Preview
Jacob Cutler (SBN 264988)
e-mail: jcutler@slpattorney.com
Jason Souza (SBN 315027)
e-mail: jsouza@slpattorney.com
TRATEGIC EGAL RACTICES
ROFESSIONAL ORPORATION
1840 Century Park East, Suite 430
Los Angeles, CA 90067
Telephone: (310) 929 4900
Facsile: (310) 943 3838
Attorneys for Plaintiff BEOUNG L. SONG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
BEOUNG L. SONG Case Nos.: 18CV331442
Plaintiff Case Initiated: July 12, 2018
vs. Hon. ter Kirwan
Dept.: 19
GENERAL MOTORS, LLC; and DOES 1
through 10, inclusive, PLAINTIFF’S PLY TO DEFENDANT’S
OPPOSITION TO PLAINTIFF’S MOTION
TO COMPEL FURTHER RESPONSES TO
Defendants. PLAINTIFF’S REQUEST FOR
PRODUCTION OF DOCUMENTS, SET
ONE
Date: April 23, 2019
Time: 9:00 a.m.
Location: Dept. 19
LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
INTRODUCTION
This Motion to Compel illustrates the latest example of the “Obstruct & Delay Strategy”
GM consistently uses in lawsuits brought by consumers who seek relief in the California courts
after GM has sold them defective vehicles; failed to repair such defective vehicles; and then
refused to repurchase those defective vehicles as required by California law.
GM’s patently meritless boilerplate objections, and failure to make any meaningful effort
to support those objections during either the meet and confer process or in its opposition, are
part of the Obstruct & Delay Strategy that GM routinely uses:
After necessitating lawsuit by failing to repurchase Plainti efective 2008
Buick Enclave stonewall by making boilerplate objections to discovery
requests seeking critical documents evidencing ’s awareness of and inability to
repair the defects plaguing Plaintiff vehicle Souza Decl. Ex.
hereafter, during the meet and confer process, GM again stonewalled by affirming
boilerplate objections and refusing to supplement its responses to any of the
requests in dispute,even though the eviden ce sought is relevant to establish vil
penalties and should be produced under controlling law; Souza Decl.
Exs.
Furthermore Plaintiff cannot reasonably assess Defendant’s potential civil penalty
liability without Defendant’s complete responses to the instant discovery requests in
spute.
As evidenced by GM’s objections, Defendant’s meet and confer letter, and opposition
they have confirmed that they will not supplement their responses to any of the requests at
issue in Plaintiff Motion The reason for Defendant’s failure to produce such relevant
documents from its internal records is obvious: hey will demonstrate Defendant’s awareness
of the Defects, its inability to fix them regardless of how many repair attempts are made, its
refusal to disclose it to unwary consumers and its willfulness in failing to repurchase
o minimize voluminous and duplicative filings, the Declaration of Jason Souza, submitted with the
moving pape , will be cited for factual references.
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
Plaintiff vehicle in accordance with its affirmative obligation under the Song Beverly
Consumer Warranty Act. Cal. Evid. Code §413 (permitting an adverse inference when a
party intentionally conceals evidence).
tries to divert this Court’s attention from its Obstruct & Delay tactics by throwing up
conclusory statements about the alleged burden of compliance. Yet, GM offers no admissible
evidence to support its burden claims. When GM’s unsupported claims of “undue burden”
fails, GM shifts to equally unsupported, and ad hominem, attacks on Plaintiff counsel in the
hope of diverting this Court’s attention from the discovery issues presented.
GM can raise whatever affirmative defenses to liability it deems appropriate. But GM
cannot assert defenses while denying Plaintiff the discovery necessary to rebut them. For
example: GM may claim Plaintiff vehicle was repaired. But at the same time, GM refuses to
provide discovery as to GM’s internal investigations of th Air Bag and Steering Defects, and
about which many other similarly situated consumers complained. GM may assert its repair
procedures (e.g., those detailed in GM’s Technical Service Bulletins (“TSBs”) Recalls, and
ampaigns) are effective. But having o claimed, GM cannot shield from discovery
information that would rebut GM’s claims (e.g., testimony that GM does not yet understand
the nature of the Defects; multiple customer complaints of the same problems continuing after
the “fixes” required by TSBs Recalls, and Campaigns were done).
