Tyler Powell v. General Motors, LLC

Case Number

23CV01453

Case Type

Hearing Date / Time

Wed, 11/01/2023 - 10:00

Nature of Proceedings

Plaintiff’s Motion to Compel Further Responses to Requests For Production of Documents (Set One) and for Sanctions

Tentative Ruling

For Plaintiff Tyler Powell: Tionna Dolin, Ebony Randolph, Strategic Legal Practices

For Defendant General Motors, LLC: Mary Arens McBride, Arash Yaraghchian, Erskine Law Group, APC           

                       

RULING

For the reasons set forth herein:

1. Plaintiff’s motion to compel further responses to requests for production of documents (set one), and for sanctions, as to Defendant General Motors, LLC, is continued to January 4, 2024.

2. Counsel shall meet and confer, in good faith, either in-person, virtually, or telephonically no later than November 15, 2023, to resolve, or narrow, their discovery dispute. Counsels’ meet and confer shall specifically include which documents are discoverable in this matter and which objections are appropriately brought as to each request.

3. If the parties fully resolve the discovery dispute, counsel for Plaintiff is to notify the Court within two Court days of resolution.

4. If the parties are unable to completely resolve the dispute, Plaintiff shall file and electronically serve supplemental points and authorities, addressing any unresolved issues, along with an updated meet and confer declaration of counsel, no later than November 24, 2023. Defendant shall file and electronically serve any supplemental opposition no later than December 15, 2023. Plaintiff shall file and electronically serve any supplemental reply no later than December 22, 2023. The supplemental documents should specifically address each disputed request rather than repeat the same legal authority and arguments regarding the scope of discovery and objections in general terms.

5. The issuance of sanctions is reserved to the time of the next hearing.

6. The Trial Date of 4/24/24, the MSC Date of 4/5/24 and the Final CMC date of 3/6/24 are confirmed; do not stipulate to continue them. This case was filed on April 6, 2023, and should be resolved by the end of April 2024.

Background

This action was commenced on April 6, 2023, by the filing of the complaint by Tyler Powell against Defendant General Motors, LLC (“GM”). The complaint alleges causes of action as follows: (1) Violation of Civil Code section 1793.2, subdivision (d); (2) Violation of Civil Code section 1793.2, subdivision (b); (3) Violation of Civil Code section 1793.2, subdivision (a)(3); (4) Breach of the implied warranty of merchantability; and (5) Violation of the Magnusson-Moss warranty act.

As alleged in the complaint:

On December 7, 2022, Plaintiff entered into a warranty contract with GM regarding a 2019 Chevrolet Suburban 1500 which was manufactured and distributed by GM. (Complaint, ¶ 6.) The warranty contained a bumper-to-bumper warranty, powertrain warranty, emission warranty. (Id. at ¶ 7 & Exh. A.) “Defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to, transmission defects; engine defects; electrical defects; infotainment defects; among other defects and non-conformities.” (Id. at ¶ 11.) “Said defects/nonconformities substantially impair the use, value or safety of the vehicle.” (Id. at ¶ 12.) “The value of the subject vehicle is worthless and/or de minimis.” (Id. at ¶ 13.) “Under the Song-Beverly Act and/or the Magnuson-Moss Act, Defendant GM had an affirmative duty to promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the Subject Vehicle to the terms of the express warranty after a reasonable number of repair attempts.” (Id. at ¶ 14.) “Defendant GM has failed to either promptly replace the Subject Vehicle or to promptly make restitution in accordance with the Song-Beverly Act and/or the Magnuson-Moss Act.” (Id. at ¶ 15.)

GM answered the complaint on May 8, 2023, with a general denial and 25 affirmative defenses.

On June 2, 2023, Plaintiffs served GM with requests for production of documents, set one, (“RFPs”) asking for 99 categories of documents. (Stoliker Dec., ¶ 23 & Exh. 5.) GM responded to the RFPs on April 5, 2023. (Id. at ¶ 25 & Exh. 6.)

Plaintiffs filed the present motion to compel further responses to RFPs Nos. 1, 3, 7, 17, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 50, 51, 52, 53, 58, 59, 68, 76, 78, 79, 86, 91, 92, 93, 94, 95, 96, 97, 98, and 99 on September 20, 2023. Plaintiffs seek sanctions.

GM opposes the motion.

Analysis

Format of moving papers

“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Court, rule 3.113(d).)

“A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.” (Cal. Rules of Court, rule 3.113(f).)

Plaintiffs’ points and authorities in support of their motion is 18 pages long, does not include a table of contents, and does not contain a table of authorities. It also fails to include an opening summary of argument. GM’s opposition is 12 pages long and likewise does not include a table of contents or a table of authorities.

In addition, the declaration of Plaintiffs’ counsel is declared to be made upon personal knowledge rather than on information and belief. However, it contains a significant amount of “facts,” of which she would have no personal knowledge, as well as improper legal argument. This is true for both the declaration filed with the motion as well as the declaration filed concurrently with Plaintiff’s reply brief.

