Judge: Elaine Lu, Case: 22STCV25933, Date: 2023-10-03 Tentative Ruling

Case Number: 22STCV25933    Hearing Date: October 3, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On August 11, 2022, Plaintiff Nestor Sanchez (“Plaintiff”) filed the instant action against Defendant Toyota Motor Sales U.S.A., Inc. (“Defendant”) and DCH California Motors, Inc. arising from the purchase of a 2017 Toyota 4Runner (“Subject Vehicle”).[1]  The Complaint asserts two causes of action for (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Act and (2) Breach of Express Warranty under the Song-Beverly Act.

            On January 30, 2023, Plaintiff filed the instant motions to compel Defendant’s further responses to Form Interrogatories, Set One (“FROGs”) and Request for Production of Documents, Set One (“RPDs”).  On September 19, 2023, Defendant filed its oppositions.  On September 26, 2023, Plaintiff filed his respective replies.

Legal Standard

Form Interrogatories

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing.  Otherwise, the propounding party waives any right to compel a further response.  (CCP § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration.  (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories.  (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

Requests for Production of Documents

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:

(1) A statement of compliance with the demand is incomplete.

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

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with both of the following:

(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.

Code Complaint Response

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.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)

Discussion

            Plaintiff seeks to compel Defendant’s further response to FROG No. 12.1 and RPDs No. 9, 13-17, 37-48.

Meet and Confer

            A motion to compel further responses to a written discovery request “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP §§ 2030.300(b)(1), 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, on October 4, 2022, Plaintiff served Defendant the RPDs and FROG at issue.  (Galviz RPD Decl. ¶ 4, Exh. 1; Galviz FROG Decl. ¶ 4, Exh. 1.)  On November 3, 2022, Defendant served verified responses to the RPDs and FROG at issue.  (Galviz RPD Decl. ¶¶ 5-6, Exhs. 2-3; Galviz FROG Decl. ¶ 5, Exhs. 2-3.) 

            On November 18, 2023, Plaintiff sent a meet-and-confer letter claiming that the responses to various discovery– including the FROG and RPDs at issue – were insufficient and demanding further supplemental responses within seven days.  (Galviz RPD Decl. ¶ 7, Exh. 4; Galviz FROG Decl. ¶ 6, Exh. 4.)  On December 5, and 9, 2022, Plaintiff sent follow up emails demanding further responses.  (Galviz RPD Decl. ¶ 8, Exh. 5; Galviz FROG Decl. ¶ 7, Exh. 5.)  On December 20, 2022, the parties telephonically met and conferred and agreed to extend the deadline to compel to January 30, 2023.  (Galviz RPD Decl. ¶¶ 9-10, Exh. 6; Galviz FROG Decl. ¶¶ 8-9, Exh. 6.)  On January 10, 2023, Defendant provided a written response to the meet-and-confer letter agreeing to supplement some responses and provide some additional documents.  (Galviz RPD Decl. ¶ 11, Exh. 7; Galviz FROG Decl. ¶ 10, Exh. 7; Yasuzawa Decl. ¶ 10, Exh. E.)  On January 17, 2023, the parties again agreed to telephonically meet and confer.  (Galviz RPD Decl. ¶ 12; Galviz FROG Decl. ¶ 11; Yasuzawa Decl. ¶ 11.)  During this January 17, 2023 meet and confer, Defendant “agreed to produce records relating to other vehicles of the same year, make, and model, provided that Plaintiff’s Counsel narrow the search terms and parameters.”  (Yasuzawa Decl. ¶ 11.)  However, Plaintiff’s Counsel did not provide any proposed search terms until January 27, 2023.  (Galviz RPD Decl. ¶ 14; Yasuzawa Decl. ¶ 12.)  Unaware that Plaintiff filed the instant motions, Defense Counsel responded to the January 27, 2023 proposed search terms with Defendant’s own proposed search terms.  (Yasuzawa Decl. ¶ 14.)  On September 19, 2023, Defendant provided supplemental responses to RPDs No. 9 and 17. (Yasuzawa Decl. ¶ 17, Exh. G.)

