Judge: Elaine Lu, Case: 23STCV06041, Date: 2024-01-09 Tentative Ruling
Case Number: 23STCV06041 Hearing Date: January 9, 2024 Dept: 26
Superior Court of
California
|
EMMA COCOLETZI, Plaintiff, v. KIA
AMERICA, INC., et
al. Defendants. |
Case No.:
23STCV06041 Hearing Date: January 9, 2024 [TENTATIVE] order RE: Plaintiff’s motion to compel defendant’s further responses to request
for production, set One |
Procedural
Background
On March
20, 2024, Plaintiff Emma Cocoletzi (“Plaintiff”) filed the instant action against
Defendant Kia America, Inc. (“Defendant”) arising from the purchase of a 2017 Kia
Soul (“Subject Vehicle”). The complaint
asserts five causes of action for (1) Violation of Civil Code § 1793.2(d), (2)
Violation of Civil Code § 1793.2(b), (3) Violation of Civil Code § 1793.2(a)(3),
(4) Breach of Express Written Warranty, and (5) Breach of the Implied Warranty
On December
11, 2023, Plaintiff filed the instant motion to compel Defendant’s further
responses to Request for Production of Documents, Set One (“RPDs”). On December 27, 2023, Defendant filed an
opposition. On January 3, 2024,
Plaintiff filed a reply.
Legal
Standard
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 RPDs No. 16-21, and 49-51.
Meet and Confer
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,
on June 26, 2023, Defendant provided responses to the at issue RPDs. (Ryu Decl. ¶¶ 19-20, Exh. 5.) On August 7, 2023, Plaintiff sent a meet and
confer letter asserting that various responses to RPDs were insufficient and
demanding further responses within seven days.
(Ryu Decl. ¶ 22, Exh. 6.) On
September 8, 2023, the parties telephonically met and conferred. (Ryu Decl. ¶ 23.) Moreover, the parties entered into a protective
order on October 16, 2023. Ryu Decl. ¶
24, Exh. 7.) However, Defendant failed
to provide further responses or documents. (Ryu Decl. ¶¶ 25, 27.) Based on the circumstances, Plaintiff has
sufficiently met and conferred.
The Instant Motion is Not Moot
In
opposition, Defendant claims that the relevant documents were produced on December
27, 2023, and therefore, the instant motion is moot. (See e.g., Smith Decl. ¶ 10, Exh. D.)
The Court disagrees. Even
presuming all relevant and responsive documents have been produced produced, a response to an RPD consists of both a code
complaint written response verifying any produced documents and the documents produced
themselves. Thus, the mere fact
that Defendant has provided responsive documents does not mean that the
responses verifying the document production are proper.
RPD No. 16-18
“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 ENGINE 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 ENGINE DEFECT, any such investigation to
design a permanent repair procedure for such ENGINE DEFECT, any such
investigation into the failure rates of parts associated with such ENGINE
DEFECT, any cost analysis for implementing a proposed repair procedures, any
savings analysis not implementing a proposed repair procedures, etc.].” (RPD No. 16.)
“All
DOCUMENTS, including but not limited to electronically stored information and
electronic mails, concerning or relating to any communications YOU have had
regarding ENGINE DEFECT in vehicles of the same year, make, and model as the
SUBJECT VEHICLE.” (RPD No. 17.)
“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 ENGINE DEFECT in vehicles of the same year, make, and
model as the SUBJECT VEHICLE.” (RPD No.
18.)
In
identical responses Defendant responds as follows:
“KA
objects to this request on the following grounds: [¶] 1. KA objects to this
request because it is overly broad, vague, ambiguous, and not properly limited
in time and scope. In responding to this request, KA presumes Plaintiff does
not seek the discovery of attorney/client communications, nor does Plaintiff
seek the discovery of the attorney work product of either in-house or outside
counsel. KA’s responses will be limited with this understanding. [¶] 2. This
request seeks disclosure of materials which are not reasonably related to the
issues presented by the subject matter of this litigation, are irrelevant,
immaterial, and not reasonably calculated to lead to the discovery of
admissible evidence. [¶] 3. The phrase "ENGINE DEFECT" is vague, ambiguous,
overly broad in time and scope, unintelligible, compound, and unduly
burdensome, and KA cannot respond without resorting to speculation. [¶] 4. This
request seeks proprietary, commercially sensitive and confidential information,
and/or licensed software. [¶] 5. This request seeks information protected by
the attorney work-product doctrine and attorney/client privilege. These
protected documents can generally be described as any correspondence, notes,
memoranda, or reports generated by or for KA's legal counsel. [¶] 6. This
request also violates Calcor Space
Facility, Inc. v. Superior Court (1997) 53
Cal.App.4th 216, 61 Cal.Rptr.2d 567. Specifically, whether Plaintiff is
entitled to relief under the Song-Beverly Consumer Warranty Act is entirely
unrelated to alleged complaints regarding other vehicles of the same year,
make, and model as the subject vehicle. [¶] 7. This request is unduly
burdensome and oppressive. It is intended to create an unreasonable burden on
this responding party and that ultimate burden is incommensurate with any
benefit to the propounding party. [¶] 8. KA further objects to this request
insofar as it seeks the premature disclosure of expert witness information or
materials.” (Response to RPDs Nos. 16-18.)
