Case Number: BC695286 Hearing Date: October 16, 2018 Dept: 34

SUBJECT: Motion to Compel Further Responses to Request for Production

Moving Party: Plaintiff Debbie Niemi-Escalera

Resp. Party: Defendant General Motors, LLC

The motion is DENIED.

PRELIMINARY COMMENTS:

The Court is concerned that both parties are simply churning out discovery and discovery responses, without thinking how this case can be most efficiently and effectively resolved. As indicated below, the Court is concerned with Plaintiff’s failing to seriously meet-and-confer in order to resolve this discovery dispute without the need for Court intervention.

The Court also notes that both parties appear to be recycling previous pleadings. The Court recognizes that counsel need not reinvent the wheel each time a tire needs to be changed on the car. Nonetheless, in this case, Plaintiff states in her motion that “[t]he documents sought are indisputably relevant to Plaintiff’s claims that Defendant possessed prior knowledge of the Battery Defects” (See Motion, p. 1:16-22) even though there is no issue of a Battery defect in the discovery at issue. Similarly, Defendant’s motion and separate statement are also obviously based on a previously-used template as they contain typos and omissions that are identical to those in a previously-submitted opposition. (Cf. Def.’s Opposition to Motion to Compel Further RFP filed in Eagly v. General Motors, LLC (BC675264).)

BACKGROUND:

Plaintiff commenced this action on 02/23/18 against defendant for: (1) violation of Civil Code section 1793.2(D); (2) violation of Civil Code section 1793.2(B); (3) violation of Civil Code section 1793.2(A)(3); (4) breach of express written warranty; (5) breach of the implied warranty of merchantability; and (6) violation of the Magnuson-Moss Warranty Act;

ANALYSIS:

Plaintiff moves the Court for an order compelling defendant to produce documents responsive to Request for Production (Set One) Numbers: 7, 8, 10, 17, 18, 20, 22-27, 39, 41, 48-52, and 65. (See Notice of Motion, p. 2:3-7.)

Relevant Law

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310(b)(2), 2030.300(b), 2033.290(b).) “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.) However, a discovery motion need not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith. (See Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide:Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions.” (Edmon & Karnow, supra, at ¶ 8:1496.)

Discussion

The instant motion is timely and plaintiff provides a separate statement and a meet and confer declaration. (See Reeder Decl. ¶¶16-19, Exh. 6, 7; Code Civ. Proc., § 2031.310(c); California Rules of Court, Rule 3.1345(a), (c).)

The requests at issue fall into two broad categories:

“(1) those relating to Defendant’s internal investigation and analysis of the defects plaguing Plaintiff’s vehicle and establishing that Defendant previously knew of such defects and knew it could not repair them regardless of repair attempts but nevertheless failed to repurchase the vehicle (i.e., Nos. 8, 10, 17, 18, 20, 22-27, and 41); [and]

(2) those relating to Defendant’s warranty and vehicle repurchase policies, procedures, and practices (i.e., Nos. 7, 48-52, and 65.)”

(Motion, p. 1:10-15.)

Plaintiff’s meet and confer efforts

Plaintiff declares that she engaged in a good faith effort to meet and confer with defendant before filing this motion by sending a letter on 03/23/18 “attempting to meet & confer regarding discovery of electronically sored information” and sending another letter on 06/26/18 “concerning Defendant’s boilerplate objections and how the discovery should be produced under controlling law. Plaintiff also offered to stipulate to the LASC Confidential Protective Order as a compromise to alleviate Defendant’s concerns of confidentiality or trade secret.” (Reeder Decl, ¶¶ 17, 18.) Plaintiff further declares that defendant did not respond to either letter. (Id. at ¶¶17, 19.)

Plaintiff’s first letter, sent on 03/23/18, cannot constitute an effort to meet and confer with respect to the instant motion. By plaintiff’s own admission, the subject discovery responses were served simultaneously with that letter on 03/23/18. (See Id. at ¶ 14, Exh. 4.) The letter also acknowledges that “Defendant has not yet provided Plaintiff with any discovery responses.” (Id. at ¶ 17, Exh. 6, p. 1, ¶ 1.) It is simply not possible that a letter sent at the same time as the subject discovery request and necessarily before defendant could produce any responses could constitute a good faith effort to meet and confer with respect to defendant’s allegedly deficient responses.

Upon receiving the verifications to defendant’s responses to the subject discovery requests, plaintiff sent a meet and confer letter on 06/26/18. (Id. at ¶ 18, Exh. 7.) Defendant argues that this letter was not a good faith effort to meet and confer because, “[r]ather than attempting to narrow the scope of the discovery requests at issue, Plaintiff took the position that each of the discovery requests in question were completely appropriate and necessary.” (Opposition, p. 3:20-22.) Additionally, “[c]ontrary to Plaintiff’s assertions, GM did in fact respond to Plaintiff’s June 26, 2018 meet and confer letter on July 6, 2018.” (Id. at p. 3:25-26; Arens Decl., Exh. A.) In this letter:

“GM addressed Plaintiff’s ESI concerns and further explained its positions regarding the requests at issue. GM also informed Plaintiff that GM would agree to an informal discovery conference in an attempt to resolve any outstanding discovery disputes, so as to avoid unnecessary court intervention. However, Plaintiff did not respond to this letter. Instead, Plaintiff filed the instant motion to compel on July 12, 2018.”

(Opposition, p. 3:27-4:4.)

Based on the evidence submitted by defendant, it appears that plaintiff has not engaged in a good faith effort to meet and confer before filing the instant motion. Accordingly, the motion is DENIED.

Nonetheless, the Court is willing to meet with counsel in an Informal Discovery Conference to try to resolve these issues prior to any further motions to compel.