Judge: David B. Gelfound, Case: 24CHCV00132, Date: 2024-10-24 Tentative Ruling

Case Number: 24CHCV00132    Hearing Date: October 24, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

Motion filed: 9/16/23

MOVING PARTY: Plaintiffs Kazzi Angelo-Tupper and Justin Botticelli

RESPONDING PARTY: Defendant FCA US LLC

NOTICE: OK.

RELIEF REQUESTED: An order compelling FCA to produce supplemental responses to Plaintiffs’ first set of Requests for Production, Set One Nos. 7, 10, 16, 18-21, 37, and 39

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

Plaintiffs Kazzi Angelo-Tupper and Justin Botticelli (“Plaintiffs”) filed this Song-Beverly Consumer Warranty Act (“SBA”) lawsuit over alleged defects in their 2022 Jeep Grand Cherokee (the “Subject Vehicle”), which was manufactured by Defendant FCA US LLC (“Defendant” or “FCA”). Plaintiffs allege that they purchased the Subject Vehicle on or about November 23, 2022, receiving an express written warranty by FCA. (Compl. ¶¶ 7, 12.)

On January 16, 2024, Plaintiffs filed their Complaint against Defendants FCA and Does 1 through 50, alleging the following causes of action: (1) Violation of Subdivision (d) of Civil Code Section 1793.2, (2) Violation of Subdivision (b) of Civil Code Section 1793.2, (3) Violation of Subdivision (a)(3) of Civil Code Section 1793.2, (4) Breach of Express Written 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. Subsequently, FCA filed its Answers to the Complaint on February 16, 2024.

On September 16, 2024, Plaintiffs filed the instant Motion to Compel Further Responses to Requests for Production (“RFP”), Set One (the “Motion”).

Subsequently, on October 14, 2024, FCA filed its Opposition, and Plaintiffs replied on October 17, 2024.

ANALYSIS

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that … [a] statement of compliance with the demand is incomplete[;] … [a] representation of inability to comply is inadequate, incomplete, or evasive[; or] … [a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

A.    Procedural Requirements

1.      Timeliness

A motion to compel further responses to requests for production must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., § 2031.310, subd. (c); but see Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 134-136 [suggesting that the 45-day deadline does not apply to (i.e., it does not begin to run with service of) objections-only responses; it only applies to responses that are required to be verified].)

“[T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers[.]” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The 45-day deadline “is ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Ibid.)

Here, FCA served its responses to Plaintiffs' first set of RFP on May 16, 2024. (Gibson Decl. ¶ 19.) Later the parties agreed to extend Plaintiffs’ deadline to file this Motion up to and including September 15, 2024, which is a Sunday, making the deadline September 16, 2024. (Id. ¶ 21.)

Here, the Motion was served and filed on September 16, 2024, meeting the agreed-on deadline.

Therefore, the Court finds the Motion is filed timely.

2.      Meet and Confer

“A motion [to compel further responses to requests for production] shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2033.290, subd. (b)(1).) “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.)

Here, Plaintiffs have satisfied the meet and confer requirement. (Gibson Decl. ¶¶ 23-29.)

3.      Separate Statement

The California Rules of Court rule 3.1345 (a)(3) explicitly states that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: ... (3) To compel further responses to a demand for inspection of documents or tangible things[.]”

Here, Plaintiffs have fulfilled the requirement by concurrently filing a separate statement with the Motion.

B.     Motion to Compel Further Responses to RFP Nos. 7, 10, 16, 18-21, 37, and 39

1.      Mootness

FCA argues that the Motion is moot because it supplemented its responses on October 11, 2024 (Skanes Decl. Ex. “D”), reflecting that it will conduct a diligent search and reasonable inquiry to comply with Plaintiff’s requests in full. (Opp’n. at p. 2.)  

In their Reply, Plaintiffs contend that FCA’s supplemental responses are unverified and were served on the same day as its Opposition. Additionally, Plaintiffs assert that FCA’s unverified supplemental responses still do not specifically addressed RFP Nos. 7, 37 and 39. (Reply at p. 3.)

The Court notes that Plaintiffs correctly point out that unverified responses, in the circumstances, are equivalent to no responses at all, pursuant to Appleton v. Superior Court (1988) 206 Cal.App.3d 633, 636.