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. Moreover, the parties have entered into a
protective order minimizing the harm from disclosure of any propriety
confidential trade secret information.
Attorney Client Privilege/Work Product
Privilege
“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, the requests do appear to include
documents that could be protected by attorney client privilege such as
communications with previous counsel about prior lemon law actions. However, Defendant has failed to provide any
privilege log identifying what if any responsive documents Defendant is
withholding on the basis of attorney client privilege/work product. Though Defendant may have properly raised
attorney client privilege, there are undoubtedly responsive documents to at
least some of these requests that are not privileged. Moreover, to the extent that there are
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.
Relevance, Vague, Burdensome, Overbroad,
Oppressive
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].)
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.”].)
As to burden,
“burden must be sustained by evidence showing the quantum of work required” and
“to support an objection of oppression there must be some showing either of an
intent to create an unreasonable burden or that the ultimate effect of the
burden is incommensurate with the result sought.” (West
Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles
County (1961) 56 Cal.2d 407, 417.)
Moreover, even if [discovery requests] are found to be “burdensome and
oppressive,” the Court should not simply sustain the objection and thereby
excuse any answer. Rather, the Court should limit the question to a reasonable
scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7
Cal.App.3d 286, 289.)
Here,
as to its burden objection, Defendant fails to substantiate the quantum of work
it would take to respond to these requests in either the responses or the
opposition. Moreover, the requests are relevant
as to whether Defendant was aware of the alleged defect in the Subject Defect
due to prior incidents and thus was willful in denying Plaintiff
restitution.
However,
the requests are slightly overbroad as the requests are not geographically
limited to California. Further, the use
of the term “ENGINE DEFECT” is slightly overbroad. As defined, “ENGINE DEFECT” has been defined to
mean “such defects which result in symptoms including, but not limited to: loss
of power; sluggish performance; engine shakes mid-operation; failure and/or
replacement of CAT; failure and/or replacement of manifold catalytic; failure
and/or replacement of O2 sensor; clogging free flow; disrupted power; failure
and/or replacement of gasket exhaust manifold; battery drains; premature
failure and/or replacement of battery; abnormal engine oil consumptions; engine
oil leaks; TSB ENG222REV6; and any other concern identified in the repair
history for the SUBJECT VEHICLE.” First,
the use of “not limited to” is overbroad as the term “ENGINE DEFECT” does not
otherwise have any limitation in its meaning.
Second, the listed issues go beyond those alleged in the complaint or
those arising from the repair history for the Subject Vehicle. The complaint merely alleges “a. Defective
powertrain system; b. Defective safety system; c. Defective braking system; d.
Excessive oil consumption; e. Noise defect; f. Defective body system; [and] g.
Defective electrical system[.]”
(Complaint ¶ 11.) The repair
history denotes many of the above issues, however, there is no mention of
battery drains or failure/replacement of battery. (Ryu Decl. ¶¶ 5-11, Exh. 1.) Accordingly, the term “ENGINE DEFECT” as used
in these RPDs is overbroad and must be limited to defects experienced in the
Subject Vehicle.
Accordingly,
the responses to RPDs No. 16-18 are geographically limited to other vehicles of
the same, make and model in California and experiencing “ENGINE DEFECTS” “which
result in symptoms including: loss of power; sluggish performance; engine
shakes mid-operation; failure and/or replacement of CAT; failure and/or
replacement of manifold catalytic; failure and/or replacement of O2 sensor; clogging
free flow; disrupted power; failure and/or replacement of gasket exhaust
manifold; abnormal engine oil consumptions; engine oil leaks; and TSB
ENG222REV6.”
