no authority or admissible evidence to support these claims.
7 GM may raise whatever affirmative defenses to liability it deems appropriate. But GM
8 cannot assert defenses while denying Plaintiffs discovery of the evidence necessary to rebut
9 them. For example: GM may claim that Plaintiffs’ vehicle was repaired. But at the same time,
10 GM refuses to produce documents concerning GM’s internal investigations and analyses of the
11 Engine and Steering Defects plaguing Plaintiffs’ Vehicle and similar vehicles (i.e., vehicles of
12 the same make, model, and year as Plaintiffs’ Vehicle) about which other consumers
13 complained. GM may also claim that ts repair procedures (e.g., those detailed in GM’s
14 Technical Service Bulletins [“TSBs”], Recalls and Campaigns) are effective. But having so
15 claimed, GM cannot shield from discovery information that would rebut those claims (e.g.,
16 testimony that GM does not yet understand the nature of the Defects, multiple customer
17 complaints of the same problems continuing after the “fixes” required by TSBs, Recalls, and
18 Campaigns were performed).
19 Similarly, while GM may claim that it “believed in good faith” that it was not required
20 to repurchase or replace Plaintiffs’ Vehicle, GM cannot at the same time withhold evidence
21 establishing that: (1) the Engine and Steering Defects in 2011 Cadillac SRX vehicles,
22 including Plaintiffs’ Vehicle, are simply not “fixable”; (2) GM knew, or reasonably should
23 have known, that the Defects were not “fixable”; and (3) GM’s consumer repurchase policies,
24 practices and procedures are designed to conceal GM’s knowledge that the Defects are not
25 “fixable”; and evidence that GM’s bad faith, sufficient to support the civil penalty that the
26 Legislature included in the Lemon Law to prevent such tactics by automobile manufacturers.
27 Plaintiffs’ moving papers established good cause for production of the requested
28 documents and sought an order compelling further responses and overruling GM’s boilerplate
2
P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 objections. GM’s Opposition neither undermined the relevance of the requested documents nor
2 provided a legal basis to sustain its objections. Plaintiffs’ Motion to Compel should thus be
3 granted.
4 II. GM FAILED TO MEANINGFULLY ENGAGE IN THE MEET-AND-CONFER
PROCESS BY REFUSING TO ADDRESS ANY OF PLAINTIFFS’ POSITIONS
5 IN SUBSTANCE.
6 Plaintiffs, in good faith, engaged in meet and confer efforts explaining why (1) the
7 parties should establish an electronic search protocol for discovery and production of
8 electronically stored information (“ESI”); (2) GM’s boilerplate objections are meritless; and (3)
9 the information sought should be produced under controlling law. (Nguyen Decl. ¶¶29-39, Exs.
10 10-19.) Additionally, as a compromise to alleviate GM’s confidentiality concerns, Plaintiffs
11 made multiple offers to enter into the Los Angeles Superior Court Model Protective Order –
12 Confidential Designation Only to satisfy GM’s concerns regarding production of information
13 that it claims (though has failed to establish) is confidential and/or trade secret. (Id.) GM
14 ignored those proposals and simply refused to address any of Plaintiffs’ positions in substance.
15 (Id.)
16 Moreover, GM’s objections, its response to the aforementioned meet-and-confer efforts,
17 and its Opposition, confirm a fundamental disagreement with Plaintiffs’ position on the disputed
18 requests. (See Nguyen Decl. ¶¶ 27-19, Exs. 9-19.) In GM’s view, “This breach of warranty case
19 is about Plaintiffs’ SRX and GM’s repairs of that SRX under warranty… [The requested
20 documents] are not relevant to Plaintiffs’ claim…Plaintiffs have zero need for the documents
21 sought in the 19 requests at issue.” (Opp. 5:8-13.)
22 Simply stated, GM vehemently stands by its refusal to supplement its responses to any of
23 the requests at issue in Plaintiffs’ Motion.
24 III. AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED
BECAUSE PLAINTIFFS ESTABLISHED GOOD CAUSE FOR PRODUCTION
25 OF THE REQUESTED DOCUMENTS AND GM FAILED TO JUSTIFY ITS
OBJECTIONS
26
27 Plaintiffs have provided sufficient facts to demonstrate good cause for the requested
28 documents. Plaintiffs purchased a defective 2011 Cadillac SRX which suffered from the
3
P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 Engine and Steering Defects. (Nguyen Decl. ¶¶ 3-15, Ex. 1.) Plaintiffs visited GM’s
2 authorized repair facility on no fewer than nine (9) occasions for concerns related to the
3 Engine and Steering Defects. (Id.) GM was aware of the Engine and Steering Defects in
4 vehicles of the same make, model and year as Plaintiffs’ Vehicle, as evidenced by the
5 numerous Technical Service Bulletins, and Recalls and Campaigns that GM has issued
6 concerning these defects. (Id. at ¶¶ 16-22, Exs. 2-7.) Furthermore, GM continues withholding
7 discovery that will prove both GM’s liability for failing to repurchase the Vehicle and subject
8 Defendant to civil penalties. (See id. at ¶¶ 26-39, Exs. 9-19.)
9 A. The Requests at Issue are Discoverable, Highly Relevant, and
Necessary to Prepare for Trial
10
11 Plaintiffs’ Requests seek documents relating to GM’s internal investigation and
12 analysis of the Engine and Steering Defects plaguing Plaintiffs’ Vehicle (See Requests for
13 Production Nos. 20, 21, 26-37). Evidence regarding other vehicles with similar defects as
14 Plaintiffs’ may be admissible at trial in a lemon law action. Donlen v. Ford Motor Co. (2013)
15 217 Cal.App.4th 138, 154; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th
16 967, 971. The requested materials are reasonably calculated to lead to the discovery of
17 admissible evidence regarding the nature and duration of the Defects, GM's awareness of the
18 Defects, and GM's inability to repair the Defects regardless of the number of attempts. These
19 materials are admissible because they are probative of nonconformities with the Subject
20 Vehicle, a necessary element of Plaintiffs’ case. Similarly, the documents are probative of
21 GM's ability to repair the Vehicle within a reasonable number of opportunities. This
22 documents also include technical information about the Defects that Plaintiffs’ expert needs in
23 order to give reliable opinion testimony as to the nature of the Defects and how these Defects
24 impair the use, value, and safety of the Vehicle. See Donlen, supra, 174 Cal.App.4th at pp.