            The initial meet-and-confer letter is plainly insufficient.  To sufficiently meet and confer, Plaintiff was required to make a genuine effort to resolve the discovery dispute.  A letter demanding a response within a week does not suffice.  A meet and confer letter should – at the very least – invite further discussion as to meet and confer regarding the response.  A demand for further response does not invite any further response and thus is not a good faith attempt to meet and confer.  However, here the parties did telephonically meet and confer and appear to have resolved some issues.  Moreover, it does appear that further meet and confer efforts would have been likely fruitful given the parties discussions regarding proposed search terms.  Accordingly, the Court finds that in light of these factors, the meet and confer efforts were insufficient.  While the Court will consider the merits of the instant motion, future failure to adequately meet and confer may result in denial of the respective motion.

FROG No. 12.1

            “State the name, ADDRESS, and telephone number of each individual:

(a)   who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b)   who made any statement at the scene of the INCIDENT;

(c)   who heard any statements made about the INCIDENT by any individual at the scene;

(d)   and who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).” (FROG No. 12.1.)

            “Subject to the below objections, [Defendant] is informed and believes that the following individuals may have witnessed, made a statement or heard a statement regarding Plaintiff’s complaints with the subject vehicle:

            Plaintiff, NESTOR SANCHEZ and driver ‘Javier Lopez’; DCH Toyota of Torrance service personnel, Christopher Hunter, 2955 Pacific Coast Highway, Torrance, CA 90505. (310) 325-7602; Toyota of Downtown LA service personnel, Erik Orellana, Abraham Alvarado, Alex Kang, 1901 S. Figueroa Street, Los Angeles, CA 90007. (213) 986-2011.

            In addition, pursuant to Code of Civil Procedure, Section 2030.230, [Defendant] identifies the Service Records in [Defendant’s] possession produced in response to Plaintiff’s Requests for Production, Set One, as though fully set forth herein.

            This interrogatory is objected to on the grounds that it is vague, ambiguous and unintelligible as to the term ‘INCIDENT.’ In addition, the interrogatory is overbroad, burdensome and oppressive. Further, the interrogatory violates the attorney-client, work product and/or consulting expert privileges. The interrogatory constitutes an unreasonable invasion of privacy.”  (Response to FROG No. 12.1.)

            There is Nothing Further to Compel

            As noted in the response above, Defendant objects to the request in part based on the grounds that it vague, ambiguous and unintelligible as to the term “INCIDENT.”  As set forth in the request and in light of the context of the instant action, the Court agrees that the term “INCIDENT” is somewhat vague.

            Pursuant to the propounded FROGs, Plaintiff defined the term “INCIDENT” to “includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.”  (Galaviz Decl. ¶ 4, Exh. 1.)  Thus, the term “INCIDENT” relies on the sufficiency of the complaint.  However, the only facts alleged are that on September 13, 2021 Plaintiff purchased the Subject Vehicle, (Complaint ¶ 5), the Subject Vehicle came with an express warranty, (Complaint ¶¶ 7-8), Plaintiff brought the Subject Vehicle to an authorized service agent at least three times to address non-conformities effecting “(a) the wheel alignment causing the Vehicle to drift to the left; (b) the left tire rubbing against the fender; and (c) the front fender detaching[,]” (Complaint ¶¶ 10-11), and that Defendant failed to repair the vehicle to the applicable warranties, (Complaint ¶ 12).  Given these somewhat vague allegations it is somewhat ambiguous as to what Plaintiff intends specifically the term “INCIDENT” to mean for purposes of identifying witness.  Thus, the objection based on ambiguity is proper. 

            As the Court of Appeal noted in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, “where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”  (Id. at p.783.)  Here, the response does so.  Defendant identified that the term “INCIDENT” for the instant action was vague as the complaint is vague and then clarified that it believes that the term incident – for purposes of the instant FROG – was Plaintiff’s complaints about the Subject Vehicle and identified witnesses to said complaints. 

            Similarly, Defendant’s reference to the Service Records is proper.  As noted by the Court of Appeal in Deyo, “[w]hen in order to answer an interrogatory, it is necessary to make a compilation, abstract, audit, or summary of business records of a party, and such compilation, abstract, audit, or summary does not exist or is not under the control of the party, it is a sufficient answer to so state and to specify the records from which the answer may be derived or ascertained and to afford the other party reasonable opportunity to examine, audit, or inspect such records and to make copies thereof, abstracts, or summaries therefrom.”  (Id. at p.784.)  Here, Defendant clearly specifies that the relevant documents are the produced Service Records for the Subject Vehicle that would identify any further witnesses.

