Judge: Curtis A. Kin, Case: 21STCV12151, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV12151    Hearing Date: March 2, 2023    Dept: 72

MOTION TO COMPEL COMPLIANCE WITH COURT’S OCTOBER 11, 2022 DISCOVERY ORDER

Date:               3/2/23 (8:30 AM)                               

Case:              La-Keeya Monique Loman et al. v. American Honda. (21STCV12151)

TENTATIVE RULING:

Plaintiffs La-Keeya Monique Loman and Robert Earl Loman Jr.’s Motion to Compel Compliance with Court’s October 11, 2022 Discovery Order is GRANTED IN PART.

Plaintiffs La-Keeya Monique Loman and Robert Earl Loman Jr. move to compel compliance with the Court’s 10/11/22 discovery order, wherein the Court ordered defendant American Honda Motor Co., Inc. to serve further responses to plaintiffs’ Request for Production of Documents, Set One, Nos. 17, 18, 19, 20, 24, 25, 26, 55, and 56 within fifteen days of the order. (Neubauer Decl. ¶ 3.)  The subject Requests are as follows:

REQUEST FOR PRODUCTION NO. 17: All DOCUMENTS, including electronically stored information and electronic mails, concerning, referring, or relating to any field technical reports from YOUR agents, representatives, or employees to YOU which provide YOU with information relating to repeat repair failures in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 18: All DOCUMENTS, including electronically stored information and electronic mails, concerning any internal analysis or investigation by YOU or on YOUR behalf regarding ELECTRICAL DEFECT(S) in HONDA VEHICLES. [This request shall be interpreted to include any such investigation to determine the root cause of such ELECTRICAL DEFECT(S), any such investigation to design a permanent repair procedure for such ELECTRICAL DEFECT(S), any such investigation into the failure rates of parts associated with such ELECTRICAL DEFECT(S), any cost analysis for implementing proposed repair procedures, any savings analysis not implementing proposed repair procedures, etc.]

REQUEST FOR PRODUCTION NO. 19: All DOCUMENTS, including electronically stored information and electronic mails, concerning any communications YOU have had regarding ELECTRICAL DEFECT(S) in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 20: All DOCUMENTS, including electronically stored information and electronic mails, concerning any communications YOU have had regarding customer concerns relating to ELECTRICAL DEFECT(S) in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 24: All DOCUMENTS, including electronically stored information and electronic mails, concerning failure rates of HONDA VEHICLES as a result of ELECTRICAL DEFECT(S).

REQUEST FOR PRODUCTION NO. 25: All DOCUMENTS, including electronically stored information and electronic mails, concerning any fixes for ELECTRICAL DEFECT(S) in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 26: All Failure Mode and Effects Analysis (“FMEA”) reports (or comparable root cause analyses) concerning ELECTRICAL DEFECT(S) in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 55: All DOCUMENTS, including electronically stored information and electronic mails, regarding any communications between YOU and any government agency or entity (e.g., National Highway Traffic Safety Administration (“NHTSA”)) regarding ELECTRICAL DEFECT(S) in HONDA VEHICLES.

REQUEST FOR PRODUCTION NO. 56: All National Highway Traffic Safety

Administration (“NHTSA”) complaints in YOUR possession that relate to ELECTRICAL DEFECT(S) in HONDA VEHICLES.

With respect to No. 17, which seeks all documents relating to field technical reports about repeat repair failures in Honda vehicles, defendant responded that after a diligent search and reasonable inquiry of field technical reports with specified search terms, it “has no responsive documents.” Plaintiffs contend that defendant should produce documents related to specified service bulletins. However, defendant is entitled to contend that it does not have responsive documents, as long as its response complies with CCP § 2031.230. However, CCP § 2031.230 states that an inability to comply with a document request “shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” Defendant does not indicate the reason why it has no responsive documents. For example, plaintiff is entitled to know whether responsive documents never existed or existed at one time but were later destroyed, lost, misplaced, or stolen. A further response is required for No. 17.