25 154-155 (affirming admissibility of expert testimony regarding similar problems in vehicles
26 with the same model transmission as the plaintiff).
27 Finally, the requested documents are relevant to show GM’s knowledge of the defects
28 and its ability to repair the defects. Consequently, the materials are relevant to the issue of
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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 civil penalties (i.e., whether GM's refusal to repurchase Plaintiffs’ Vehicle was based on a
2 “good faith and reasonable belief that the facts triggering its statutory obligations were not
3 present”). Kwan v. Mercedes-Benz of N. Am., Inc. (1994) 23 Cal.App.4th 174, 185.
4 Contrary to GM’s attempts to distinguish Donlen v. Ford Motor Company (2013) 217
5 Cal.App.4th 138 and Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 96, these cases
6 support the scope of discoverable evidence requested here. Plaintiffs seek documents relating
7 to internal investigation and analysis concerning similar defects experienced by Plaintiffs and
8 other customers of vehicles of the same year, make and model as the Subject Vehicle. See
9 Donlen, supra, 217 Cal.App.4th at pp. 143-144, 153 (evidence of special service bulletins
10 issued before Plaintiff bought his truck and evidence of similar transmission problems in other
11 trucks were relevant and admissible); Doppes, supra, 174 Cal.App.4th at pp. 973, 978-979, 986
12 (documents of warranty complaints, service histories, and employee records concerning the
13 subject defect in all affected vehicles and the company’s responses and instructions re: cure
14 were discoverable and relevant to issue of defendant’s good faith treatment of the problem).
15 GM misleadingly states that Doppes1 is inapplicable to this current matter. (Opp. at 6:9-
16 23.) Not so. The discovery requests at issue in Doppes involved “all documents relating to (1)
17 customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model
18 vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor
19 used on that model; (3) all warranty repairs during the period of January 2002 to date of that
20 model; (4) all customer complaints2 of a wax oil smell caused by the rust inhibitor used on the
21 vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil
22 smell arising from the vehicle’s rust inhibitor.” Doppes, supra, 174 Cal.App.4th at 973-974
23 (emphasis added).
24 GM also attempts to misconstrue Doppes as limited to the issue of terminating sanctions.
25 (Opp. at 6:9-23.) It is not plausible that the Court of Appeal in that case would have held that the
26 1
GM tries to avoid the impact of Doppes by citing to the unpublished views of a trial judge in another
27 case.
2
Moreover, the jury was instructed that defendant had been ordered to produce “All other documents of
28 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).
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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 trial court abused its discretion in not granting terminating sanctions for failure to comply with a
2 discovery order requiring disclosure of overbroad or irrelevant documents if the underlying
3 requests demanded production of overbroad or irrelevant documents. It is even less plausible that
4 the appellate decision in Doppes would have been selected for publication as a precedential
5 opinion had the underlying discovery order been erroneous. Moreover, Donlen noted that
6 evidence of other similar failures in the same component systems as those installed in the subject
7 vehicle is admissible at the time of trial. Donlen, supra, 217 Cal.App.4th at p. 154.3
8 B. GM’s Claim That Plaintiffs’ Requests Are Overbroad Is Misleading And
Unsupported By The Facts
9
10 GM contends that Plaintiffs’ discovery requests are overbroad in terms of time, scope,
11 and defined defects. To the contrary, Plaintiffs have narrowly tailored the requests to seek
12 documents concerning the Engine and Steering Defects in vehicles of the same year, make, and
13 model as Plaintiffs’ Vehicle. Furthermore, the Defect definitions were carefully drafted based
14 on Plaintiffs’ documented complaints and repairs, as well as the language used by GM’s own
15 dealerships and its own repair procedures. (Nguyen Decl. ¶¶ 4-14, Ex.)
16 While Defendant argues that it would be required to assert its own theory as to what
17 constitutes a “non-conformities” (Opp. at 5:21-28), all it must do is simply make a good faith
18 effort to respond to the discovery based upon a reasonable interpretation of the request.
19 Plaintiffs are only requesting documents that are already in Defendant’s possession.
20 C. There Is No Burden Involved in Producing the Requested Documents
21 GM's Opposition sets forth unsupported assertions about the burden of compliance. It is
22 worth noting that GM failed to provide a declaration setting forth any facts to support any
23 claim of burden in this matter. GM’s Opposition is devoid of any factual showing whatsoever
24 and therefore any objection based on undue burden should be overruled. Indeed, GM's
25 discussion of the alleged burden does not contain a single citation to any evidentiary material.
26 Courts have clearly held that any claim of undue burden by the responding party must be
27 substantiated by evidence. See Coriell v. Super. Ct. (1974) 39 Cal. App. 3d 487, 492-93
28
3
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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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 (holding that answering an interrogatory would require “considerable effort” and that “‘many
2 hundreds of man hours’ and ‘approximately nine months’ [would] be required to supply
3 answers” was conclusory and not factual in nature—accordingly, the trial court erred in
4 relieving the responding party from providing further responses).
5 GM simply had its counsel assert that the Requests are “unduly burdensome,” but their
6 counsel lacks personal knowledge regarding GM’s alleged “burden.” GM presents no
7 testimony on burden from anyone at GM with personal knowledge of the issue. GM does not
8 even provide a numeric figure as to how long it would take to respond to Plaintiffs’ Requests
9 or produce the corresponding documents. Here, aside from arguments in its brief, which are
10 not evidence, GM offers no factual support regarding the alleged costs of document
11 production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015)
12 ("[A]rguments in briefs are not evidence.").