As an additional observation about the declarations of Plaintiff’s counsel: “We recognize that it is very common for [attorneys] to include argument in their declarations (we know it is done all the time, and we do not want to single out the trial lawyers in this regard), but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate Courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)

In addition to the argument contained in the declaration of Plaintiffs’ counsel, she makes multiple representations based on her review of records and conversations with others. An attorney is competent to recite events occurring during the course of the litigation. An attorney’s declaration of what the client’s testimony would be, based on the attorney’s discussion with the client and an investigation of the facts, is not competent. (See Donnelly v. Ayer (1986) 183 Cal.App.3d 978, 984.)

The Court will exercise its discretion and disregard all improper and incompetent matter contained in the declaration of Plaintiffs’ counsel.

Plaintiff’s counsel, Strategic Legal Practices, has been made aware of their obligations to comply with the California Rules of Court previously by this Court (see, for example, August 2, 2023, Minute Order in Case No. 22CV03192, Cordova, et al. v. General Motors). In fact, the above authorities and language is included in that Minute Order verbatim. Yet Plaintiff’s counsel continues to disregard their obligations and the Court’s instructions. Strategic Legal Practices is clearly aware of the Court’s previous comments in this regard, as they quote the same language from In re Marriage of Heggie in their objection to the Lu declaration. Should Strategic Legal Practices continue to disregard their obligations to follow the California Rules of Court and other legal authority, in this case or others, the Court will issue an Order to Show Cause as to why sanctions should not issue.

Motion to Compel Further Responses to RFPs

“A trial Court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

Code of Civil Procedure, section 2031.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.

“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) (“Glenfed”)

Meet and Confer:

GM contends that Plaintiff has failed to meet and confer in good faith regarding GM’s responses to the RFPs.

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040, italics added.) “A determination of whether an attempt at informal resolution is adequate . . . . involves the exercise of discretion.”  (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.)

“It is a central precept to the Civil Discovery Act of 1986 (§ 2016 et seq.) . . . that civil discovery be essentially self-executing. [Citation.] The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “ ‘an informal resolution of each issue.’ ” [Citations.] This rule is designed “ ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . ..’ ” [Citation.] This, in turn, will lessen the burden on the Court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434, 1435.) “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id. at p. 1439.)

Plaintiff sent a meet and confer letter to counsel for GM on February 14, 2023.

The Court has reviewed the 36 page meet and confer letter. Plaintiffs’ meet and confer letter is quite obviously a form letter, which is nearly identical to the “meet and confer” letters that have been filed relative to other motions to compel that have been filed in this Court by Plaintiff’s counsel, but it has been slightly modified to somewhat address the responses in dispute. As seems to be standard operating procedure for Plaintiff’s counsel, Plaintiff primarily discusses the validity of objections in general. Plaintiff did not attempt to limit his requests in any way, nor did he indicate a willingness to compromise on any of the requests. Plaintiff’s counsel could not have expected that their letter would assist in resolving the dispute. This is especially true given the prior discovery disputes between the two law firms.

The Court finds that Plaintiff failed to comply with his statutory duty to meet and confer in good faith.

“[T]he instant case requires reconciliation of two key principles of California discovery law: the principle of liberal construction in favor of discovery versus the requirement of informal efforts to resolve disputes. Reconciling these principles while recognizing both the broad range of a trial judge’s discretion and the proper judicial goal of minimizing unnecessary expense requires attention to the question of remedy when an effort at informal resolution is found wanting. Thus, discovery should not be automatically denied in such circumstances; instead the trial Court should consider whether it would be more appropriate to specify additional efforts which will be required before the Court will turn to the merits of the discovery dispute.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434-435.)

The Court will continue the hearing on the motion and order the parties to further meet and confer, in good faith, in an attempt at resolution of their current discovery dispute.

The Court does not find GM blameless in this matter. Counsel for both parties have been involved in numerous discovery disputes that involve virtually identical issues. Counsel for both parties are aware of the discovery rules and relevant case law. Plaintiff’s counsel knows that Plaintiff is not entitled to everything they are seeking, just as defense counsel knows that many of their boilerplate objections are without merit. “Some time ago, this Court recognized the potential for [discovery] abuse in Mannino v. Superior Court (1983) 142 Cal.App.3d 776, when we noted “ ‘We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense. . . .’ ” (Id. at p. 778) Our observations of the day to day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses.  Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court 91997) 53 Cal.App.4th 216, 221.) Plaintiff appears to be using discovery as a “sledge hammer,” while GM largely fails to provide code compliant responses.

“Civil discovery is intended to operate with a minimum of judicial intervention.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

There is little to no reason that, based in part on prior rulings of this Court on the same issues presented here, counsel should be unable to resolve the present dispute. The Court notes that a stipulated protective order was filed on September 27, 2023. It is signed by counsel for both parties. This fact should assist the parties in resolving the current discovery dispute.