            Given that Defendant’s response is full and complete, there is no basis for the instant motion.  In fact, it is unclear why Plaintiff brought the instant motion.  The motion to compel further response to the FROG is vague and incorrectly claims that “Defendant Toyota refuses to identify all of its authorized technicians who attempted repairs on the Subject Vehicle.”  (FROG Motion at p.3:23-24.)  Defendant has in fact identified the technicians as noted in the response.  Thus, the instant motion to compel further responses to the FROG appears to be without merit.  Accordingly, Plaintiff’s motion to compel Defendant’s further response to FROG No. 12.1 is DENIED.

Supplemental Responses to RPDs No. 9, 17

            Here, as noted above, Defendant has provided supplemental responses to RPDs No. 9 and 17.  (Yasuzawa Decl. ¶ 17, Exh. G.)  Pursuant to Code of Civil Procedure § 2031.310 “[o]n 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” [.]  (Id., [italics added].)  Here, as Defendant has provided a further response, there is nothing further to compel from the original response as to RPDs No. 9 and 17.

RPDs No. 13, 15-16

            All statements taken by YOU OR ANYONE ON YOUR BEHALF from any person with respect to the SUBJECT VEHICLE.”  (RPD No. 13.)

            “Subject to the below objections, [Defendant] is not aware of any written or recorded statements which may have been prepared other than those contained in the Service Records in its possession as set forth in Exhibit ‘A.’

            This request is objected to on the grounds that it is overbroad and vague and seeks documents irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. In addition, the request violates the attorney-client, attorney work product and/or consulting expert privileges. Further, the request seeks documents in the possession of third parties.”  (Response to RPD No. 13.)

            “All DOCUMENTS evidencing any COMMUNICATION between Plaintiff and Defendants.”  (RPD No. 15.)

            “Subject to the below objections, after a diligent search and inquiry, [Defendant] states that it is unaware of any COMMUNICATION between it and Plaintiff.

            This request is objected to on the grounds that it is overbroad and vague as to “all documents evidencing,” and seeks documents irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. In addition, the request violates the attorney-client, attorney work product and/or consulting expert privileges. Further, the request seeks documents that are equally available to Plaintiff.”  (Response to RPD No. 15.)

            “All DOCUMENTS evidencing any COMMUNICATION between Defendant and any independent dealer, service facility, and/or any other person or entity providing assistance to Defendant regarding the SUBJECT VEHICLE.”  (RPD No. 16.)

            “Subject to the below objections, TMS will comply with this request in full by producing the Warranty Claim History, Diagnostic Report, DTC History, and the Sales and Service Records in its possession, as set forth in Exhibit ‘A.’

            This request is objected to on the grounds that it is overbroad and vague as to ‘all documents evidencing,’ and seeks documents irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. In addition, the request violates the attorney-client, attorney work product and/or consulting expert privileges. Further, the request seeks documents in the possession of third parties.”  (Response to RPD No. 16.) 

            There is No Further Response to Compel

            As noted above, a code-compliant response to an RPD 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 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.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)

            Here, Defendant’s response to RPDs No. 13, 15, and 16 comply with these requirements.  Though each of these responses include objections, the substantive responses clearly indicate that Defendant is fully responding to the request despite the objections.  As to RPD No. 13, Defendant clearly identifies the Service Records as the responsive documents and specifies that there are no other written or recorded statements responsive to the request.  The response to RPD No. 15 specifies that no responsive documents exist because Plaintiff never communicated with Defendant.  Finally, as to RPD No. 16, Defendant clarifies that, despite the objections, it is producing all responsive documents. 

            Accordingly, as to RPD No. 13, 15, and 16 there are no further responses to compel. 

RPD No. 14

            “All DOCUMENTS evidencing any COMMUNICATION regarding the SUBJECT VEHICLE.”  (RPD No. 14.)

            “Subject to the below objections, [Defendant] will comply with this request in part by producing the Warranty Claim History, Recall 22TC01, and Service Records in its possession, as set forth in Exhibit ‘A.’ [Defendant] is not aware of any communication between Plaintiff and TMS regarding the subject vehicle.

            This request is objected to on the grounds that it is overbroad and vague as to ‘all documents evidencing,’ and seeks documents irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. In addition, the request violates the attorney-client, attorney work product and/or consulting expert privileges. Further, the request seeks documents that are equally available to plaintiff and/or in the possession of third parties.”  (Response to RPD No. 14 [italics added].)

            The Response is Not Code Compliant

            Here, unlike the responses to RPD No. 13, 15, and 16, Defendant specifies that it is only providing a partial response.  Moreover, Defendant asserts various objections but fails to specify what specific documents are being withheld – if any.  (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].) 