13 As the responding party, GM had the initial burden of proving that the requested
14 documents, including ESI, were not reasonably accessible because of undue burden or
15 expense. Civ. Proc. § 2031.310(d). To meet that burden, GM has provided nothing more than
16 conclusionary statements. Beyond that, GM's Opposition is completely silent as to the specific
17 nature of the burden such as time, labor, and monetary costs or prejudice incurred. Code Civ.
18 Proc. §2019.030 (quoting the general discovery provisions). But see Code Civ. Proc. §
19 2031.310(g)(4) (instructing trial court, when ruling on a motion to compel ESI, to limit
20 production where "the likely burden or expense of the proposed discovery outweighs the likely
21 benefit, taking into account the amount in controversy, the resources of the parties, the
22 importance of the issues in the litigation, and the importance of the requested discovery in
23 resolving the issues") (emphasis added).
24 Indeed, GM omitted relevant factors such as the "resources of the parties" and "the
25 importance of the requested discovery in resolving the issues." Significantly, the legislatively
26 imposed fee shifting provisions are necessary to allow rational, budget-constrained consumers
27 to seek a judicial remedy when their rights are violated by powerful, well-financed defendants
28 such as GM. See Covenant Mutual Ins. Co. v. Young, 179 Cal. App. 3d 318, 324-25
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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 (explaining that unilateral fee-shifting is a legislative tool to "encourage[e] more effective
2 enforcement of [] important public policy" by allowing "injured parties to seek redress…in
3 situations where they otherwise would not find it economical to sue.").4 Similarly, the civil
4 penalty provisions are necessary to deter powerful companies from violating the rights of
5 consumers in the first place. Absent such a provision, “a manufacturer who knew the consumer
6 was entitled to a refund or replacement might nevertheless be tempted to refuse compliance in
7 the hope the consumer would not persist, secure in the knowledge its liability was limited to a
8 refund or replacement.” Kwan, supra, 23 Cal. App. 4th at 184. The Legislature need not have
9 imposed unilateral fee shifting and treble damage provisions in the Song-Beverly Act. Yet, it
10 chose to do so.
11 Regardless, there is no burden of production. The documents Plaintiffs seek are
12 maintained by GM in several, easily searchable databases, including: 1) Warranty Database; 2)
13 GM Quality with Information and Knowledge (QWIK) Database, 3) GM Problem Resolution
14 Tracking System Database (PRTS). (Supplemental Declaration of Anh Nguyen in Support of
15 Plaintiffs’ Motion to Compel Further Responses to Plaintiffs’ Request for Production of
16 Documents, Set One, ¶3, Ex. A.) GM also maintains reports that may be used to search for this
17 data, including: 1) 573 Reports, 2) Big 4 Reports, 3) Executive Field Action Decision
18 Committee Reports (EFADC), 4) Red X problem solving data. (Id.) Thus, complying with
19 Plaintiffs’ requests would take little effort or expense. (Id.) For instance, GM can search for
20 warranty claims sought by RFP Nos. 30 and 31 by code in its Warranty Database. (Id.)
21 D. GM’s Claims of Trade Secret and Confidentiality Are Unsubstantiated
22 Lastly, GM claims that the documents Plaintiffs are seeking are “confidential” and/or
23 “trade secrets.” As an initial matter, objections based on confidentiality are not proper grounds
24 for withholding responsive documents. See Columbia Broadcasting System, Inc. v. Superior
25 Court (1968) 263 Cal.App.2d 12, 23 (“We know of no case holding that this is a proper
26 4
"[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 resultof 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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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 objection to an otherwise proper interrogatory.”) Rather, the responding party should seek a
2 protective order to excuse the duty to answer; an objection is not the equivalent of such a
3 motion. (Id.) It is also worth noting that GM has failed to provide a privilege log with its
4 Responses and has failed to do so to date.
5 Notwithstanding, in the spirit of compromise, Plaintiffs have offered repeatedly to
6 stipulate to the LASC Model Confidential Protective Order to facilitate production of
7 documents GM claims are confidential or proprietary. However, should GM insist on the
8 Highly Confidential Protective Order (“HCPO”), Plaintiffs object as the HCPO contains
9 heightened and onerous provisions which GM has not sufficiently demonstrated are necessary.
10 GM fails to cite to any admissible evidentiary support showing the any of the documents
11 contain protectable trade secrets, proprietary and/or confidential information. Instead, GM
12 asserts bare conclusions that rest solely upon the uncontested observation that GM operates in
13 a competitive environment. (Opp. at 9:4-8.) But cf. Nativi v. Deutsche Bank Nat’l Trust Co.,
14 223 Cal. App. 4th 261, 318 (2014) (noting that conclusory declarations lacking in factual
15 specificity are insufficient to establish good cause justifying a protective order). The
16 unremarkable fact that GM operates in a market economy, without more, is not the least bit
17 probative of whether documents relating to the Engine and Steering Defects are confidential or
18 contain trade secrets.
19 E. The Refund and Warranty Policy & Procedure Requests Are Relevant to
Defendant's Civil Penalty Liability
20
21 Requests Nos. 7, 51-53, and 66 seek materials describing the rules, policies, and
22 procedures relating to GM's issuance of refunds and replacement vehicles pursuant to the
23 Song-Beverly Act. A buyer may be entitled to a civil penalty of up to two times the actual
24 damages upon a showing that the manufacturer willfully failed to abide by any of its
25 obligations under the Act. (Cal. Civ. Code § 1794(c).) Evidence that GM has "adopted internal
26 policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress
27 under the Act" may support a finding of such willful failure to comply. Oregel v. Am. lsuzu
28 Motors, lnc. (2001) 90 Cal. App. 4th 1094, 1105.
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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 These documents are within the scope of discovery because they are probative of GM’s
2 good faith compliance with the Act. Under the Act, a willful failure to comply with the
3 statutory duty to repurchase or replace a defective vehicle exposes the manufacturer to civil
4 penalty liability. Civ. § 1794(c); Lukather v. General Motors, LLC, 181 Cal.App.4th 1041, 1050
5 (2010). A manufacturer can establish a defense to a finding of willfulness by showing it had a
6 “good faith and reasonable belief that the facts imposing the statutory obligations were not
7 present.” Kwan, supra, 23 Cal.App.4th at p. 185.
