Judge: Gregory Keosian, Case: 21STCV07639, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV07639    Hearing Date: February 7, 2023    Dept: 61

I.        MOTION TO COMPEL FURTHER

“A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand (Code Civ. Proc., § 2031.300.) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

Plaintiff Maria Gutierrez seeks further responses to requests for production No. 1–55 from Defendant Volkswagen Group of America (Defendant). Requests No. 1–9 seek documents relating to Plaintiff’s own vehicle and Defendant’s warranty policies and procedures, while Requests No. 10–55 seek documents indicative of Defendant’s knowledge of similar defects in other vehicles of the same year, make, and model. Defendant responded to each request with objections.

Defendant in opposition contends that the motion is untimely as to Requests No. 1–9, as these requests are duplicative of requests for production that Plaintiff previously served, and which Defendant answered in July 2021, long before the present motions were filed. (Davenport Decl. ¶ 6, Exhs. C, D.) As to Requests No. 10–55, Defendant contends that these requests are vague and overbroad, needlessly encompassing consumers and vehicles other than Plaintiff and the vehicle at issue.(Opposition at pp. 8–14.)

The first argument as to the duplicative nature of Requests No. 1–9 is persuasive. These requests seek essentially the same documents concerning Plaintiff’s vehicle and Defendant’s warranty policies and procedures that were already the subject of other requests that Defendant answered in 2021. (Davenport Decl. Exhs. C, D.) Any motion related to those earlier requests is therefore untimely for being brought more than 45 days after receipt of a response. (Code Civ. Proc. § 2031.310, subd. (c).) It has been held that a party who fails to bring a motion to compel further responses within the time appointed by statute may not “avoid the consequences of his delay and lack of diligence by propounding the same question again.” (Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494.) Such is the case with Requests No. 1–9 here.

But good cause exists for Requests No. 10–55, and Defendant’s objection based on overbreadth are unpersuasive, as Plaintiff may use evidence of other vehicles to pursue their Song Beverly claims. To succeed on a claim brought under the Song-Beverly Consumer Warranty Act, the plaintiff bears the burden of proving several elements, including nonconformity of a vehicle that substantially impaired its use, value, or safety, presentation of a vehicle to a manufacturer or authorized representative for repair, and failure to repair the defect after a reasonable number of attempts. (Oregel v. Am. Isuzu Motors, Inc. (“Oregel”) (2001) 90 Cal.App.4th 1094, 1101.)

A buyer may be entitled to a civil penalty of up to two times the actual damages upon a showing that the manufacturer willfully failed to abide by any of its obligations under the Act. (Civ. Code § 1794, subd. (c).) Evidence that a defendant “adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act,” is relevant to a determination of “willfulness” in relation to prayers for the civil penalty. (Oregel, supra, 90 Cal.App.4th at p. 1105.)

There is case authority for this proposition. The court in Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 993–994, held that Bentley’s failure to turn over customer complaints regarding defects on other Bentleys to support the plaintiff’s claim under the Song-Beverly Act was an abuse of discovery so flagrant that the trial court abused its discretion by not imposing terminating sanctions. Other cases have embraced a evidentiary rule similar to that only implicit in Doppes. In Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, the trial court allowed an expert to testify that a particular transmission was defective  because he had heard from “others” that the same transmission in “other vehicle[s]” was “problematic.” The Court of Appeal held that the “other vehicle” testimony was properly “limited to the transmission model Ford installed in plaintiff’s truck and other vehicles.”  (Id. at p. 154.)  The court held that “[s]uch evidence certainly was probative and not unduly prejudicial.”  (Ibid.) And in another case, Santana v. FCA US, LLC (2020) 56 Cal.App.5^th 334, 347, the court held that a manufacturer’s internal emails concerning a mechanical defect in a lemon law case were relevant to show that the manufacturer “intentionally chose not to honor the express warranty,” and thus merited civil penalties. Thus Plaintiff is not limited to requests concerning the particular vehicle at issue.

The motion is therefore GRANTED as to Requests No. 10–55, and DENIED as to Requests No. 1–9.