Judge: Curtis A. Kin, Case: 22STCV07158, Date: 2022-09-01 Tentative Ruling

Case Number: 22STCV07158    Hearing Date: September 1, 2022    Dept: 72

MOTION TO COMPEL FURTHER

RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Date:               9/1/22 (8:30 AM)                                             

Case:               Marco Aguiar et al. v. FCA US, LLC et al. (22STCV07158)

TENTATIVE RULING:

Plaintiffs Marco Aguiar and Nancy Vanegas’ Motion to Compel Further Responses to Request for Production of Documents, Set One is GRANTED IN PART.

Plaintiffs Marco Aguiar and Nancy Vanegas move to compel further responses from defendant FCA US LLC to Request for Production of Documents, Set One, Nos. 1, 7, 8, 11, 12, 17, 18, 20, 21, 22, 24, 25, 27, 28, 30, 31, 32, 34, 35, 42, 43, 50, 70-75, and 77-84.

After the motion was filed, defendant served supplemental responses. (Neubauer Decl. ¶ 4 & Ex. A.) Plaintiffs withdrew the motion as to Request No. 12 but contend the responses to the other requests remain insufficient. (Neubauer Decl. ¶ 10.)

The Court finds that plaintiffs demonstrate good cause for the discovery sought. Based on plaintiffs’ allegations regarding engine, transmission, and Powertrain Control Module defects in their vehicle (Compl. ¶¶ 15, 18), plaintiffs are entitled to discovery that is probative of defendant’s knowledge of such defects in 2019 Jeep Compasses (including 2019 Jeep Compasses other than the subject vehicle), as well as defendant’s handling of associated complaints. (Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, 143-44; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973-74, 994.) As plaintiffs contend, willfulness in violating the Song-Beverly Consumer Warranty Act would entitle plaintiffs to a civil penalty not exceeding two times the amount of actual damages. (Compl. ¶ 40 [allegation that defendant’s failure to comply with Song-Beverly was willful]; Civ. Code § 1794(c).)  A defendant is willful for this purpose when the defendant knew “knew of its legal obligations and intentionally declined to follow them.”  (CACI 3244.)  Defendant’s knowledge gained from other 2019 Jeep Compass owners’ complaints may evidence defendant’s knowledge that the problems plaintiffs experienced were not repairable and that defendant therefore had an obligation to replace or repurchase plaintiffs’ vehicle under Civil Code § 1793.2(d)(2).

With respect to Request Nos. 1, 7, 8, 22, 27, 28, 30, 31, 32, 34, 50, 74, and 75, defendant’s responses or supplemental responses are sufficient. Plaintiffs contend that defendant did not provide its search term protocols and gives no indication that it searched for emails. However, defendant states that it will comply in full. This is all that CCP § 2031.220 requires. (CCP § 2031.220 [“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and 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”].) Insofar as plaintiffs later discover that documents encompassed within such requests were withheld, plaintiffs may seek appropriate relief at that time, including, for example, jury instructions regarding willful suppression of evidence. To the extent that defendant asserted objections, defendant is entitled to assert objections so that it does not waive them. (See CCP § 2031.300(a).) Defendant did not indicate that it withheld any requested documents based on its objections.

With respect to Request Nos. 11, 17, 18, 20, 21, 24, 25, 35, and 70-73, defendant’s supplemental responses state that it conducted a diligent search and reasonable inquiry and determined that responsive documents have never existed. This is all that CCP § 2031.230 requires. (CCP § 2031.230 [“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement 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”].) Insofar as plaintiffs later discover that documents encompassed within such requests were unreasonably withheld and/or that a diligent search and reasonable inquiry were not made, plaintiff may seek appropriate relief at that time.

Request No. 42 concerning a document retention policy does not appear to be reasonably calculated to lead to admissible evidence.  The request for a document retention policy is not tailored to plaintiffs’ claims under the Song-Beverly Consumer Warranty Act, but applies to all electronic data and communications. Even if the request were so tailored, plaintiffs do not sufficiently show how this policy would be probative of defendant’s knowledge of the alleged defects in the subject vehicle. Plaintiffs appear to be asking for this policy to ascertain whether defendant is withholding documents from them. Without reason to suspect spoliation of evidence, such a request for a document retention policy is premature. 

As for Request No. 43, which asks for “[a]ny and all audio or video tape recordings involving any discussions concerning the SUBJECT VEHICLE,” this request is overbroad. As phrased, it is not tailored to claims under the Song-Beverly Consumer Warranty Act, but includes recordings not pertaining to any defects alleged in the Complaint. The Court is under no obligation to redraft the document request. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 851.)

With respect to Request No. 77-84, which asks for emails relating to “STALLING DEFECTS” and “TRANSMISSION DEFECTS” in “JEEP VEHICLES,” as well as emails regarding the specified Technical Service Bulletins (“TSB”) and Diagnostic Trouble Codes (“DTC”), defendant’s objections are without merit. The capitalized terms are appropriately defined in the discovery. (Neubauer Decl. ¶ 26 & Ex. 11 at 3.) Of particular importance, “JEEP VEHICLES” is limited to vehicles of the same make, model, and year as the subject vehicle – which serves as a reasonable limitation of time. Even though the discovery is not geographically limited, documents and information about vehicles that are the same year, make, and model as the subject vehicle are probative, considering that all 2019 Jeep Compasses could be manufactured based on same specifications. (Neubauer Decl. ¶ 26 & Ex. 11 at 3.) With respect to Request Nos. 79-84, plaintiff identified TSB 21-028-19, TSB 18-035-19, and DTC P0919 as the subject of the requests. The requests are appropriately tailored.

The motion is GRANTED IN PART. The motion is DENIED as MOOT as to Request for Production, Set One, Nos. 1, 7, 8, 11, 17, 18, 20-22, 24, 25, 27, 28, 30-32, 34, 35, 50, and 70-75. The motion is DENIED as to Request for Production, Set One, Nos. 42 and 43. The motion is GRANTED as to Request for Production, Set One, Nos. 77-84. Within fifteen (15) days hereof, defendant FCA US LLC is ordered to serve a further verified response, without objection, to Request for Production, Set One, Nos. 77-84 and serve responsive documents to these requests, as well as other requests to which plaintiff agreed to fully comply, including, but not limited to, Request No. 75.   

To the extent defendant contends the requested discovery contains trade secrets, the party asserting trade-secret objections has the burden to establish their existence and operation. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1390.) Defendant makes no attempt to justify why production of the requested documents should be subject to the any protective order. Production in response to Request for Production, Set One, shall not be subject to any protective order.

Plaintiff’s request for sanctions is DENIED. Plaintiff did not set identify any party or attorney or the type of sanction sought in the notice of motion, as required by CCP § 2023.040. (CCP § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought”].)