RPDs No. 19-21, 51
“All
DOCUMENTS, including but not limited to electronically stored information and
electronic mails, concerning customer complaints, claims, reported failures,
and warranty claims related to ENGINE DEFECT, in vehicles of the same year,
make, and model as the SUBJECT VEHICLE, 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.” (RPD No. 19.)
“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 ENGINE DEFECT.” (RPD No. 20.)
“All
DOCUMENTS, including but not limited to electronically stored information and
electronic mails, concerning or relating to any fixes for ENGINE DEFECT in
vehicles of the same year, make, and model as the SUBJECT VEHICLE.” (RPD No. 21.)
““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 the
ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT
VEHICLE.” (RPD No. 51.)
As
to these RPDs, Defendant’s response is substantially the same as the responses
to RPDs Nos. 16-18, except that the first objection includes:
“1.
KA objects to this request because it is overly broad, vague, ambiguous, and
not properly limited in time and scope because the phrase [‘customer
complaints, claims, reported failures, and warranty claims’/ ‘failure rates of
vehicles’/ ‘fixes’] is not defined and thus the information is not limited to
issues that may rise to the level of a nonconformity, which is the only
information relevant or potentially discoverable in a Song-Beverly case. KA
further objects to this Request on the grounds that it fails to identify the
documents requested with reasonable particularity as required by Code of Civil
Procedure section 2031.030, subdivision (c)(1).” (Responses to RPDs Nos. 19-21.)
Defendant’s
objections based on trade secret, relevance, burden, and attorney-client privilege
are unsupported as detailed above as to RPDs 16-18. Similarly, to the extent the requests are
overbroad, RPDs 19-21 are limited as specified as with RPDs 16-18.
As
to the additional objections, Defendant’s claim that it cannot answer these RPDs
due to the lack of definition of terms such as “customer complaints” is without
merit. The terms such as customer
complaints are straightforward and have clear common definitions and
Defendant’s response appears to deliberately misconstrue said requests. (See e.g., Deyo v. Kilbourne (1978) 84
Cal.App.3d 771, 783 [“A party may not deliberately misconstrue a question for
the purpose of supplying an evasive answer.”].)
“Indeed, where the question is
somewhat ambiguous, but the nature of the information sought is apparent, the
proper solution is to provide an appropriate response.” (Ibid.)
Similarly, the objection based on Code of Civil Procedure
section 2031.030(c)(1) is unwarranted. This
section requires that each RPD separately “[d]esignate 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.” (CCP § 2031.030(c)(1).) Here, each of these requests satisfies these
requirements.
RPD No. 49
“All
DOCUMENTS provided to any qualified third party dispute resolution program in
which YOU participate regarding, reflecting, or concerning YOUR policies and/or
procedures regarding the Song Beverly Consumer Warranty Act.” (RPD No. 49.)
In
response, Defendant provides identical objections as to RPDs 16-18 and the
following substantive response:
“Subject
to and without waiving these objections, KA agrees to comply with this demand
in part and will produce all documents or things in the demanded category that
exist and are in its possession, custody, or control, and to which no objection
is being made. KA responds that it will produce a copy of its BBB Autoline
Certification form.” (Response to RPD
No. 49.)
Objections
Defendant’s
objections based on trade secret, burden, and attorney-client privilege are
unsupported as detailed above as to RPDs 16-18.
As
to the objections based on relevance, 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,
supra, 181 Cal.App.4th at p.1051.)
Nor does willfulness require a showing of malice or wrongdoing towards
the other party. (Ibrahim, supra, 214
Cal.App.3d at p.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,
supra, 44 Cal.App.4th at p.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, supra, 90 Cal.App.4th at
p.1104.)
Here,
the request is relevant to whether the policies show that Defendant is
intentionally violating its Song-Beverly obligations or that Defendant deviated
from its own policy with regard to Plaintiff’s claims. Thus, the requested documents are probative
of Defendant’s willfulness in failing to comply with its Song-Beverly
obligations. However, the requests are
overbroad as the only time period would be when Plaintiff’s issues with the
vehicle arose and when Defendant wrongfully rejected Plaintiff’s claim for
restitution. As noted in the complaint,
Plaintiff did not purchase the Subject Vehicle until September 15, 2017. (Complaint ¶ 13.) As such only the internal policies applicable
from September 15, 2017 to when the complaint was filed on March 20, 2023 would
be relevant. Moreover, the request is
slightly overbroad as it is not limited to California.
The Substantive Response is Improper
and Unclear
As
noted above, the response includes an objection and a substantive
response. The substantive response
provides that “Subject to and without waiving these objections, KA agrees to
comply with this demand in part and will produce all documents or things in the
demanded category that exist and are in its possession, custody, or control,
and to which no objection is being made. KA responds that it will produce a
copy of its BBB Autoline Certification form.”