            Overbroad Objection

            As to the overbreadth objection, “any 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].) 

            Here, communications regarding the Subject Vehicle are clearly relevant.  However, the Court does agree that the request is somewhat temporally overbroad as it would include every document filed or created for the instant action and other communications post-initiation of the instant action.  Thus, as this request is overbroad, it is temporally limited to communications between September 13, 2021 – the date of purchase – and August 11, 2022, when the instant action was filed as any alleged failure to comply with the statutory requirements under the Song-Beverly Act had to have occurred during this time period. 

            Privilege Claim

            “In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.”  (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.)  “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.”  (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.)  “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.”  (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

            Here, even with the temporal limitation of communications between when Plaintiff purchased the Subject Vehicle and when the instant action was filed, RPD 14 could involve privileged communications – such as documents protected by attorney-client privilege.  However, Defendant has failed to provide any privilege log identifying what if any responsive documents Defendant is withholding on the basis of privilege. 

            Accordingly, a further response is required.  If Defendant is withholding any documents on the basis of privilege, Defendant must serve a privilege log.

RPDs No. 37-48

            “All DOCUMENTS evidencing, relating, or referring to complaints by California owners of the same year, make, model as the SUBJECT VEHICLE regarding issues with the left front tire rubbing as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 37.)

            “All surveys, reports, summaries, or other DOCUMENTS in which California owners of the same year, make, and model as the SUBJECT VEHICLE have reported to YOU problems with the left front tire rubbing as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 38.)

            “All DOCUMENTS which evidence, describe, relate or refer to the numbers of California owners of the same year, make, and model as the SUBJECT VEHICLE who have complained of issues with the left front tire rubbing as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 39.)

            “All DOCUMENTS evidencing, relating, or referring to complaints by California owners of the same year, make, model as the SUBJECT VEHICLE regarding issues with the rear mud flaps/guards as identified on Repair Order No. 997786 on September 27, 2021 and Repair Order No. 999378 on October 11, 2021 at DCH Toyota of Torrance.”  (RPD No. 40.)

            “All surveys, reports, summaries, or other DOCUMENTS in which California owners of the same year, make, and model as the SUBJECT VEHICLE have reported to YOU problems with the rear mud flaps/guards as identified on Repair Order No. 997786 on September 27, 2021 and Repair Order No. 999378 on October 11, 2021 at DCH Toyota of Torrance.”  (RPD No. 41.)

            “All DOCUMENTS which evidence, describe, relate or refer to the numbers of California owners of the same year, make, and model as the SUBJECT VEHICLE who have complained of issues with the rear mud flaps/guards as identified on Repair Order No. 997786 on September 27, 2021 and Repair Order No. 999378 on October 11, 2021 at DCH Toyota of Torrance.”  (RPD No. 42.)

            “All DOCUMENTS evidencing, relating, or referring to complaints by California owners of the same year, make, model as the SUBJECT VEHICLE regarding issues with the vehicle pulling to the left when going over 60 mph as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 43.)

            “All surveys, reports, summaries, or other DOCUMENTS in which California owners of the same year, make, and model as the SUBJECT VEHICLE have reported to YOU problems with the vehicle pulling to the left when going over 60 mph as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 44.)

            “All DOCUMENTS which evidence, describe, relate or refer to the numbers of California owners of the same year, make, and model as the SUBJECT VEHICLE who have complained of issues with the vehicle pulling to the left when going over 60 mph as identified on Repair Order No. 997786 on September 27, 2021 at DCH Toyota of Torrance.”  (RPD No. 45.)

            “All DOCUMENTS evidencing, relating, or referring to complaints by California owners of the same year, make, model as the SUBJECT VEHICLE regarding issues with the driver’s front fender detaching on full turns as identified on Repair Order No. 382336 on June 28, 2022 at Toyota of Downtown.”  (RPD No. 46.)

            “All surveys, reports, summaries, or other DOCUMENTS in which California owners of the same year, make, and model as the SUBJECT VEHICLE have reported to YOU problems with the driver’s front fender detaching on full turns as identified on Repair Order No. 382336 on June 28, 2022 at Toyota of Downtown.”  (RPD No. 47.)

            “All DOCUMENTS which evidence, describe, relate or refer to the numbers of California owners of the same year, make, and model as the SUBJECT VEHICLE who have complained of issues with the driver’s front fender detaching on full turns as identified on Repair Order No. 382336 on June 28, 2022 at Toyota of Downtown.”  (RPD No. 48.)