8 GM's policies regarding its statutory duties are probative of its good faith compliance
9 with those duties and thus relevant to the Act's civil penalty provision. For instance, the
10 nonexistence of policies governing the issuance of refunds suggests a lack of good faith
11 compliance with the Act. See Kwan, 23 Cal. App. 4th at 186 (explaining that absence of
12 written policy on implementation of Act's provisions is admissible to prove lack of good faith).
13 Documents outlining "internal policies that erect[] hidden obstacles .. . to obtain[ing] redress
14 under the Act" would also go to a lack of good faith. See Oregel, supra, 90 Cal. App. at 1105.
15 Similarly, a policy or practice of evaluating repurchase requests based on insufficient
16 information is relevant to the reasonableness of a manufacturer’s decision. Kwan, supra, 23
17 Cal. App. 4th at 186 (“A decision made without the use of reasonably available information
18 germane to that decision is not a reasonable, good faith decision.”). Plaintiffs are therefore
19 entitled to know whether documents relating to refund policies and procedures exist, and if so,
20 the contents of those documents.
21 Documents relating to Defendant’s warranty and vehicle repurchase policies,
22 procedures, and practices from 2011 and onward are relevant in this case because Plaintiffs’
23 Subject Vehicle was produced in 2011 and it would reasonably be expected to experience
24 problems similar to those experienced by other owners of 2011 model vehicles. Defendant’s
25 policies relating to responding to those complaints are therefore relevant to determining how
26 they may have responded to Plaintiffs’ complaints.
27 ///
28 ///
10
P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
1 IV. CONCLUSION
2 It is time to end GM’s “obstruct and delay” tactics in this case. GM should be ordered
3 to provide further Code-compliant responses and all responsive documents.
4
Dated: April 15, 2019 STRATEGIC LEGAL PRACTICES, APC
5
6 By:
7
Anh Nguyen
8 Attorney for Plaintiffs
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P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR P RODUCTION OF DOCUMENTS , SET ONE
PROOF OF SERVICE
ATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in County of Los Angeles, State of California. I am over the age o
18 and not a party to the within action. My business ddress is Strategic Legal Practice
Century Park East, Suite 430, Los Angeles, California 90067
On April 15, 2019 I served the document(s) described as:
LAINTIFF PLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF REQUEST
OR PRODUCTION OF DOCUMENTS SET ONE
n the interested parties in this action by nding [ ] the original [or] [ ] a true copy
thereof ] to interested parties as follows [or] [ ] as stated on the attached service
list:
THE ERSKINE LAW GROUP
Mary Lynn Arens, Esq.
Deepika S. T ompson, sq.
3995 E. La Palma Ave.
naheim, CA 92807
BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s)
for mailing in the ordinary course of business at Los Angeles, California. I am “readily
familiar” with this firm’s practice of collection and processing corres dence for
mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal
Service that same day in the ordinary course of business with postage thereon full
prepaid at Los Angeles, California.
BY E MAIL: I hereby certify th this document was served from Los Angeles,
lifornia, by mail delivery on the parties listed herein at their most recent known e
mail address or e mail of record in this action.
[ ] BY FAX: I hereby certify that this document was served from Lo ngeles, California,
facsimile delivery on the parties listed herein at their most recent fax number of
record in this action.
BY PERSONAL SERVICE: I delivered the document, enclosed in a sealed envelope,
hand to the offices of the addresse ) named herein.
BY OVERNIGHT DELIVE I am “readily familiar” with this firm’s practice of
collection and processing correspondence for overnight delivery. Under that practice,
overnight packages are enclosed in a sealed envelope with a pac g slip attached
thereto fully prepaid. The packages are picked up by the carrier at our offices or
delivered by our office to a designated collection site.
I declare under penalty of perjury under the laws of the State of California that the
foregoi is true and correct.
Executed this April 15, 2019 at Los Angeles, California.
Katrina Gorgy
Type or Print Name Signature
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JACOB CUTLER (SBN 264988) mail: jcutler@slpattorney.com ANH NGUYEN (SBN 281925) mail: anguyen@slpattorney.com TRATEGIC EGAL RACTICES ROFESSIONAL ORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929 4900 Facsimile: (310) 943 3838 Attorneys for Plaintiff ROBERT BRISBEE AND SANDRA BRISBEE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ROBERT BRISBEE and SANDRA Case No 18CV332613 BRISBEE, Judge: Sunil. R. Kulkarni Plaintiff Dept.: Case Initiated: July 31, 2018 GENERAL MOTORS, LLC and DOES 1 PLAINTIFF PLY TO DEFENDANT’S through 10, inclusive, OPPOSITION TO PLAINTIFF MOTION TO COMPEL FURTHER RESPONSES TO Defendants. PLAINTIFF REQUEST FOR PRODUCTION OF DOCUMENTS SET ONE Concurrently Filed with Supplemental Declaration of Anh Nguyen in Support of Plaintiff s Motion to Compel Date: April , 2019 Location: Dept 8 LAINTIFF EPLY TO EFENDANT PPOSITION TO LAINTIFF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS 1 I. INTRODUCTION 2 Defendant’s (hereinafter “GM”) Opposition to Plaintiffs ROBERT BRISBEE AND 3 SANDRA BRISBEE’s (hereinafter “Plaintiffs”) Motion to Compel illustrates the latest 4 example of the “obstruct and delay” strategy that GM consistently uses in lawsuits brought by 5 consumers who seek relief in the California courts after GM has sold them defective vehicles; 6 failed to repair such vehicles within a reasonable number of opportunities; and then willfully 7 refused to repurchase those defective vehicles as required by California law. 8 GM’s patently meritless boilerplate objections, and failure to make any meaningful 9 effort to support those objections during either the meet-and-confer process or in its 10 Opposition, are part of the “obstruct and delay” strategy that GM routinely uses: 11 - After necessitating a lawsuit by failing to repurchase Plaintiffs’ defective 2011 Cadillac SRX, GM stonewalled by making boilerplate objections to discovery 12 requests seeking critical documents evidencing GM’s awareness of and inability to repair the defects plaguing Plaintiffs’ vehicle (Declaration