Because FCA’s supplemental responses are unverified and they do not address RFP Nos. 7, 37, and 39, part of the issues raised in the Motion, the Court concludes that the Motion is not moot.

2.      Moving Party’s Showing of Good Cause

A motion to compel further responses to requests for production shall “set forth specific facts showing good cause”. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish “good cause,” the moving party must show (1) the items demanded are relevant to the subject matter and (2) specific facts justify the discovery of the requested items (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Code Civ. Proc., § 2031.310, subd. (b)(1); see Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) 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. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Here, Plaintiffs have the burden of showing good cause for the following RFP Nos.

RFP No. 7 seeks, “The Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2021 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame].

RFP No. 10 requests, “A copy of the Workshop Manual specifying diagnosis and repair procedures for vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

RFP No. 16 seeks, “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 POWERTRAIN 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 POWERTRAIN DEFECT, any such investigation to design a permanent repair procedure for such POWERTRAIN DEFECT, any such investigation into the failure rates of parts associated with such POWERTRAIN DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

RFP No. 18 seeks, “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 POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include any such investigation to determine the root cause of the POWERTRAIN DEFECT, any such investigation to design a permanent repair procedure for the POWERTRAIN DEFECT, any such investigation into the failure rates of parts associated with the POWERTRAIN DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

RFP No. 19 requests, “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to POWERTRAIN DEFECT, 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 in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

RFP No. 20 seeks, “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 POWERTRAIN DEFECT.”

RFP No. 21 requests, “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any fixes for POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

RFP No. 37 seeks, “All DOCUMENTS which evidence, describe, refer, or relate to procedures used by YOU for the handling of complaints by consumers regarding vehicles YOU manufactured or distribute.”

RFP No. 39 requests, “All DOCUMENTS issued by YOU or on YOUR behalf which evidence, describe, refer, or relate to policies, procedures, and/or instructions since 2021 that YOUR employees and agents should follow when evaluating a customer request for a refund of the price paid for a vehicle or replacement of a new motor vehicle manufactured or distributed by YOU.”

(Gibson Decl. Ex. “7.”)

Plaintiffs argue that the above-listed RFP Nos., essentially seeking FCA’s internal policy and investigation documents, are directly relevant to Plaintiffs’ claims under the Song-Beverly Act. Specifically, they contend that the warranty policy and procedure manual will shed light on how the repair facility treats and handles any particular repair visit, show the dealership knows what is and is not covered by Defendant’s express warranty and how to submit warranty claims, detail any instructions from Defendant to its dealership regarding Lemon Law related issues, and detail any instructions from Defendant to the dealership regarding how to handle repeat visits for the same complaint. Additionally, Plaintiffs assert that the requested documents are pertinent to the issues related to Defendant’s good faith compliance with the Song-Beverly Act. (See generally Pl.’s Separate Statement.)

Furthermore, Plaintiffs argue that even if the requested documents involve vehicles other than theirs, Defendant is still obligated to produce them if they are relevant to the claims. (Mot. at p. 18.) The Court agrees.

In Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154 (Donlen), the Third District held that the trial court had not erred in denying Ford’s motion in limine to exclude evidence of other customers’ complaints about the same transmission model Ford installed in plaintiff’s truck and other vehicles. (Underlines added.) Similarly, in Jensen v. BMW of North America, LLC (S.D.Cal. 2019) 328 F.R.D. 557, 562-63 (Jensen), the federal district court in San Diego found that, “information regarding whether the same defects were reported to BMW in other cars of the same make, model, and year as [p]laintiff’s subject vehicle could conceivably be relevant to whether BMW acted reasonably in denying [p]laintiff’s warranty claim. A fact finder may find BMW’s knowledge or lack of knowledge about the same defects to be a consideration in deciding whether BMW acted in good faith as to [p]laintiff’s specific case.” (Underlines added.)

Here, the Complaint alleges that the Subject Vehicle contained and developed defects, including defective accelerating system, defective safety system, defective electrical system, defective engine, and defective body system, which Defendant has been unable to service or repair after a reasonable number of opportunities. (Compl. ¶¶ 13, 22.) Additionally, the Complaint asserts that Plaintiffs are entitled to a civil penalty under the statute for FCA’s willful failure to comply with its responsibilities. (Id. ¶ 24.)