In substantially identical responses, Defendant objected as follows:

            “Objection. This request is overbroad, burdensome and oppressive as to documents which “evidence, describe, relate, or refer to.” In addition, the request is vague, ambiguous and overbroad as to “issues with the driver’s front fender detaching on full turns,” calls for speculation and assumes facts not established. Further, the request is disproportionately burdensome and not reasonably limited in scope to the vehicle at issue. The request violates the attorney-client, attorney work product and/or consulting expert privileges. Moreover, the request seeks the production of confidential and proprietary information. The request constitutes an unreasonable invasion of privacy, violates third party privacy rights, seeks documents irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. Finally, the request seeks documents in the possession of third parties.”  (Response to RPD No. 48.)

Trade Secret Objection

Evidence Code section 1060 provides that “the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.”  A trade secret is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  (Civ. Code, § 3426.1(d).)  In setting forth whether a trade secret privilege applies, the Court of Appeal has stated that:

[T]he party claiming the privilege has the burden of establishing its existence. [Citations.] Thereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure. 

(Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.)

Here, Defendant fails to substantiate the claim that the evidence sought is trade secret information.  Nor does Defendant provide authority demonstrating that a denial of discovery is warranted.  To the extent that Defendant contends that a protective order is necessary, the Arptesi may submit a protective order modeled after the standard Los Angeles Superior Court Stipulation and Protective Order – Confidential Designation. 

Relevance, Vague, Burdensome, Overbroad, Oppressive

            As noted above, 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, supra, (1962) 58 Cal.2d at p.217.) 

            Under the Song-Beverly Act, “[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 willfulness 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, [italics added]; 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, each of the requests clearly seeks specific alleged defects that plagued the Subject Vehicle per the repair records.  Accordingly, the documents sought are clearly relevant.

            Attorney Client Privilege/Work Product Privilege

As noted above, while this could include privileged documents,  Defendant has not indicated which specific document are privileged.  Defendant’s blanket assertion of privilege is insufficient.  Defendant must produce a privilege log identifying what documents Defendant is withholding and enough factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].) 

Accordingly, Defendant must provide a privilege log identifying which if any documents Defendant is withholding and enough information to demonstrate that the attorney client privilege/work product protects the document(s) identified.

            Third Party Privacy

            The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

            As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).”  (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.)  Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.)  Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]”  (Puerto, supra, 158 Cal.App.4th at p.1252.) 

            In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.”  (Williams, supra, 3 Cal.5th 531, 557.)  “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Ibid.)

            Critically, “[t]he constitutional provision simply does not apply to corporations. The provision protects the privacy rights of people.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791.)  However, while no constitutional right of privacy exists as to corporations, “‘the nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se has a protectible privacy interest....’ [Citation] It is clear to us that the law is developing in the direction that the strength of the privacy right being asserted by a nonhuman entity depends on the circumstances. Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” (Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288.)

            Here, Defendant is an entity and thus has no constitutional right to privacy.  The sole privacy right that may exist is to third parties.  However, Defendant fails to substantiate or identify any privacy claim as to third parties or the extent of which said privacy would be invaded.  While there may be some third-party privacy interest in some of the documents sought, Defendant fails to substantiate such a pervasive invasion of privacy interest such that a denial of the respective discovery requests is warranted. 

            Accordingly, further responses are required.

Sanctions

            Sanctions were not requested in the notices nor in the oppositions.  Therefore, no sanctions can be awarded.  (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.”].)

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Nestor Sanchez’s motion to compel Defendant Toyota Motor Sales U.S.A.’s further responses to Form Interrogatory, Set One is DENIED.

Plaintiff Nestor Sanchez’s motion to compel Defendant Toyota Motor Sales U.S.A.’s further responses to Request for Production of Documents, Set One is GRANTED IN PART and otherwise DENIED.

Defendant Toyota Motor Sales U.S.A. is to provide a further code compliant response to Request for Production, Set One No. 14, and 37-48 without objection except as to attorney-client/work product privilege within 7 days of notice of this order.  Request 14 is to be temporarily limited to documents from between September 13, 2021 and August 11, 2022.  Defendant is to provide responsive documents – compliant with the further responses – and any applicable privilege log within 10 days of notice of this order.

Moving Party is to provide notice and file proof of service of such.

DATED: October ___, 2023                                                  ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court