of Anh Nguyen In 13 Support Of Plaintiffs’ Motion to Compel Further Responses to Requests for 14 Production of Documents, Set One [“Nguyen Decl.”] ¶¶ 23-28, Exs. 8 and 9); - Thereafter, during the meet and confer process, GM again stonewalled Plaintiffs’ 15 efforts by affirming its boilerplate objections, failing to address any of Plaintiffs’ positions in substance, and refusing to supplement its responses to any of the 16 requests in dispute, even though the evidence sought is relevant to establish civil penalties and should be produced under controlling law (Id. at ¶¶ 29-39, Exs. 10- 17 19); 18 - GM’s assertion that Plaintiffs have not met their good faith meet and confer duty is unfounded because in reply to Plaintiffs detailed meet and confer letters sent on 19 September 7, 2018, January 2, 2019, and January 14, 2019, GM unwaveringly stood by its objections and the same positions identified in its evasive and non-code 20 compliant responses (Id.); 21 - After Plaintiffs moved to compel further responses, GM's Opposition makes unsupported claims without citation to any admissible evidentiary materials that the 22 information sought is “trade secret” or “confidential”; and - As evidenced by GM’s objections, its responses to Plaintiffs’ multiple meet and 23 confer letters, and its Opposition, GM has confirmed that it will not supplement its responses to any of the requests at issue in Plaintiffs’ Motion. (Id. at ¶¶ 27-39, Exs. 24 9-19.) 25 The reason for GM’s failure to produce such relevant documents from its internal 26 records is obvious: they will demonstrate GM’s awareness of the Defects, its inability to fix 27 them regardless of how many repair attempts are made, and its willful failure to repurchase 28 1 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 Plaintiffs’ vehicle in accordance with its affirmative obligation under the Song-Beverly 2 Consumer Warranty Act. See Cal. Evid. Code §413 (permitting an adverse inference when a 3 party intentionally conceals evidence). 4 GM attempts to divert this Court’s attention from its “obstruct and delay” tactics by 5 making conclusory statements about the alleged burden of compliance with Plaintiffs’ 6 Requests. Yet, GM offers no authority or admissible evidence to support these claims. 7 GM may raise whatever affirmative defenses to liability it deems appropriate. But GM 8 cannot assert defenses while denying Plaintiffs discovery of the evidence necessary to rebut 9 them. For example: GM may claim that Plaintiffs’ vehicle was repaired. But at the same time, 10 GM refuses to produce documents concerning GM’s internal investigations and analyses of the 11 Engine and Steering Defects plaguing Plaintiffs’ Vehicle and similar vehicles (i.e., vehicles of 12 the same make, model, and year as Plaintiffs’ Vehicle) about which other consumers 13 complained. GM may also claim that ts repair procedures (e.g., those detailed in GM’s 14 Technical Service Bulletins [“TSBs”], Recalls and Campaigns) are effective. But having so 15 claimed, GM cannot shield from discovery information that would rebut those claims (e.g., 16 testimony that GM does not yet understand the nature of the Defects, multiple customer 17 complaints of the same problems continuing after the “fixes” required by TSBs, Recalls, and 18 Campaigns were performed). 19 Similarly, while GM may claim that it “believed in good faith” that it was not required 20 to repurchase or replace Plaintiffs’ Vehicle, GM cannot at the same time withhold evidence 21 establishing that: (1) the Engine and Steering Defects in 2011 Cadillac SRX vehicles, 22 including Plaintiffs’ Vehicle, are simply not “fixable”; (2) GM knew, or reasonably should 23 have known, that the Defects were not “fixable”; and (3) GM’s consumer repurchase policies, 24 practices and procedures are designed to conceal GM’s knowledge that the Defects are not 25 “fixable”; and evidence that GM’s bad faith, sufficient to support the civil penalty that the 26 Legislature included in the Lemon Law to prevent such tactics by automobile manufacturers. 27 Plaintiffs’ moving papers established good cause for production of the requested 28 documents and sought an order compelling further responses and overruling GM’s boilerplate 2 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 objections. GM’s Opposition neither undermined the relevance of the requested documents nor 2 provided a legal basis to sustain its objections. Plaintiffs’ Motion to Compel should thus be 3 granted. 4 II. GM FAILED TO MEANINGFULLY ENGAGE IN THE MEET-AND-CONFER PROCESS BY REFUSING TO ADDRESS ANY OF PLAINTIFFS’ POSITIONS 5 IN SUBSTANCE. 6 Plaintiffs, in good faith, engaged in meet and confer efforts explaining why (1) the 7 parties should establish an electronic search protocol for discovery and production of 8 electronically stored information (“ESI”); (2) GM’s boilerplate objections are meritless; and (3) 9 the information sought should be produced under controlling law. (Nguyen Decl. ¶¶29-39, Exs. 10 10-19.) Additionally, as a compromise to alleviate GM’s confidentiality concerns, Plaintiffs 11 made multiple offers to enter into the Los Angeles Superior Court Model Protective Order – 12 Confidential Designation Only to satisfy GM’s concerns regarding production of information 13 that it claims (though has failed to establish) is confidential and/or trade secret. (Id.) GM 14 ignored those proposals and simply refused to address any of Plaintiffs’ positions in substance. 15 (Id.) 16 Moreover, GM’s objections, its response to the aforementioned meet-and-confer efforts, 17 and its Opposition, confirm a fundamental disagreement with Plaintiffs’ position on the disputed 18 requests. (See Nguyen Decl. ¶¶ 27-19, Exs. 9-19.) In GM’s view, “This breach of warranty case 19 is about Plaintiffs’ SRX and GM’s repairs of that SRX under warranty… [The requested 20 documents] are not relevant to Plaintiffs’ claim…Plaintiffs have zero need for the documents 21 sought in the 19 requests at issue.” (Opp. 5:8-13.) 22 Simply stated, GM vehemently stands by its refusal to supplement its responses to any of 23 the requests at issue in Plaintiffs’ Motion. 