Judge: Anne Richardson, Case: 23STCV13424, Date: 2024-02-27 Tentative Ruling

Case Number: 23STCV13424    Hearing Date: February 27, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Eman A. Rushdi sues Defendants FCA US LLC and Does 1 through 10 pursuant to a June 12, 2023 Complaint alleging claims of (1) Violation of Subdivision (d) of Civil Code 1793.2, (2) Violation of Subdivision (b) of Civil Code 1793.2, (3) Violation of Subdivision (a)(3) of Civil Code 1793.2, (4) Breach of Express Warranty, Civil Code Section 1791.2 Subdivision (a); Section 1794, and (5) Breach of Implied Warranty of Merchantability, Civil Code Section 1791.1; Section 1794.

The claims arise from the following allegations. On January 28, 2023, Plaintiff Rushdi purchased and/or leased a 2023 Jeep Wrangler (Vehicle) manufactured and/or distributed by Defendant FCA, pursuant to which FCA provided an express written warranty in which Defendant FCA undertook to preserve or maintain the utility or performance of the Vehicle or to provide compensation if there was a failure in utility or performance for a specified period of time. After Plaintiffs took possession of the Vehicle and during the warranty period, the Vehicle contained or developed defects that substantially impaired the use, safety, and/or value of the Vehicle. During the warranty period, the Vehicle contained or developed defects, including, but not limited to defective body, powertrain, safety, electrical, braking, and noise systems, which FCA was not able to conform to warranty within a reasonable number of attempts despite failing to replace or repurchase the Vehicle.

On November 21, 2023, Plaintiff filed a motion to compel further responses from FCA as to Plaintiff’s Request for Production of Documents (RPDs), Set One, Nos. 16-21. The motion does not seek monetary sanctions.

On February 8, 2024, FCA served supplemental responses—but not production—in relation to RPDs, Set One, Nos. 16-21.

On February 13, 2024, FCA opposed Plaintiff’s motion.

On February 20, 2024, Plaintiff replied to FCA’s opposition. Based on the supplemental production, the reply limits the scope of the relief sought by Plaintiff as relating to RPDs, Set One, Nos. 16-18 and 20-21.

Plaintiff Rushdi’s motion is now before the Court.

Motion to Compel Further Production

Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

Order Compelling Further Production: MOOT.

I. RPDs, Set One, Nos. 16-21

 RPDs, Set One, Nos. 16

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any internal analysis or investigation by YOU or on YOUR behalf regarding the ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such ENGINE DEFECT, any such investigation to design a permanent repair procedure for such ENGINE DEFECT, any such investigation into the failure rates of parts associated with such ENGINE DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

RPDs, Set One, Nos. 17

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any communications YOU have had regarding ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.

RPDs, Set One, Nos. 18

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any decision to issue any notices, letters, campaigns, warranty extensions, technical service bulletins and recalls concerning the ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.

RPDs, Set One, Nos. 19

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to ENGINE DEFECT, in vehicles of the same year, make, and model as the SUBJECT VEHICLE, including but not limited to any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.

RPDs, Set One, Nos. 20

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning failure rates of vehicles of the same year, make, and model as the SUBJECT VEHICLE as a result of ENGINE DEFECT.

RPDs, Set One, Nos. 21

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any fixes for ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.

(Mot., Bedwan Decl., Ex. 3; see Mot., Separate Statement.)

II. Responses to RPDs, Set One, Nos. 16-21

FCA responded to these RPDs with objections and no substantive responses. (Mot., Bedwan Decl., Ex. 4; see Mot., Separate Statement.)

III. Separate Statement

This motion properly attaches a separate statement. (Cal. Rules of Court, rule 3.1345.)

