Judge Elaine Lu, Case 22STCV02240 2023-01-17 Tentative Ruling

On January 19, 2022, Plaintiff Julio Chavez (“Plaintiff”) filed the instant lemon law action against Defendant Nissan North America, Inc. (“Defendant”). The complaint asserts four causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act -Breach of Implied Warranty, (3) Violation of the Song-Beverly Act Section 1793.2, and (4) Violation of the Song-Beverly Act section 1793.22 – Tanner Consumer Protection Act.

On May 27, 2022, Plaintiff filed the instant motion to compel Defendant’s further response to Request for Production of Documents, Set One (“RPDs”). On January 3, 2023, Defendant filed an opposition. No reply has been filed.

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) 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 any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Plaintiff seeks to compel Defendant’s further response to RPDs no. 13-16, 34 and 35.

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

On March 11, 2022, Plaintiff served the RPDs at issue on Defendant. (Yashar Decl. ¶ 4, Exh. 1.) On April 11, 2022, Defendant served its response to the RPDs at issue by electronic service. (Yashar Decl. ¶ 6, Exh. B.) Thus, Plaintiff had until May 30, 2022 to timely file the instant motion.^{^[1]} Accordingly, the instant motion filed on May 27, 2022 is timely.

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “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.” (CCP § 2016.040.) “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Here, Plaintiff’s Counsel sent a meet and confer letter to Defendant regarding all written discovery responses. (Yashar Decl. ¶ 7, Exh. 3.) While the letter did discuss Defendant’s response to RPDs no. 13-16, there was no discussion or attempt to meet and confer as to RPDs no. 34 and 35. (Yashar Decl. ¶ 7, Exh. 3.) On May 11, 2022, Defense Counsel responded, agreeing to extend the deadline for Plaintiff to move to compel further and requesting to telephonically meet and confer. (Yashar Decl. ¶ 8, Exh. 3.) However, Plaintiff did not respond.

Plaintiff’s meet and confer efforts were insufficient. Defendant’s responses at issue do not involve boilerplate objections but rather note confusion as to what Plaintiff is requesting as discussed in detail below. Moreover, upon being sent a meet and confer letter, Defense Counsel immediately responded agreeing to extend the time to file the instant motion to compel further and requesting to telephonically meet and confer. These circumstances indicate that Plaintiff’s letter alone was an insufficient attempt to meet and confer. Moreover, given Defendant’s response to the requests and request to further meet and confer, it does appear likely that further meet and confer efforts may have been useful and may have resolved the instant motion.

As Plaintiff made no effort whatsoever as to RPDs no. 34 and 35, Plaintiff’s motion to compel these responses is DENIED for lack of meet and confer. As to RPDs No. 13-16, Plaintiff did make some effort (though paltry) to meet and confer. Thus, the Court will consider the merits of Plaintiff’s motion.

“All DOCUMENTS IDENTIFYTNG repurchases made by YOU of the 2020 Nissan Sentra vehicles and allegedly containing any of the conditions, defects, or nonconformities for which Plaintiffs presented the SUBJECT VEHICLE to YOU for repair. (For purposes of this request, the term ‘IDENTIFYING’ seeks documents establishing the name of the complaining PERSON, the complaints made by such PERSON(S), the names of any lawyers involved as well as case names, court numbers, and locations and whether such repurchase was voluntary or pursuant to a court order.)” (RPD No. 13.)

“All DOCUMENTS evidencing, relating, or referring to complaints by owners of the 2020 Nissan Sentra, vehicle regarding any of the conditions , defects, or nonconformities for which Plaintiffs presented the SUBJECT VEHICLE to YOU or YOUR authorized repair facility for repair.” (RPD No. 14.)

“All surveys, reports, summaries, or other DOCUMENTS in which owners of the 2020 Nissan Sentra, vehicle have reported to YOU problems with any of the conditions, defects, or nonconformities for which Plaintiffs presented the SUBJECT VEHICLE to YOU or YOUR authorized repair facility for repair. (For example, YOU survey YOUR new car buyers. If any of the survey responses refer to the above- listed conditions, defects, or nonconformities, Plaintiffs request these DOCUMENTS be produced.)” (RPD No. 15.)

“All DOCUMENTS which evidence, describe, relate , or refer to the numbers of owners of the 2020 Nissan Sentra, vehicle who have complained of any of the conditions, defects, or nonconformities for which Plaintiffs presented the SUBJECT VEHICLE to YOU or YOUR authorized repair facility for repair.” (RPD No. 16.)

“[Defendant] objects generally the word nonconformities because it is defined in of the Complaint as serious defects and nonconformities making its use vague and overly broad. However, this is a high usage vehicle that plaintiff drove in excess of 26k miles in 10 months. In addition, engine repair delays were encountered due to back ordered parts (exhaust manifold).

Therefore, as it relates to the SUBJECT VEHICLE, after a diligent search and reasonable inquiry, [Defendant] will comply in whole with this request and produce all documents within its possession, custody, or control, which includes [Defendant’s] response to Request for Documents, Set No. 1, Request No. 1 (D) (ROS), Request 4 No. 1(E)(warranty claims), and Request No. 1 (H)(Consumer Affairs file).

Beyond that pursuant to Code of Civil Procedure §2031.210(a)(2), [Defendant] lacks the ability to comply with the demand for inspection because the request is not compliant with Code of Civil Procedure §2031.030 (c)(1) and does not provide Nissan with sufficient information to identify the documents or category of documents being sought and is not reasonably calculated to lead to the discovery of admissible evidence, nor proportional to the proof issues in this case and constitutes an invasion of privacy for [Defendant]’s customers. [Defendant] can neither state that it is complying in whole, in part, or lodge applicable objections in the absence of a specific description of the materials [Defendant] is being asked to produce.