Similarly, while GM can claim that it “believed in good faith” that it was not required to
repurchase or replace Plaintiff ehicle, GM cannot at the same time withhold evidence
tablishing that: (1) the Air Bag and Steering Defects in 2008 Buick Enclave vehicles,
including Plaintiff vehicle, simply are not “fixable” (2) GM knew, or reasonably should
have known, that the problems were not “fixable”; (3) GM’s consumer repurchase policies and
procedures are designed to conceal GM’s knowledge that the problems were not “fixable”; and
evidence GM’s bad faith sufficient to support the civil penalty that the Legislature included in
the Lemon Law to prevent such tactics by automobile manufacturers.
Plaintiff moving papers established good cause for production and sought an order
compelling further responses and overruling Defendant's boilerplate objections. Defendant's
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
opposition papers neither undermined the relevanc of the requested materials nor provided a
legal basis to sustain its objections. Plaintiff Motion to Compel should thus be granted.
AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED
BECAUSE PLAINTIFF ESTABLISHED GOOD CAUSE FOR PRODUCTION
ND DEFENDANT FAILED TO JUSTIFY ITS OBJECTIONS
Plaintiff has provided sufficient facts to demonstrate good cause for the requested
discovery. Plaintiff purchased a defective 2008 Buick Enclave which suffered from the
ongoing Air Bag and Steering Defects Souza Decl. ¶¶ , Ex. 1 Plaintiff presented the
vehicle to Defendant to repair these defects on at least seven ) occasions In spite of its
statutory obligations, Defendant failed to repurchase the defective vehicle. Furthermore,
Defendant denied liability in its Answer, and in its Responses to Plaintiff Requests for
Admission and continues withholding discovery that will prove both ’s liability for failing
to repurchase the vehicle and subject Defendant to civil penalties.
Plaintiff Requests Are Not Only Discoverable But Relevant T
This Case
Plaintiff Requests seek documents relating to ’s internal investigation and
analysis of the Air Bag and Steering Defects plaguing Plaintiff vehicle. T requested
materials are reasonably calculated to lead to the discovery of documents regarding nature
and duration of the defects Defendant's awareness of the defects, and Defendant inability to
repair the defects. These materials are admissible because they are probative of
nonconformities with the Subject Vehicle, a necessary element of Plaintiff case. Similarly,
the documents are probative of Defendant's ability to repair Plaintiff vehicle within a
reasonable number of opportunities. The documents also include technical information about
the defects that Plaintiff expert needs in order to give reliable opinion testimony as to the
nature of the defects and how those defects impair the use, value, and safety of the vehicle Cf.
Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 154 55 (2013) (affirming admissibility of
expert testimony regarding similar problems in vehicles with same model transmission as the
laintiff). Finally, the requested documents go to Defendant’s knowledge of the defects and its
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
ability to repair the defects. Consequently, the materials are relevant to the issue of civil
penalties (i.e. whether Defendant's refusal to repurchase Plaintiff vehicle was based on a
“good faith and reasonable belief that the facts imposing the statutory obligations were not
esent Kwan 23 Cal. App. 4th
Contrary to Defendant’s attempts to distinguish Donlen v. For Motor Company, 217
Cal.App.4th 138 (2013) and Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 967 (2009), the
cases support the scope of discoverable evidence requested here. Plaintiff eks documents
relating to internal investigation and analysis concerning similar Defect experienced by
Plaintiff and other customers. See Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138,
144, 153 [evidence of special service bulletins issued before Plaintiff bought his truck and
evidence of similar transmission problems in other trucks were relevant and admissible];
Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978 979, 986 [documents of
warranty complaints, service histories, and employee records concerning the subject defect in
all affected vehicles and the company’s responses and instructions re: cure were discoverable
and relevant to issue of Defendant’s good faith treatment of the problem].
misleadingly states that Doppe did not address the scope of discovery. (Opp. at
.) Not s . The discovery requests at issu e in Doppes involved “all documents relating
(1) customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model
vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor
used on that model; (3) all warranty repairs during the period of January 2002 to date of that
model; (4) all customer complaints of a wax oil smell caused by the rus t inhibitor used on the
vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil
smell arising from the vehicle’s rust inhibitor.” Doppes, 174 Cal.App.4th at 973 974 (emphasis
added).
Moreover, Donlen noted that evidence of other similar failures in the same component
tries to avoid the impact of Doppes citing to the unpublished views of a trial judge in another
case.
Moreover, the jury was instructed that defendant had been ordered to produce “All other documents
ny 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 a 986 (emphasis added).