IV. Parties’ Arguments

Plaintiff seeks further production as to RPDs, Set One, Nos. 16-18 and 20-21 on various grounds. These include that the scope of discovery is broad and that a refusal to provide meaningful and substantive responses—as opposed to boilerplate objections, as offered by FCA—evinces a lack of good faith. Plaintiff then argues that the production requests are directly relevant to Plaintiff’s SBA claims in various ways. Specifically, Plaintiff argues that “the documents will establish that Defendant is, and has been, aware of the Defects; that the Defects are ongoing; that Defendant lacks any means of fixing them; and that despite all of this information, Defendant has acted, and continues to act, in bad faith, willfully violating the Act by failing to repurchase Plaintiff’s vehicle.” Plaintiff otherwise argues that courts routinely permits discovery such as the discovery here and cites to various authority in support, likening the facts in this case to the facts in the cited authority. (Mot., p. 9.)

The separate statement explains why the objections stated by FCA are not meritorious. (Mot., Separate Statement, pp. 3-52.)

In opposition, FCA argues that FCA agreed, as of October 11, 2023, to produce responsive documents subject to an ongoing and extensive search that takes time and resources. The opposition also notes that FCA served supplemental responses relating to RPDs, Set One, Nos. 16-21, though the opposition does not state the date on which they were served, nor attach a proof of service or verification for the copy of the responses attached to the opposition as Exhibit F to the Gregg declaration. FCA adds that no remaining documents exist in FCA’s possession that are responsive to RPDs, Set One, Nos. 16-18 and 21, for which reason this motion should be denied. FCA otherwise argues that Plaintiff failed to meet and confer in good faith and that the broad scope of discovery is not proportional to the amount in controversy in the case or relevant/tailored to resolving the disputes before the Court. (Opp’n, pp. 2-7.)

The separate statement responds to the arguments advanced by Plaintiff, noting that supplemental responses have been provided and that no further responsive documents exist for production. (Opp’n, Separate Statement, pp. 2-18.)

In reply, Plaintiff agrees to limit the scope of the motion to RPDs, Set One, Nos. 16-18 and 20-21, based on FCA’s supplemental production. Plaintiff then argues that any documents FCA has promised to produce are not responsive to RPDs, Set One, Nos. 16-18 and 20-21, with Plaintiff needing emails, underlying investigation documents, root cause analyses, reports, warranty claims for vehicles of the same year, make, and model as the Vehicle here, and other related internal documents. Plaintiff cites paragraphs 15-26 and Exhibits 5-13 of the Bedwan declaration to support the meet-and-confer efforts required by the Code. Plaintiff also argues that the supplemental responses by FCA—clarified to have been served on February 8, 2024—are not Code compliant and do not moot this motion because the responses amount to nothing but avoidance of responsibilities under the Code. Plaintiff adds that Defendant failed to repurchase or replace the defective Vehicle and denied liability in its Answer and in its responses to admission requests, for which reason the sought-after discovery is relevant, i.e., the discovery will show that FCA is liable for failing to repurchase the Vehicle under circumstances where the Vehicle was nonconformably defective and was nevertheless not repurchased by FCA. Plaintiff characterizes the supplemental responses as “Code-compliant verbiage … [that] makes it impossible for Plaintiff to glean whether outstanding documents responsive to the at-issue Requests are.” Plaintiff last argues in favor of good cause for discovery here, the scope of the discovery sought (i.e., no overbreadth), and that conclusory arguments of “burden” unsupported by evidence of that burden are not sufficient under established California authority. (Reply, pp. 1-8.)

V. Discussion of the Merits

The Court finds in favor of FCA insofar as the Court determines Plaintiff’s motion is moot.

On February 8, 2024, FCA served supplemental production in response to RPDs, Set One, Nos. 16-21. (Opp’n, Gregg Decl., Ex. F [responses]; Reply, p. 3 [service on February 8, 2024].) The Court notes that no proof of service or verification is attached to the opposition’s copy of FCA’s February 8th supplemental responses. (Opp’n, Gregg Decl., Ex. F.) Because the responses are substantive rather than objections, they need to be verified by a proper FCA agent. (Opp’n, Gregg Decl., Ex. F [no verification attached to supplemental responses, which contain statements of compliance (RPDs, Nos. 19-20) or substantive statements indicating that no responsive documents exist in relation to the RPDs (RPDs, Nos. 16-18, 21)]; cf. Code Civ. Proc., § 2031.250, subd. (a) [“The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections”].) It could be that such verification exists given that the reply does not object to the February 8th supplemental responses on lack of verification grounds, instead challenging those responses as nothing but avoidance of responsibilities under the Code. (Reply, p. 3.)