[Defendant] further objects to the extent that Plaintiff's request seeks to expand [Defendant’s] discovery obligations beyond those required by Code of Civil Procedure §2016.010, et seq.” (Response to RPDs No. 13-16.)

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection. (CCP § 2031.210.) A statement that the party will comply must state that the Request for Production (“RPD”) “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.” (CCP § 2031.220, [italics added].)

Here, the response states both that Defendant will both comply in whole and that Defendant lacks the ability to comply. These are contradictory, mutually exclusive responses. Defendant cannot claim to comply in whole if Defendant is simultaneously asserting that it cannot comply in whole. Rather, Defendant’s response was required to state that Defendant would comply in part and then include the representation that as to the balance, Defendant lacked the ability to comply in full.

“[A]ny party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

Under Song-Beverly, “[i]f the buyer establishes that the failure to comply was willful,” the buyer may be entitled to receive a civil penalty, up to two times the amount of actual damages. (Civ. Code § 1794(c).) A defendant that did not replace or refund a vehicle under a “good faith and reasonable belief that the facts imposing the statutory obligation were not present” is not willful. (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051.) Nor does willful require a showing of malice or wrongdoing towards the other party. (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 894.) Rather, willful “amounts to nothing more than this: that the defendant knows what it is doing and intends to do what it is doing.” (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 759.) “Whether a manufacturer willfully violated its obligation to repair the car or refund the purchase price is a factual question for the jury[.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104.)

Accordingly, “information regarding whether the same defects were reported to [Defendant] in other cars of the same make, model, and year as Plaintiff's subject vehicle could conceivably be relevant to whether [Defendant] acted reasonably in denying Plaintiff's warranty claim. A fact finder may find [Defendant]'s knowledge or lack of knowledge about the same defects to be a consideration in deciding whether [Defendant] acted in good faith as to Plaintiff's specific case.” (Jensen v. BMW of North America, LLC (S.D. Cal. 2019) 328 F.R.D. 557, 562–563; see also Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555 [“Evidence of prior accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote.”].

Here, the RPDs seek information about the same defects in vehicles of the same make, year, and model as Plaintiff’s vehicle. Thus, the evidence sought is not inherently beyond the scope of discovery. However, in the instant case the request is somewhat unclear and overbroad.

Pursuant to Code of Civil Procedure section 2031.030(c)(1), “Each demand … shall … [¶] Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.” (Id.) When a request is overbroad, partial limitations on discovery may be warranted versus an outright denial. (See Borse v. Superior Court (1970) 7 Cal.App.3d 286, 289.)

Here, the RPDs at issue do not specify the specific nonconformities at issue which Plaintiff’s vehicle suffered. The complaint vaguely alleges that “[t]he vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities.” (Complaint ¶ 9.) There is no indication of what Plaintiff alleges the specific nonconformities to be. Similarly, the repair orders for the vehicle indicate an issue with a recall for an inner tie rode. Defendant has already produced a Nissan Technical Bulletin for this. (Thomas Decl. ¶ 5.) In the meet and confer letter, “[f]or requests number 13-16, the Plaintiff agrees to the search terms such as, vehicle making a noise while going over bumps, air conditioner making a rattling noise, and check engine light turning on to the right for the same year, make and model of the vehicle in California.” (Yashar Decl. ¶ 7, Exh. 3.) However, these do not appear to be the issues raised in the repair orders. The three repair orders for Plaintiff’s vehicle show the inner tie rode recall and squeaking sounds driving over bumps, (Thomas Decl. ¶ 2, Exh. B), loss of power, ticking noise, and inability to accelerate, (Thomas Decl. ¶ 3, Exh. C), and issues with the A/C not cooling, (Thomas Decl. ¶ 4, Exh. D). As to A/C noise, the repair history is unclear as to whether there was any noise related to the A/C but the repair history does note a ticking noise. However, the repair orders do not reflect any issue with the check engine light turning to the right. To the extent Plaintiff is now contending that the defect is merely the check engine light turning on, Plaintiff fails to clearly allege this defect in the Complaint, and this search term would be too broad because the check engine light may turn on for a multitude of reasons unrelated to those experienced by Plaintiff. Thus, any claim for the check engine light turning on should be coupled with a more specific issue – or lack of other issue.

Accordingly, the Court grants in part Plaintiff’s motion to compel further responses as to RPDs no. 13-16 with search terms such as, vehicle making a noise while going over bumps, air conditioner making a rattling noise for the same year, make and model of the vehicle in California.

Plaintiff requests sanctions against Defendant and Defense Counsel for $250.00 to partially compensate Plaintiff for bringing the instant motion.

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2031.300(c), [italics added].) Further, it is an abuse of discovery to make an evasive response or make unsubstantiated objections to discovery. (CCP § 2023.010(e)-(f).)

Here, Plaintiff failed to sufficiently meet and confer. Further, the mixed result makes the imposition of sanctions unjust under the circumstances. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Based on the foregoing, Plaintiff Julio Chavez’s motion to compel further responses to Request for Production, Set One from Defendant Nissan North America, Inc. is GRANTED as to requests 13-16 but otherwise DENIED.

Defendant Nissan North America is to provide further code compliant responses to requests 13-16 with search terms such as, vehicle making a noise while going over bumps, air conditioner making a rattling noise for the same year, make and model of the vehicle in California without objection within twenty (20) days of notice of this order.

[1] May 28, 2022 is exactly 47 days from service of the responses to the RPDs – as it was served electronically – was a Saturday– and thus a court holiday, extending the deadline to file the instant motion to Monday May 30, 2022. (CCP §§ 12-12(c).)

Superior Court of California

County of Los Angeles

Department 26