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
systems as in Plaintiff vehicle is admissible at the time of trial. Donlen, 217 Cal.App.4th at
’s Claims That Plaintiff Requests Are Overbroad Is Misleading And
Unsupported By The Facts
asserts Plaintiff discovery requests are overbroad To the contrary, aintiff
narrowly tailored the requests to documents concerning only Air Bag and Steering Defects
Plaintiff hicle. Furthermore, the Defect definition was carefully constructed ased upon
Plaintiff documented complaints and repairs. Souza Decl. ¶¶ Furthermore,
uring the meet and confer process Plaintiff noted that his requests were limit to the year
make and model of the Subject Vehicle, regarding Air Bag and Steering Defects in the Subject
Vehicle Souza Decl. ¶
C. There Is No Burden Involved in Producing the Documents
's Opposition sets forth unsupported assertions about the burden of compliance.
Precedent clearly holds that any claim of un ue burden by the responding party must be
substantiated by evidence. See Coriell v. Super. Ct., 39 Cal. App. 3d 487, 492 93 (1974)
(holding that answering an interrogatory would require “considerable effort” and that “’many
hundreds of man hours’ and ‘ap roximately nine months’ [would] be required to supply
answers” was conclusory and not factual in nature accordingly, the trial court erred in
relieving the responding party from providing further responses). Here, aside from arguments
in its brief, which are not evidence, offers no factual support regarding the alleged costs of
document production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015)
("[A]rguments briefsare evidence.")
In any event, as the responding party, had the in tial burden of proving the
requested ESI was t reasonably accessible because of undue burden or expense which GM
failed to do. Civ. Proc. § 2031.310(d). Again, GM offer no fa tual support regarding the
alleged costs of document production. Comstock v. umphries, 786 F.3d 701, 709 (9th Cir.
Such discussion arose in connection with the Court’s rejection of ’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
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
2015) ("[A]rguments briefs are evidence.") Beyond that, 's opposition was
completely silent as to the specific nature of the burden such as time, labor, and monetary costs
or prejudice incurred uoting the general discovery provisions of Civ. Proc. § 2019.030) But
see Civ. Proc. § 2031.310(g)(4) (instructing trial court, when ruling on a motion to compel ESI
to limit production where the likely burden or expense of the proposed discovery outweighs
the li ely benefit, taking into account the amount in controversy, the resources of the parties
the importance of the issues in the litigation, and the importance of the requested discovery in
resolving the issues ") (emphasis added).
also omitted relevant actors such as the "resources of the parties" and "the
importance of the requested discovery in resolving the issues." More importantly, grossly
undervalues the amount in controversy by ignoring the treble damage and attorney fee
provisions of the Song Beverly Act. Significantly, the legislatively imposed fee shifting
provisions are necessary to allow rational, budget constrained consumers to seek a judicial
remedy when their rights are violated by powerful, well financed defendants such as
Motor Com any. See Covenant Mutual Ins. Co. v. Y Cal. App. 3d 318, 324 25
(explaining that unilateral fee shifting is a legislative tool to "encourage[e] more effective
enforcement of [] important public policy" by allowing "injured parties to seek redress .. . in
situations where they otherwise would not find it economical to sue."). Similarly, the civil
penalty provisions are necessary to deter powerful companies from violating the rights of
consumers in the first place. Absent such a provision, a man facturer who knew the consumer
was entitled to a refund or replacement might nevertheless be tempted to refuse compliance in
the hope the consumer would not persist, secure in the knowledge its liability was limited to a
refund or replacement.” Kwan v. Me cedes Benz of N. Am., 23 Cal. App. 4th 174, 184 (1994).
The Legislature need not have imposed unilateral fee shifting and treble damage provisions in
the Song Beverly Act. Yet, because it chose to do so, the value of this case is at least three
[W]here the Legislature wants to encourage litigation it can intervene to alter the decision making
ation 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
intervention, more injured pares 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.
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
times the amount estimated by . Irrespective of the exact value of the case, however, it
necessarily exceeds the burden of production because there is no burden of production.
’s Claims Of Trade Secret And Confidentiality Are Unsubstantiated
Lastly, claim that documents Plaintiff are seeking are confidential and trade
secrets. Opp. at s an initial matter, objections based on confidentiality are not
proper grounds for withholding responsive information. (See Columbia Broadcasting System,
Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We know of no case holding that this is
a proper objection to an otherwise proper interrogatory.”].) The answering party should seek a
protective order to excuse the duty to answer. An objection is not the equivalent of such a
motion. ( .) Nevertheless Plaintiff are willing to stipulate to the LASC Confidential
protective order to address GM’s unsubstantiated claims.