24 III. AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED BECAUSE PLAINTIFFS ESTABLISHED GOOD CAUSE FOR PRODUCTION 25 OF THE REQUESTED DOCUMENTS AND GM FAILED TO JUSTIFY ITS OBJECTIONS 26 27 Plaintiffs have provided sufficient facts to demonstrate good cause for the requested 28 documents. Plaintiffs purchased a defective 2011 Cadillac SRX which suffered from the 3 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 Engine and Steering Defects. (Nguyen Decl. ¶¶ 3-15, Ex. 1.) Plaintiffs visited GM’s 2 authorized repair facility on no fewer than nine (9) occasions for concerns related to the 3 Engine and Steering Defects. (Id.) GM was aware of the Engine and Steering Defects in 4 vehicles of the same make, model and year as Plaintiffs’ Vehicle, as evidenced by the 5 numerous Technical Service Bulletins, and Recalls and Campaigns that GM has issued 6 concerning these defects. (Id. at ¶¶ 16-22, Exs. 2-7.) Furthermore, GM continues withholding 7 discovery that will prove both GM’s liability for failing to repurchase the Vehicle and subject 8 Defendant to civil penalties. (See id. at ¶¶ 26-39, Exs. 9-19.) 9 A. The Requests at Issue are Discoverable, Highly Relevant, and Necessary to Prepare for Trial 10 11 Plaintiffs’ Requests seek documents relating to GM’s internal investigation and 12 analysis of the Engine and Steering Defects plaguing Plaintiffs’ Vehicle (See Requests for 13 Production Nos. 20, 21, 26-37). Evidence regarding other vehicles with similar defects as 14 Plaintiffs’ may be admissible at trial in a lemon law action. Donlen v. Ford Motor Co. (2013) 15 217 Cal.App.4th 138, 154; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 16 967, 971. The requested materials are reasonably calculated to lead to the discovery of 17 admissible evidence regarding the nature and duration of the Defects, GM's awareness of the 18 Defects, and GM's inability to repair the Defects regardless of the number of attempts. These 19 materials are admissible because they are probative of nonconformities with the Subject 20 Vehicle, a necessary element of Plaintiffs’ case. Similarly, the documents are probative of 21 GM's ability to repair the Vehicle within a reasonable number of opportunities. This 22 documents also include technical information about the Defects that Plaintiffs’ expert needs in 23 order to give reliable opinion testimony as to the nature of the Defects and how these Defects 24 impair the use, value, and safety of the Vehicle. See Donlen, supra, 174 Cal.App.4th at pp. 25 154-155 (affirming admissibility of expert testimony regarding similar problems in vehicles 26 with the same model transmission as the plaintiff). 27 Finally, the requested documents are relevant to show GM’s knowledge of the defects 28 and its ability to repair the defects. Consequently, the materials are relevant to the issue of 4 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 civil penalties (i.e., whether GM's refusal to repurchase Plaintiffs’ Vehicle was based on a 2 “good faith and reasonable belief that the facts triggering its statutory obligations were not 3 present”). Kwan v. Mercedes-Benz of N. Am., Inc. (1994) 23 Cal.App.4th 174, 185. 4 Contrary to GM’s attempts to distinguish Donlen v. Ford Motor Company (2013) 217 5 Cal.App.4th 138 and Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 96, these cases 6 support the scope of discoverable evidence requested here. Plaintiffs seek documents relating 7 to internal investigation and analysis concerning similar defects experienced by Plaintiffs and 8 other customers of vehicles of the same year, make and model as the Subject Vehicle. See 9 Donlen, supra, 217 Cal.App.4th at pp. 143-144, 153 (evidence of special service bulletins 10 issued before Plaintiff bought his truck and evidence of similar transmission problems in other 11 trucks were relevant and admissible); Doppes, supra, 174 Cal.App.4th at pp. 973, 978-979, 986 12 (documents of warranty complaints, service histories, and employee records concerning the 13 subject defect in all affected vehicles and the company’s responses and instructions re: cure 14 were discoverable and relevant to issue of defendant’s good faith treatment of the problem). 15 GM misleadingly states that Doppes1 is inapplicable to this current matter. (Opp. at 6:9- 16 23.) Not so. The discovery requests at issue in Doppes involved “all documents relating to (1) 17 customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model 18 vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor 19 used on that model; (3) all warranty repairs during the period of January 2002 to date of that 20 model; (4) all customer complaints2 of a wax oil smell caused by the rust inhibitor used on the 21 vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil 22 smell arising from the vehicle’s rust inhibitor.” Doppes, supra, 174 Cal.App.4th at 973-974 23 (emphasis added). 24 GM also attempts to misconstrue Doppes as limited to the issue of terminating sanctions. 25 (Opp. at 6:9-23.) It is not plausible that the Court of Appeal in that case would have held that the 26 1 GM tries to avoid the impact of Doppes by citing to the unpublished views of a trial judge in another 27 case. 2 Moreover, the jury was instructed that defendant had been ordered to produce “All other documents of 28 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). 5 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 trial court abused its discretion in not granting terminating sanctions for failure to comply with a 2 discovery order requiring disclosure of overbroad or irrelevant documents if the underlying 3 requests demanded production of overbroad or irrelevant documents. It is even less plausible that 4 the appellate decision in Doppes would have been selected for publication as a precedential 5 opinion had the underlying discovery order been erroneous. Moreover, Donlen noted that 6 evidence of other similar failures in the same component systems as those installed in the subject 7 vehicle is admissible at the time of trial. Donlen, supra, 217 Cal.App.4th at p. 154.3 8 B. GM’s Claim That Plaintiffs’ Requests Are Overbroad Is Misleading And Unsupported By The Facts 9 10 GM contends that Plaintiffs’ discovery requests are overbroad in terms of time, scope, 11 and defined defects. To the contrary, Plaintiffs have narrowly tailored the requests to seek 12 documents concerning the Engine and Steering Defects in vehicles of the same year, make, and 13 model as Plaintiffs’ Vehicle. Furthermore, the Defect definitions were carefully drafted based 14 on Plaintiffs’ documented complaints and repairs, as well as the language used by GM’s own 15 dealerships and its own repair procedures. (Nguyen Decl. ¶¶ 4-14, Ex.) 16 While Defendant argues that it would be required to assert its own theory as to what 17 constitutes a “non-conformities” (Opp. at 5:21-28), all it must do is simply make a good faith 18 effort to respond to the discovery based upon a reasonable interpretation of the request. 