Accordingly, the Court finds that the information sought in the above-listed RFP Nos. is relevant to the claims in the Complaint. It particularly notes that RFP Nos. 16, and 18-21 specifically seek information “regarding POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE,” thereby narrowing the scope of discovery to directly relevant information.

Therefore, in alignment with established precedents, including those set in Donlen and Jensen, the Court concludes that good cause exists, and the information sought is relevant and not overbroad.

3.      FCA’s Responses

In its Opposition, FCA confirms that it agreed to comply in full with Plaintiff’s requests, conduct the requested documents searches and in response, produce documents related to other customer concerns, warranty claims data, and failure rate data related to Plaintiffs’ defect definition. (Opp’n. at p. 2.) FCA further acknowledges that it agreed to conduct searches for any TSBs, recalls, Customer Satisfaction Notifications (“CSNs”) and internal investigations that may have been conducted that relate to the allegations in Plaintiffs’ defect definition. (Ibid.) As a result, FCA asserts that no additional documents are responsive to the RFP Nos. remain. (Ibid.)

Given that FCA’s supplemental responses are unverified, the Court will continue to review FCA’s substantive responses and objections asserted in its supplemental responses, with the assumption that FCA will provide a verification.

i)                   RFP Nos. 7, 37, and 39

Plaintiffs argue that FCA’s unverified supplemental responses still have not specifically addressed RFP Nos. 7, 37 and 39. (Reply at p. 3.) Thus, the Court will next proceed to examine FCA’s initial responses to RFP Nos. 7, 37, and 39.

FCA’s response to RFP No. 7 states, in part, “After a diligent search and reasonable inquiry, FCA US will comply in full with this request and produce, subject to a protective order, all responsive documents within its possession, custody or control, namely, a copy of the Warranty Administration Manual, including prior versions to the extent they exist dating from 2017 to the present.”

FCA’s responses to RFP Nos. 37 and 39 claims, in part, “FCA US will comply in full with this request and produce all responsive documents, subject to a protective order, within its possession, custody or control, namely, a copy of the Dealer Policy Manual, a copy of the Warranty Administration Manual, including prior versions to the extent they exist dating from 2017 to the present, a copy of the policies and procedures of its Customer Assistance Center regarding handling of customer complaints and requests for refund or replacement of their vehicle, and a copy of any training materials and as a copy of its organizational charts for its customer relations group.”

The Court finds, to the extent FCA’s statements are interpreted as complying with the particular requests, its responses to RFP Nos. 7, 37 and 39 are in accordance with Code of Civil Procedure section 2031.210, subdivision (a)(1). However, the Court overrules the objections asserted alongside the responses on the grounds of overbreadth, as this does not overcome the Court’s prior findings of good cause by Plaintiffs.

ii)                 RFP No. 10

Furthermore, Plaintiffs argue that FCA’s supplemental response to RFP No. 10 is improper as it instructs Plaintiffs to a pay a small fee to access the requested documents. (Reply at p. 10.)

FCA’s supplemental response to RFP No. 10 states, “FCA US refers Plaintiff to www.TechAuthority.com for a copy of the Workshop Manual for the Subject Vehicle [https://www.techauthority.com/dashboard/products]. Plaintiff may obtain a copy of the Service Manual for the Subject Vehicle, for a fee, as it is equally available to the Plaintiffs in the same manner as it is for FCA US.” (Def.’s Separate Statement at p. 7.)

The Court finds this response improper. Code of Civil Procedure section 2031.010 authorizes any party to obtain discovery and demand inspection and production of documents, including electronically stored information, in the possession, custody, or control of any other party to the action. (Code Civ. Proc., § 2031.010, subd. (a).) Here, FCA does not claim that the Workshop Manual for the Subject Vehicle is not in its possession, custody, or control, nor does it establish that the Workshop Manual is not reasonably accessible because of undue burden or expense. Therefore, FCA shall produce the documents rather than merely setting forth a website link, as an alternative source, to access the document.

iii)               RFP Nos. 19 and 20

Plaintiffs argue that FCA has not completed the search, and no documents have been produced at this time. (Reply at p. 4.)