Instead of explaining its position through the meet and confer process as required by
the Local Rules of Court Defendant simply attached the Lu Declaration which does not provide
any evidence to show how disclosure of these documents “would create a substantial risk of
serious financial or other injury, if Disclosed to another Party or non Party, and that such risk
cannot be avoided by less restrictive means” (i.e.,the LASC Confidential Protective Order).
Further, Declaration fails to comply with Rule of Court 3.1115 because it does not
include a caption and does not specify the motion that it supports or opposes; lacks foundation;
is vague and ambiguous; and is wholly conclusory in terms of any claim that the documents at
issue contain “trade secrets,” or are otherwise confidential, and would pose substantial risk of
serious harm which cannot be avoided by less restrictive means. Potentially more troubling, it
is not even clear that Mr. Lu has reviewed any of the documents at issue in Defendant’s
Motion. Indeed, nowhere does Mr. Lu expressly testify that he has reviewed the documents.
stead, Mr. Lu’s declaration describes generic categories of documents that are seemingly
unconnected with the instant litigation.
However, should GM insist on the Highly Confidential Protective Order (“HCPO”),
Plaintiffs object as the HCPO contains onerous provisions which GM has not sufficiently
demonstrated why such heightened and onerous protections are necessary. GM fails to
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
produce any admissible evidentiary materials showing the any of the documents contain
protectable “trade secrets, proprietary and/or confidential information.” Instead, GM asserts
bare conclusions that rest solely upon the uncontested observation that GM suffer “competitive
harm as well as harm in the marketplace.” Thompson, Sept. St at But cf. Nativi v.
Deutsche Ban Nat’l Trust Co., 223 Cal. App. 4th 261, 318 (2014) (noting that conclusory
declarations lacking in factual specificity are insufficient to establish good cause justifying a
protective order). The unremarkable fact that GM operates in a competitive market lace,
without more, is not the least bit probative of whether documents relating to the engine defects
are confidential or contain trade secrets.
The Refund and Warranty Policy & Procedure Requests Are Relevant to
Defendant's Civil Penalty Liability
Requ sts Nos , and materials describing the rules, policies, and
procedures relating to 's issuance of refunds and replacement vehicles pursuant to the
Song Beverly Act. hese documents are within the scope of discovery because they are
prob tive of ’s good faith compliance with the Act Under the Act, a willful failure to
comply with the statutory duty to repurchase or replace a defective vehicle exposes the
manufacturer to civil penalty liability. Civ. § 1794(c); Lukather 181 Cal. App. 4 at 1050. A
manufacturer an establish a defense to a finding of willfulness by showing it had a “good faith
and reasonable belief that the facts imposing the statutory obligations were not present.” Kwan
23 Cal. App. 4th at 185.
's policies regarding its statutory duties are indicative of its good faith compliance
with those duties and thus relevant to the Act's civil penalty provision. or instance, the
nonexistence of policies governing the issuance of refunds suggests a lack of good faith
complianc with the Act. See Kwan, 23 Cal. App. 4th at 186 (explaining that absence of
written policy on implementation of Act's provisions is admissible to prove lack of good faith).
ocuments outlining "internal policies that erect[] hidden obstacles .. . to obt in[ing] redress
under the Act" would also to a lack of good faith. See Oregel, 90 Cal. App. 1105. Similarly,
a policy or practice of evaluating repurchase requests based on insufficient information is
LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
relevant to the reasonableness of a manufacturer’s ecision. Kwan, 23 Cal. App. 4th at 186 (“
decision made without the use of reasonably available information germane to that decision is
a reasonable, good faith decision.”). Plaintiff is therefore entitled to know whether
documents relating to refund policies and procedures exist, and if so, the contents of those
documents.
IV. CONCLUSION
It is time to end ’s Obstruct and Delay tactics in this case. should be ordered to
provide further responses and responsive documents.
Dated: April , 201 Respectfully submitted,
TRATEGIC EGAL RACTICES APC
Jason Souza
Attorney for Plaintiff
LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
PROOF OF SERVICE
STATE OF CALIFORNIA, UNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is Strategic Legal Practices, 1
Century Park East, Suite 430, Los Angeles, California 90067.
On April 16, 2019 I caused to be served the document(s) described as:
PLAINTIFF’S PLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTIONTO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR
PRODUCTION OF DOCUMENTS, T ONE
on the interested parties in this action by sending [ ] the original [or] [ ] a true copy thereof
] to interested parties as follows [or] [ ] as stated on the attached service list:
Mary Lynn Arens
Joseph Dankert
THE ERSKINE LAW GROUP
East La Palma Ave.
Anaheim, 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 collectionand processing co respo ence 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 fully prepaid at Los Angeles, California.