With respect to Nos. 18, 19, 20, 24, and 25, which seek emails and other documents concerning electrical defects in vehicles of the same make, model, and year as the subject vehicle, defendant specified that it would produce Quality Improvement Sheets and/or emails. With respect to emails, defendant indicated that they would be produced once it obtained guidance from the Court with respect to the purported burden of producing the emails and allocation of expenses. The Court notes that defendant’s objections based on burden and expense were deemed untimely in defendant’s motion for protective order, heard on January 31, 2023. The Court also notes that CCP § 2031.220, which governs statements of compliance with document requests, does not require defendant to affirm that it made a diligent search and reasonable inquiry. (Cf. CCP § 2031.230.) In any event, defendant’s responses do not comply with CCP § 2031.220 because they do not indicate whether production will be allowed “in whole.” While CCP § 2031.220 allows a responding party to state that it will comply “in part,” the Court ordered defendant to serve further responses without objection. Because defendant is not allowed to object, defendant must indicate that “all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production,” as required by CCP § 2031.220. Further responses are required for Nos. 18, 19, 20, 24, and 25. 

With respect to Nos. 26, which asks defendant to produce all Failure Mode and Effects reports concerning electrical defects in vehicles of the same make, model, and year as the subject vehicle, the Court ordered defendant to provide a response that complies with CCP § 2031.230, including the reason for inability to comply with the request. According to plaintiff’s separate statement, defendant already indicated that it “has made a diligent search and reasonable inquiry in an effort to comply with this request, has no documents responsive to this request, and no responsive documents have ever existed.” This response complies with CCP § 2031.230 because it indicates why defendant cannot comply with the request. No further response is required for No. 26.

With respect to No. 55, which asks for communications between defendant and the National Highway Traffic Safety Administration (“NHTSA”) regarding electrical defects in vehicles of the same make, model, and year as the subject vehicle, the Court ordered defendant to respond as to vehicles of the same make, model, and year, as “HONDA VEHICLES” is defined in the document requests. According to plaintiff’s separate statement, defendant already indicated that the “requested production will be allowed in whole.” This response complies with CCP § 2031.220 because defendant stated that it would produce all responsive documents. No further response is required for No. 55.

With respect to No. 56, which asks for all NHTSA complaints in defendant’s possession relating to electrical defects in vehicles of the same make, model, and year as the subject vehicle, the Court noted in the 10/11/22 order that defendant agreed to supplement its response. According to plaintiff’s separate statement, defendant had responded, “AHM is unable to comply with this request. AHM has made a diligent search and reasonable inquiry in an effort to comply with this request and has no NHTSA complaints which relate to what Plaintiff has defined as ELECTRICAL DEFECT(S) in 2019 Honda Odyssey Vehicles.” Defendant does not indicate the reason why it has no responsive documents, as required by CCP § 2031.230. A further response is required for No. 56.

To the extent that the discovery at issue requires production of emails, defendant indicates that it will have completed its production of emails by the hearing on the instant motion. (Mtn. at 3:25-26.) As of February 23, 2023, it appears that defendant may not have produced all responsive emails. (Littles Decl. ¶ 8.) To ensure that plaintiff obtains responsive emails and because defendant expected to have completed email production by the hearing on the instant motion, the Court orders defendant to produce all responsive documents.

Plaintiffs requests a deadline of five days for defendant to comply with the 10/11/22 discovery order. Plaintiffs also request a prospective monetary sanction of $500 per day for each day after the five-day deadline that defendant does not fully comply with the discovery order.

The motion is GRANTED IN PART. With respect to Request for Production, Set One, Nos. 17, 18, 19, 20, 24, 25, and 56, defendant American Honda Motor Co., Inc. is ordered to provide Code-compliant, verified further responses, without objection and in accordance with this ruling within five (5) court days. Defendant is also ordered to produce all responsive documents within five (5) court days.

The Court declines to impose prospective sanctions.  Plaintiffs have the option of seeking issue, evidence, or terminating sanctions under CCP §2031.310(i) if defendant fails to comply with this order.