19 Plaintiffs are only requesting documents that are already in Defendant’s possession. 20 C. There Is No Burden Involved in Producing the Requested Documents 21 GM's Opposition sets forth unsupported assertions about the burden of compliance. It is 22 worth noting that GM failed to provide a declaration setting forth any facts to support any 23 claim of burden in this matter. GM’s Opposition is devoid of any factual showing whatsoever 24 and therefore any objection based on undue burden should be overruled. Indeed, GM's 25 discussion of the alleged burden does not contain a single citation to any evidentiary material. 26 Courts have clearly held that any claim of undue burden by the responding party must be 27 substantiated by evidence. See Coriell v. Super. Ct. (1974) 39 Cal. App. 3d 487, 492-93 28 3 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. 6 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 (holding that answering an interrogatory would require “considerable effort” and that “‘many 2 hundreds of man hours’ and ‘approximately nine months’ [would] be required to supply 3 answers” was conclusory and not factual in nature—accordingly, the trial court erred in 4 relieving the responding party from providing further responses). 5 GM simply had its counsel assert that the Requests are “unduly burdensome,” but their 6 counsel lacks personal knowledge regarding GM’s alleged “burden.” GM presents no 7 testimony on burden from anyone at GM with personal knowledge of the issue. GM does not 8 even provide a numeric figure as to how long it would take to respond to Plaintiffs’ Requests 9 or produce the corresponding documents. Here, aside from arguments in its brief, which are 10 not evidence, GM offers no factual support regarding the alleged costs of document 11 production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015) 12 ("[A]rguments in briefs are not evidence."). 13 As the responding party, GM had the initial burden of proving that the requested 14 documents, including ESI, were not reasonably accessible because of undue burden or 15 expense. Civ. Proc. § 2031.310(d). To meet that burden, GM has provided nothing more than 16 conclusionary statements. Beyond that, GM's Opposition is completely silent as to the specific 17 nature of the burden such as time, labor, and monetary costs or prejudice incurred. Code Civ. 18 Proc. §2019.030 (quoting the general discovery provisions). But see Code Civ. Proc. § 19 2031.310(g)(4) (instructing trial court, when ruling on a motion to compel ESI, to limit 20 production where "the likely burden or expense of the proposed discovery outweighs the likely 21 benefit, taking into account the amount in controversy, the resources of the parties, the 22 importance of the issues in the litigation, and the importance of the requested discovery in 23 resolving the issues") (emphasis added). 24 Indeed, GM omitted relevant factors such as the "resources of the parties" and "the 25 importance of the requested discovery in resolving the issues." Significantly, the legislatively 26 imposed fee shifting provisions are necessary to allow rational, budget-constrained consumers 27 to seek a judicial remedy when their rights are violated by powerful, well-financed defendants 28 such as GM. See Covenant Mutual Ins. Co. v. Young, 179 Cal. App. 3d 318, 324-25 7 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 (explaining that unilateral fee-shifting is a legislative tool to "encourage[e] more effective 2 enforcement of [] important public policy" by allowing "injured parties to seek redress…in 3 situations where they otherwise would not find it economical to sue.").4 Similarly, the civil 4 penalty provisions are necessary to deter powerful companies from violating the rights of 5 consumers in the first place. Absent such a provision, “a manufacturer who knew the consumer 6 was entitled to a refund or replacement might nevertheless be tempted to refuse compliance in 7 the hope the consumer would not persist, secure in the knowledge its liability was limited to a 8 refund or replacement.” Kwan, supra, 23 Cal. App. 4th at 184. The Legislature need not have 9 imposed unilateral fee shifting and treble damage provisions in the Song-Beverly Act. Yet, it 10 chose to do so. 11 Regardless, there is no burden of production. The documents Plaintiffs seek are 12 maintained by GM in several, easily searchable databases, including: 1) Warranty Database; 2) 13 GM Quality with Information and Knowledge (QWIK) Database, 3) GM Problem Resolution 14 Tracking System Database (PRTS). (Supplemental Declaration of Anh Nguyen in Support of 15 Plaintiffs’ Motion to Compel Further Responses to Plaintiffs’ Request for Production of 16 Documents, Set One, ¶3, Ex. A.) GM also maintains reports that may be used to search for this 17 data, including: 1) 573 Reports, 2) Big 4 Reports, 3) Executive Field Action Decision 18 Committee Reports (EFADC), 4) Red X problem solving data. (Id.) Thus, complying with 19 Plaintiffs’ requests would take little effort or expense. (Id.) For instance, GM can search for 20 warranty claims sought by RFP Nos. 30 and 31 by code in its Warranty Database. (Id.) 21 D. GM’s Claims of Trade Secret and Confidentiality Are Unsubstantiated 22 Lastly, GM claims that the documents Plaintiffs are seeking are “confidential” and/or 23 “trade secrets.” As an initial matter, objections based on confidentiality are not proper grounds 24 for withholding responsive documents. See Columbia Broadcasting System, Inc. v. Superior 25 Court (1968) 263 Cal.App.2d 12, 23 (“We know of no case holding that this is a proper 26 4 "[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 resultof 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. 8 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 objection to an otherwise proper interrogatory.”) Rather, the responding party should seek a 2 protective order to excuse the duty to answer; an objection is not the equivalent of such a 3 motion. (Id.) It is also worth noting that GM has failed to provide a privilege log with its 4 Responses and has failed to do so to date. 5 Notwithstanding, in the spirit of compromise, Plaintiffs have offered repeatedly to 6 stipulate to the LASC Model Confidential Protective Order to facilitate production of 7 documents GM claims are confidential or proprietary. However, should GM insist on the 8 Highly Confidential Protective Order (“HCPO”), Plaintiffs object as the HCPO contains 9 heightened and onerous provisions which GM has not sufficiently demonstrated are necessary. 