BY OV RNIGHT DELIVERY: I am “readily familiar” wit 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 packing 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
foregoing is true and correct.
Executed t April 16, 2019 at Los Angeles, California.
Priscilla Bankhead
Type or Print Name Signature
LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST
FOR RODUCTION OF OCUMENTS
Preview
Jacob Cutler (SBN 264988) e-mail: jcutler@slpattorney.com Jason Souza (SBN 315027) e-mail: jsouza@slpattorney.com TRATEGIC EGAL RACTICES ROFESSIONAL ORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929 4900 Facsile: (310) 943 3838 Attorneys for Plaintiff BEOUNG L. SONG SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA BEOUNG L. SONG Case Nos.: 18CV331442 Plaintiff Case Initiated: July 12, 2018 vs. Hon. ter Kirwan Dept.: 19 GENERAL MOTORS, LLC; and DOES 1 through 10, inclusive, PLAINTIFF’S PLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO Defendants. PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE Date: April 23, 2019 Time: 9:00 a.m. Location: Dept. 19 LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS INTRODUCTION This Motion to Compel illustrates the latest example of the “Obstruct & Delay Strategy” GM consistently uses in lawsuits brought by consumers who seek relief in the California courts after GM has sold them defective vehicles; failed to repair such defective vehicles; and then refused to repurchase those defective vehicles as required by California law. GM’s patently meritless boilerplate objections, and failure to make any meaningful effort to support those objections during either the meet and confer process or in its opposition, are part of the Obstruct & Delay Strategy that GM routinely uses: After necessitating lawsuit by failing to repurchase Plainti efective 2008 Buick Enclave stonewall by making boilerplate objections to discovery requests seeking critical documents evidencing ’s awareness of and inability to repair the defects plaguing Plaintiff vehicle Souza Decl. Ex. hereafter, during the meet and confer process, GM again stonewalled by affirming boilerplate objections and refusing to supplement its responses to any of the requests in dispute,even though the eviden ce sought is relevant to establish vil penalties and should be produced under controlling law; Souza Decl. Exs. Furthermore Plaintiff cannot reasonably assess Defendant’s potential civil penalty liability without Defendant’s complete responses to the instant discovery requests in spute. As evidenced by GM’s objections, Defendant’s meet and confer letter, and opposition they have confirmed that they will not supplement their responses to any of the requests at issue in Plaintiff Motion The reason for Defendant’s failure to produce such relevant documents from its internal records is obvious: hey will demonstrate Defendant’s awareness of the Defects, its inability to fix them regardless of how many repair attempts are made, its refusal to disclose it to unwary consumers and its willfulness in failing to repurchase o minimize voluminous and duplicative filings, the Declaration of Jason Souza, submitted with the moving pape , will be cited for factual references. LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS Plaintiff vehicle in accordance with its affirmative obligation under the Song Beverly Consumer Warranty Act. Cal. Evid. Code §413 (permitting an adverse inference when a party intentionally conceals evidence). tries to divert this Court’s attention from its Obstruct & Delay tactics by throwing up conclusory statements about the alleged burden of compliance. Yet, GM offers no admissible evidence to support its burden claims. When GM’s unsupported claims of “undue burden” fails, GM shifts to equally unsupported, and ad hominem, attacks on Plaintiff counsel in the hope of diverting this Court’s attention from the discovery issues presented. GM can raise whatever affirmative defenses to liability it deems appropriate. But GM cannot assert defenses while denying Plaintiff the discovery necessary to rebut them. For example: GM may claim Plaintiff vehicle was repaired. But at the same time, GM refuses to provide discovery as to GM’s internal investigations of th Air Bag and Steering Defects, and about which many other similarly situated consumers complained. GM may assert its repair procedures (e.g., those detailed in GM’s Technical Service Bulletins (“TSBs”) Recalls, and ampaigns) are effective. But having o claimed, GM cannot shield from discovery information that would rebut GM’s claims (e.g., testimony that GM does not yet understand the nature of the Defects; multiple customer complaints of the same problems continuing after the “fixes” required by TSBs Recalls, and Campaigns were done). Similarly, while GM can claim that it “believed in good faith” that it was not required to repurchase or replace Plaintiff ehicle, GM cannot at the same time withhold evidence tablishing that: (1) the Air Bag and Steering Defects in 2008 Buick Enclave vehicles, including Plaintiff vehicle, simply are not “fixable” (2) GM knew, or reasonably should have known, that the problems were not “fixable”; (3) GM’s consumer repurchase policies and procedures are designed to conceal GM’s knowledge that the problems were not “fixable”; and evidence GM’s bad faith sufficient to support the civil penalty that the Legislature included in the Lemon Law to prevent such tactics