FCA’s supplemental response to RFP No. 19 states, “FCA US will conduct a diligent search and reasonable inquiry and comply in full with this request and produce, subject to protective order, all responsive documents found relating to customer concerns, including emails between customers and FCA US, based upon the conditions outlined in Plaintiff’s ‘POWERTRAIN DEFECT’ definition, in other vehicles of the same make, model, and model year as the Subject Vehicle. Further, FCA US will conduct a diligent search and reasonable inquiry and produce, subject to protective order, all responsive documents found related to warranty claims and failure rates (c/1000 and MOP/MIS) data for the same make, year, and model of in other vehicles of the same make, model, and model year as the Subject Vehicle, as they relate to Plaintiff’s ‘POWERTRAIN DEFECT’ definition.” (Skanes Decl. Ex. “D.”)

FCA’s supplemental response to RFP No. 20 states, “FCA US will conduct a diligent search and reasonable inquiry and comply in full with this request and produce, subject to protective order, all responsive documents found relating to failure rates (c/1000 and MOP/MIS) data for the same make, year, and model of in other vehicles of the same make, model, and model year as the Subject Vehicle, as they relate to Plaintiff’s ‘POWERTRAIN DEFECT’ definition.” (Skanes Decl. Ex. “D.”)

The Court finds that FCA’s supplemental responses to RFP Nos. 19 and 20 comply with Code of Civil Procedure section 2031.210, subdivision (a)(1).

As for Plaintiffs’ argument, assuming it to be true, that Defendant has failed to complete the search and production in accordance with its statement of compliance, Plaintiffs shall properly move separately for an order compelling compliance, which is distinct than the instant Motion.

iv)               RFP Nos. 16, 18, and 21

Plaintiffs dispute Defendant’s claim that no documents ever existed responsive to the requests, arguing that they have already identified some Technical Service Bulletins (“TSBs”) responsive to the above-listed RFP Nos. (Gibson Decl. ¶¶ 10-14.)

FCA’s responses to RFP Nos. 16, 18, and 21 state, “FCA US has conducted a diligent search and reasonable inquiry and is unable to comply with this request. FCA US conducted a diligent search and reasonable inquiry for any Recalls, Customer Satisfaction Notifications, or internal investigations applicable to the Subject Vehicle, and concerning conditions outlined in Plaintiff’s “POWERTRAIN DEFECT” definition and located none. Therefore, no documents, including emails, exist or have ever existed responsive to this request.” (Skanes Decl. Ex. “D.”)

Here, Plaintiffs’ counsel presents the following TSBs: TSB 09-015-22 “Engine Vibration Noise When Idling in Gear” (issued June 16, 2021), TSB 09-019-23 “Cold Engine Ticking Noise From Exhaust Manifold Area” (issued October 7, 2023), TSB 09-015-24 “Engine Ticking Noise” (issued June 26, 2024), TSB 18-024-24 REV. A “Flash: Powertrain Control Module (PCM) Updates” (issued August 29, 2023), and TSB 18-024-24 “Flash: Powertrain Control Module (PCM) Updates” (issued March 21, 2024). (Gibson Decl. Ex. “2”-“6.”)           

The Court finds that Plaintiffs have presented sufficient evidence to support their claim of inadequate, incomplete, or evasive representation of FCA’s inability to comply. Accordingly, given that the supplemental responses remain unverified, the Court directs the parties to further meet and confer with regard to RFP Nos. 16, 18, and 21.

In sum, the Court GRANTS the Motion on several independent grounds. First, FCA’s supplemental responses remain unverified. Second, FCA’s response to RFP No. 10 is inadequate and improper. Third, FCA’s responses to RFP Nos. 16, 18, and 21 are inadequate and incomplete in light of Plaintiffs’ evidence demonstrating the existence of responsive documents.

CONCLUSION

Plaintiffs’ Motion to Compel Further Responses to Requests for Production, Set One, is GRANTED.

FCA USA, LLC is ordered to provide verified further responses or verification of its supplemental responses dated May 16, 2024, to Responses to Requests for Production, Set One,  Nos. 7, 10, 16, 18-21, 37, and 39 within 20 days.

Plaintiffs and Defendant are ordered to further meet and confer regarding Requests for Production, Set One, Nos. 16, 18, and 21.

Moving party to give notice.