10 GM fails to cite to any admissible evidentiary support showing the any of the documents 11 contain protectable trade secrets, proprietary and/or confidential information. Instead, GM 12 asserts bare conclusions that rest solely upon the uncontested observation that GM operates in 13 a competitive environment. (Opp. at 9:4-8.) But cf. Nativi v. Deutsche Bank Nat’l Trust Co., 14 223 Cal. App. 4th 261, 318 (2014) (noting that conclusory declarations lacking in factual 15 specificity are insufficient to establish good cause justifying a protective order). The 16 unremarkable fact that GM operates in a market economy, without more, is not the least bit 17 probative of whether documents relating to the Engine and Steering Defects are confidential or 18 contain trade secrets. 19 E. The Refund and Warranty Policy & Procedure Requests Are Relevant to Defendant's Civil Penalty Liability 20 21 Requests Nos. 7, 51-53, and 66 seek materials describing the rules, policies, and 22 procedures relating to GM's issuance of refunds and replacement vehicles pursuant to the 23 Song-Beverly Act. A buyer may be entitled to a civil penalty of up to two times the actual 24 damages upon a showing that the manufacturer willfully failed to abide by any of its 25 obligations under the Act. (Cal. Civ. Code § 1794(c).) Evidence that GM has "adopted internal 26 policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress 27 under the Act" may support a finding of such willful failure to comply. Oregel v. Am. lsuzu 28 Motors, lnc. (2001) 90 Cal. App. 4th 1094, 1105. 9 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 These documents are within the scope of discovery because they are probative of GM’s 2 good faith compliance with the Act. Under the Act, a willful failure to comply with the 3 statutory duty to repurchase or replace a defective vehicle exposes the manufacturer to civil 4 penalty liability. Civ. § 1794(c); Lukather v. General Motors, LLC, 181 Cal.App.4th 1041, 1050 5 (2010). A manufacturer can establish a defense to a finding of willfulness by showing it had a 6 “good faith and reasonable belief that the facts imposing the statutory obligations were not 7 present.” Kwan, supra, 23 Cal.App.4th at p. 185. 8 GM's policies regarding its statutory duties are probative of its good faith compliance 9 with those duties and thus relevant to the Act's civil penalty provision. For instance, the 10 nonexistence of policies governing the issuance of refunds suggests a lack of good faith 11 compliance with the Act. See Kwan, 23 Cal. App. 4th at 186 (explaining that absence of 12 written policy on implementation of Act's provisions is admissible to prove lack of good faith). 13 Documents outlining "internal policies that erect[] hidden obstacles .. . to obtain[ing] redress 14 under the Act" would also go to a lack of good faith. See Oregel, supra, 90 Cal. App. at 1105. 15 Similarly, a policy or practice of evaluating repurchase requests based on insufficient 16 information is relevant to the reasonableness of a manufacturer’s decision. Kwan, supra, 23 17 Cal. App. 4th at 186 (“A decision made without the use of reasonably available information 18 germane to that decision is not a reasonable, good faith decision.”). Plaintiffs are therefore 19 entitled to know whether documents relating to refund policies and procedures exist, and if so, 20 the contents of those documents. 21 Documents relating to Defendant’s warranty and vehicle repurchase policies, 22 procedures, and practices from 2011 and onward are relevant in this case because Plaintiffs’ 23 Subject Vehicle was produced in 2011 and it would reasonably be expected to experience 24 problems similar to those experienced by other owners of 2011 model vehicles. Defendant’s 25 policies relating to responding to those complaints are therefore relevant to determining how 26 they may have responded to Plaintiffs’ complaints. 27 /// 28 /// 10 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE 1 IV. CONCLUSION 2 It is time to end GM’s “obstruct and delay” tactics in this case. GM should be ordered 3 to provide further Code-compliant responses and all responsive documents. 4 Dated: April 15, 2019 STRATEGIC LEGAL PRACTICES, APC 5 6 By: 7 Anh Nguyen 8 Attorney for Plaintiffs 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 P LAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION TO P LAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR P RODUCTION OF DOCUMENTS , SET ONE PROOF OF SERVICE ATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in County of Los Angeles, State of California. I am over the age o 18 and not a party to the within action. My business ddress is Strategic Legal Practice Century Park East, Suite 430, Los Angeles, California 90067 On April 15, 2019 I served the document(s) described as: LAINTIFF PLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF REQUEST OR PRODUCTION OF DOCUMENTS SET ONE n the interested parties in this action by nding [ ] the original [or] [ ] a true copy thereof ] to interested parties as follows [or] [ ] as stated on the attached service list: THE ERSKINE LAW GROUP Mary Lynn Arens, Esq. Deepika S. T ompson, sq. 3995 E. La Palma Ave. naheim, CA 92807 BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing corres dence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon full prepaid at Los Angeles, California. BY E MAIL: I hereby certify th this document was served from Los Angeles, lifornia, by mail delivery on the parties listed herein at their most recent known e mail address or e mail of record in this action. [ ] BY FAX: I hereby certify that this document was served from Lo ngeles, California, facsimile delivery on the parties listed herein at their most recent fax number of record in this action. BY PERSONAL SERVICE: I delivered the document, enclosed in a sealed envelope, hand to the offices of the addresse ) named herein. BY OVERNIGHT DELIVE I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, overnight packages are enclosed in a sealed envelope with a pac g slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office to a designated collection site. I declare under penalty of perjury under the laws of the State of California that the foregoi is true and correct. Executed this April 15, 2019 at Los Angeles, California. Katrina Gorgy Type or Print Name Signature LAINTI