by automobile manufacturers. Plaintiff moving papers established good cause for production and sought an order compelling further responses and overruling Defendant's boilerplate objections. Defendant's LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS opposition papers neither undermined the relevanc of the requested materials nor provided a legal basis to sustain its objections. Plaintiff Motion to Compel should thus be granted. AN ORDER COMPELLING FURTHER RESPONSES IS WARRANTED BECAUSE PLAINTIFF ESTABLISHED GOOD CAUSE FOR PRODUCTION ND DEFENDANT FAILED TO JUSTIFY ITS OBJECTIONS Plaintiff has provided sufficient facts to demonstrate good cause for the requested discovery. Plaintiff purchased a defective 2008 Buick Enclave which suffered from the ongoing Air Bag and Steering Defects Souza Decl. ¶¶ , Ex. 1 Plaintiff presented the vehicle to Defendant to repair these defects on at least seven ) occasions In spite of its statutory obligations, Defendant failed to repurchase the defective vehicle. Furthermore, Defendant denied liability in its Answer, and in its Responses to Plaintiff Requests for Admission and continues withholding discovery that will prove both ’s liability for failing to repurchase the vehicle and subject Defendant to civil penalties. Plaintiff Requests Are Not Only Discoverable But Relevant T This Case Plaintiff Requests seek documents relating to ’s internal investigation and analysis of the Air Bag and Steering Defects plaguing Plaintiff vehicle. T requested materials are reasonably calculated to lead to the discovery of documents regarding nature and duration of the defects Defendant's awareness of the defects, and Defendant inability to repair the defects. These materials are admissible because they are probative of nonconformities with the Subject Vehicle, a necessary element of Plaintiff case. Similarly, the documents are probative of Defendant's ability to repair Plaintiff vehicle within a reasonable number of opportunities. The documents also include technical information about the defects that Plaintiff expert needs in order to give reliable opinion testimony as to the nature of the defects and how those defects impair the use, value, and safety of the vehicle Cf. Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 154 55 (2013) (affirming admissibility of expert testimony regarding similar problems in vehicles with same model transmission as the laintiff). Finally, the requested documents go to Defendant’s knowledge of the defects and its LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS ability to repair the defects. Consequently, the materials are relevant to the issue of civil penalties (i.e. whether Defendant's refusal to repurchase Plaintiff vehicle was based on a “good faith and reasonable belief that the facts imposing the statutory obligations were not esent Kwan 23 Cal. App. 4th Contrary to Defendant’s attempts to distinguish Donlen v. For Motor Company, 217 Cal.App.4th 138 (2013) and Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 967 (2009), the cases support the scope of discoverable evidence requested here. Plaintiff eks documents relating to internal investigation and analysis concerning similar Defect experienced by Plaintiff and other customers. See Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 144, 153 [evidence of special service bulletins issued before Plaintiff bought his truck and evidence of similar transmission problems in other trucks were relevant and admissible]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973, 978 979, 986 [documents of warranty complaints, service histories, and employee records concerning the subject defect in all affected vehicles and the company’s responses and instructions re: cure were discoverable and relevant to issue of Defendant’s good faith treatment of the problem]. misleadingly states that Doppe did not address the scope of discovery. (Opp. at .) Not s . The discovery requests at issu e in Doppes involved “all documents relating (1) customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage model vehicle; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor used on that model; (3) all warranty repairs during the period of January 2002 to date of that model; (4) all customer complaints of a wax oil smell caused by the rus t inhibitor used on the vehicle; and (5) vehicle tests conducted on that model to confirm whether there was a wax oil smell arising from the vehicle’s rust inhibitor.” Doppes, 174 Cal.App.4th at 973 974 (emphasis added). Moreover, Donlen noted that evidence of other similar failures in the same component tries to avoid the impact of Doppes citing to the unpublished views of a trial judge in another case. Moreover, the jury was instructed that defendant had been ordered to produce “All other documents ny 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 a 986 (emphasis added). LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS systems as in Plaintiff vehicle is admissible at the time of trial. Donlen, 217 Cal.App.4th at ’s Claims That Plaintiff Requests Are Overbroad Is Misleading And Unsupported By The Facts asserts Plaintiff discovery requests are overbroad To the contrary, aintiff narrowly tailored the requests to documents concerning only Air Bag and Steering Defects Plaintiff hicle. Furthermore, the Defect definition was carefully constructed ased upon Plaintiff documented complaints and