For the purposes of this discussion—and given FCA’s ability to remedy this defect should it actually exist—the Court assumes the responses are verified.

Moreover, because Plaintiff Rushdi no longer seeks relief as to RPDs, Set One, No. 19 (Reply, p. 1), the remainder of this discussion is confined to RPDs, Set One, Nos. 16-18 and 20-21, and Plaintiff’s motion is MOOT as to RPDs, Set One, No. 19.

Moving to the merits, the Court discusses whether FCA’s supplemental responses to RPDs, Set One, Nos. 16-21 mooted Plaintiff’s motion in relation to RPDs, Set One, Nos. 16-18 and 20-21. The Court thus determines that the responses were Code compliant, assuming verification was satisfied here, as discussed above.

The Court’s review of FCA’s February 8th supplemental responses to RPDs, Set One, Nos. 16-18 and 20-21 shows that they are responsive to the production requests at issue and thus MOOTED Plaintiff’s November 21, 2023 motion as to the remaining RPDs at issue: RPDs, Set One, Nos. 16-18 and 20-21.

As to RPDs, Set One, No. 20, FCA offers a statement of compliance, contrasting the initial objection-only response to this RPD. (Compare Opp’n, Gregg Decl., Ex. F, p. 9, with Mot., Bedwan Decl., Ex. 4, pp. 17-18.) While the production promised in FCA’s February 8th supplemental response to this RPD is conditioned on the parties’ entry into a protective order, here, the parties signed, and the Court entered, a protective order on February 20, 2024. (Opp’n, Gregg Decl., Ex. F, p. 9; 2/20/24 Protective Order.) The Court is thus satisfied that a sufficient response has been given to RPDs, Set One, No. 20, and that Plaintiff may pursue further production, as necessary, pursuant to Code of Civil Procedure sections 2031.310 or 2031.320, and the parties’ protective order.

As to RPDs, Set One, Nos. 16-18 and 21, FCA’s February 8th supplemental responses to these RPDs represent that after a diligent search, no responsive documents could be located and thus do not exist or have never existed. (Opp’n, Gregg Decl., Ex. F.) While the opposition argues that these supplemental responses do not satisfy Code of Civil Procedure section 2031.230 by failing to identify the names and addresses of natural persons or organizations known or believed to have possession, custody, or control of documents responsive to RPDs, Set One, Nos. 16-18 and 21 (Reply, p. 3), if no responsive documents exist or have been known to exist, then no persons or organizations exist in relation to those non-existent documents.

To the extent that Plaintiff argues that FCA’s responses to RPDs, Set One, Nos. 16-18 and 21 are evasive (Reply, p. 3), this is unclear to the Court. The parties could meet and confer relating to FCA’s interpretation of RPDs, Set One, Nos. 16-18 and 21 to determine why FCA has not been able to locate responsive documents. Plaintiff may thereafter file a motion to compel further production articulating the grounds pursuant to which a court could conclude that FCA has been withholding responsive documents. (See Code Civ. Proc., § 2031.310.)

At this moment, however, the Court is satisfied that the February 8, 2024 supplemental responses mooted Plaintiff’s November 21, 2023 motion now before the Court as to RPDs, Set One, Nos. 16-18 and 21.

Plaintiff’s motion is thus MOOT. 

Conclusion

Plaintiff Eman A. Rushdi’s Motion to Compel Further Responses to Requests for Production of Documents, Set One, Nos. 16-21, is MOOT.