(Response to RPD No. 49, [Italics Added].) This
substantive response is not code compliant.
Defendant
has not waived any objections. Thus, it
is unclear whether documents are being withheld based on such objections. Therefore, Defendant was required to identify
the documents being withheld and the basis for the withholding. (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.].)
If all responsive documents are being produced, the response must
clearly identify as such stating that Defendant has produced all responsive
documents in its possession, custody, or control and identify the responsive
documents.
Accordingly, a further code
complaint response is required.
RPD No. 50
“All
training manuals and/or other DOCUMENTS relating to the training given to YOUR
employees, agents, and representatives in connection with handling consumer
lemon law repurchase requests.” (RPD No.
50.)
“KA
objects to this request on the following grounds: [¶] 1. KA objects to this
request because it is overly broad, vague, and ambiguous in that Plaintiff
never requested a repurchase of the vehicle thus the information is not likely
to lead to the discovery of admissible evidence. KA further objects to this Request
on the grounds that it fails to identify the documents requested with
reasonable particularity as required by Code of Civil Procedure section
2031.030, subdivision (c)(1). In responding to this request, KA presumes
Plaintiff does not seek the discovery of attorney/client communications, nor
does Plaintiff seek the discovery of the attorney work product of either
in-house or outside counsel. KA’s responses will be limited with this
understanding. [¶] 2. This request seeks disclosure of materials which are not
reasonably related to the issues presented by the subject matter of this
litigation, are irrelevant, immaterial, and not reasonably calculated to lead
to the discovery of admissible evidence. [¶] 3. This request seeks proprietary,
commercially sensitive, and confidential information. [¶] 4. This request is
vague, ambiguous, overbroad, and unduly burdensome with respect to scope and
time. [¶] Subject to and without waiving these objections, KA responds as
follows: Subject to entry of an appropriate protective order regarding KA’s
proprietary, commercially sensitive, and confidential documents, KA agrees to
comply with this demand and will produce all documents or things in the
demanded category that exist and are in its possession, custody, or control,
and to which no objection is being made. KA refers Plaintiff to the Warranty
and Consumer Information Manual, a copy of which has been previously produced,
and relevant portions of the Service Policy and Procedures Manual and Call
Matrix, copies of which will be produced subject to entry of a Protective Order
in this case.” (Response to RPD No. 50.)
Objections
Defendant’s
objections based on trade secret, relevance, burden, and attorney-client
privilege are unsupported as detailed above.
Moreover,
the substantive response is improper in that it improperly limits the response
to “all documents or things in the demanded category that exist and are in its
possession, custody, or control, and to which no
objection is being made.” (Response to RPD No. 50, [Italics Added].) Given that Defendant has not waived objections,
it is unclear whether documents are being withheld based on such
objections. Therefore, Defendant is required
to identify the documents being withheld and the basis for the
withholding. (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.].) If all responsive documents
are being produced the response must clearly identify as such stating that
Defendant has produced all responsive documents in its possession, custody, or
control and identify the responsive documents.
Accordingly, a further code
complaint response is required.
Sanctions
Sanctions were not
requested in the notice. 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 Emma Cocoletzi’s motion to compel
further responses to the Request for Production of Documents, Set One from Kia
America, Inc. is GRANTED.
Defendant Kia America, Inc. is ordered to serve
verified, further, code compliant responses to Request for Production, Set One
No. 16-21, 49-51 without objection except as to attorney-client/work product
privilege within 20 days of notice of this order. Requests 16-21, and 49-51 are geographically
limited to California. Requests 16-21,
and 51 are further limited as to the term “ENGINE DEFECT” meaning defects which result in symptoms including: loss of
power; sluggish performance; engine shakes mid-operation; failure and/or
replacement of CAT; failure and/or replacement of manifold catalytic; failure
and/or replacement of O2 sensor; clogging free flow; disrupted power; failure
and/or replacement of gasket exhaust manifold; abnormal engine oil
consumptions; engine oil leaks; and TSB ENG222REV6.
Request 49 is
temporarily limited to internal policies applicable from September 15, 2017 to
March 20, 2023.
Defendant is to
provide responsive documents – compliant with the further responses – and any
applicable privilege log within 25 days of notice of this order.
Moving Party is to provide notice and file
proof of service of such.
DATED: January ___, 2024 ___________________________
Elaine
Lu
Judge
of the Superior Court