repairs. Souza Decl. ¶¶ Furthermore, uring the meet and confer process Plaintiff noted that his requests were limit to the year make and model of the Subject Vehicle, regarding Air Bag and Steering Defects in the Subject Vehicle Souza Decl. ¶ C. There Is No Burden Involved in Producing the Documents 's Opposition sets forth unsupported assertions about the burden of compliance. Precedent clearly holds that any claim of un ue burden by the responding party must be substantiated by evidence. See Coriell v. Super. Ct., 39 Cal. App. 3d 487, 492 93 (1974) (holding that answering an interrogatory would require “considerable effort” and that “’many hundreds of man hours’ and ‘ap roximately nine months’ [would] be required to supply answers” was conclusory and not factual in nature accordingly, the trial court erred in relieving the responding party from providing further responses). Here, aside from arguments in its brief, which are not evidence, offers no factual support regarding the alleged costs of document production. Comstock v. Humphries, 786 F.3d 701, 709 (9th Cir. 2015) ("[A]rguments briefsare evidence.") In any event, as the responding party, had the in tial burden of proving the requested ESI was t reasonably accessible because of undue burden or expense which GM failed to do. Civ. Proc. § 2031.310(d). Again, GM offer no fa tual support regarding the alleged costs of document production. Comstock v. umphries, 786 F.3d 701, 709 (9th Cir. Such discussion arose in connection with the Court’s rejection of ’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 LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS 2015) ("[A]rguments briefs are evidence.") Beyond that, 's opposition was completely silent as to the specific nature of the burden such as time, labor, and monetary costs or prejudice incurred uoting the general discovery provisions of Civ. Proc. § 2019.030) But see Civ. Proc. § 2031.310(g)(4) (instructing trial court, when ruling on a motion to compel ESI to limit production where the likely burden or expense of the proposed discovery outweighs the li ely benefit, taking into account the amount in controversy, the resources of the parties the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues ") (emphasis added). also omitted relevant actors such as the "resources of the parties" and "the importance of the requested discovery in resolving the issues." More importantly, grossly undervalues the amount in controversy by ignoring the treble damage and attorney fee provisions of the Song Beverly Act. Significantly, the legislatively imposed fee shifting provisions are necessary to allow rational, budget constrained consumers to seek a judicial remedy when their rights are violated by powerful, well financed defendants such as Motor Com any. See Covenant Mutual Ins. Co. v. Y Cal. App. 3d 318, 324 25 (explaining that unilateral fee shifting is a legislative tool to "encourage[e] more effective enforcement of [] important public policy" by allowing "injured parties to seek redress .. . in situations where they otherwise would not find it economical to sue."). Similarly, the civil penalty provisions are necessary to deter powerful companies from violating the rights of consumers in the first place. Absent such a provision, a man facturer who knew the consumer was entitled to a refund or replacement might nevertheless be tempted to refuse compliance in the hope the consumer would not persist, secure in the knowledge its liability was limited to a refund or replacement.” Kwan v. Me cedes Benz of N. Am., 23 Cal. App. 4th 174, 184 (1994). The Legislature need not have imposed unilateral fee shifting and treble damage provisions in the Song Beverly Act. Yet, because it chose to do so, the value of this case is at least three [W]here the Legislature wants to encourage litigation it can intervene to alter the decision making ation 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 intervention, more injured pares 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. LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS times the amount estimated by . Irrespective of the exact value of the case, however, it necessarily exceeds the burden of production because there is no burden of production. ’s Claims Of Trade Secret And Confidentiality Are Unsubstantiated Lastly, claim that documents Plaintiff are seeking are confidential and trade secrets. Opp. at s an initial matter, objections based on confidentiality are not proper grounds for withholding responsive information. (See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We know of no case holding that this is a proper objection to an otherwise proper interrogatory.”].) The answering party should seek a protective order to excuse the duty to answer. An objection is not the equivalent of such a motion. ( .) Nevertheless Plaintiff are willing to stipulate to the LASC Confidential protective order to address GM’s unsubstantiated claims. Instead of explaining its position through the meet and confer process as required by the Local Rules of Court Defendant simply attached the Lu Declaration which does not provide any evidence to show how disclosure of these documents “would create a substantial risk of serious financial or other injury, if Disclosed to another Party or non Party, and that such risk cannot be avoided by less restrictive means” (i.e.,the LASC Confidential Protective Order). Further, Declaration fails to comply with Rule of Court 3.1115 because it does not include a caption and does not specify the motion that it supports or opposes; lacks foundation; is vague and ambiguous; and is wholly conclusory in terms of any claim that the documents at issue contain “trade secrets,” or are otherwise confidential, and would pose substantial risk of serious harm which cannot be avoided by less restrictive means. Potentially more troubling, it is not even clear that Mr. Lu has reviewed any of the documents at issue in Defendant’s Motion. Indeed, nowhere does Mr. Lu expressly testify that he has reviewed the documents. stead, Mr. Lu’s declaration describes generic categories of documents that are seemingly unconnected with the instant litigation. However, should GM insist on the Highly Confidential Protective Order (“HCPO”), Plaintiffs object as the HCPO contains onerous provisions which GM has not sufficiently demonstrated why such heightened and onerous protections are necessary. GM fails to LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS produce any admissible evidentiary materials showing the any of the documents contain protectable “trade secrets, proprietary and/or confidential information.” Instead, GM asserts bare conclusions that rest solely upon the uncontested observation that GM suffer “competitive harm as well as harm in the marketplace.” Thompson, Sept. St at But cf. Nativi v. Deutsche Ban Nat’l Trust Co., 223 Cal. App. 4th 261, 318 (2014) (noting that conclusory declarations lacking in factual specificity are insufficient to establish good cause justifying a protective order). The unremarkable fact that GM operates in a competitive market lace, without more, is not the least bit probative of whether documents relating to the engine defects are confidential or contain trade secrets. The Refund and Warranty Policy & Procedure Requests Are Relevant to Defendant's Civil Penalty Liability Requ sts Nos , and materials describing the rules, policies, and procedures relating to 's issuance of refunds and replacement vehicles pursuant to the Song Beverly Act. hese documents are within the scope of discovery because they are prob tive of ’s good faith compliance with the Act Under the Act, a willful failure to comply with the statutory duty to repurchase or replace a defective vehicle exposes the manufacturer to civil penalty liability. Civ. § 1794(c); Lukather 181 Cal. App. 4 at 1050. A manufacturer an establish a defense to a finding of willfulness by showing it had a “good faith and reasonable belief that the facts imposing the statutory obligations were not present.” Kwan 23 Cal. App. 4th at 185. 's policies regarding its statutory duties are indicative of its good faith compliance with those duties and thus relevant to the Act's civil penalty provision. or instance, the nonexistence of policies governing the issuance of refunds suggests a lack of good faith complianc with the Act. See Kwan, 23 Cal. App. 4th at 186 (explaining that absence of written policy on implementation of Act's provisions is admissible to prove lack of good faith). ocuments outlining "internal policies that erect[] hidden obstacles .. . to obt in[ing] redress under the Act" would also to a lack of good faith. See Oregel, 90 Cal. App. 1105. Similarly, a policy or practice of evaluating repurchase requests based on insufficient information is LAINTIFF Y TO EFENDANT PPOSITION TO LAINTIF OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS relevant to the reasonableness of a manufacturer’s ecision. Kwan, 23 Cal. App. 4th at 186 (“ decision made without the use of reasonably available information germane to that decision is a reasonable, good faith decision.”). Plaintiff is therefore entitled to know whether documents relating to refund policies and procedures exist, and if so, the contents of those documents. IV. CONCLUSION It is time to end ’s Obstruct and Delay tactics in this case. should be ordered to provide further responses and responsive documents. Dated: April , 201 Respectfully submitted, TRATEGIC EGAL RACTICES APC Jason Souza Attorney for Plaintiff LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS PROOF OF SERVICE STATE OF CALIFORNIA, UNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Strategic Legal Practices, 1 Century Park East, Suite 430, Los Angeles, California 90067. On April 16, 2019 I caused to be served the document(s) described as: PLAINTIFF’S PLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTIONTO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, T ONE on the interested parties in this action by sending [ ] the original [or] [ ] a true copy thereof ] to interested parties as follows [or] [ ] as stated on the attached service list: Mary Lynn Arens Joseph Dankert THE ERSKINE LAW GROUP East La Palma Ave. Anaheim, 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 collectionand processing co respo ence 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 fully prepaid at Los Angeles, California. BY OV RNIGHT DELIVERY: I am “readily familiar” wit 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 packing 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 foregoing is true and correct. Executed t April 16, 2019 at Los Angeles, California. Priscilla Bankhead Type or Print Name Signature LAINTIFF S Y TO EFENDANT PPOSITION TO LAINTIF S OTION TO OMPEL URTHER ESPONSES TO EQUEST FOR RODUCTION OF OCUMENTS