Judge: Gregory Keosian, Case: 21STCV14580, Date: 2023-02-23 Tentative Ruling

Case Number: 21STCV14580    Hearing Date: February 23, 2023    Dept: 61

Plaintiff Armando Torres’s Motion to Compel Compliance with August 24, 2022 Order Compelling Further Responses is GRANTED. Defendant is directed to search for responsive emails and electronically stored information responsive to the requests and to provide a further response to each request at issue. Responsive documents are not limited to California. Defendant shall redact the personal identifying information of other consumers.

I.                   MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “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).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand.  (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

This court on August 24, 2022, granted in part Plaintiff Armando Torres’s motion to compel further responses to requests for production of documents from Defendant Honda Motor Co., specifically as to Requests No. 20–22 and 29–31, which sought documents and communications related to specified defects in the transmission and electrical system for vehicles of the same year, make, and model as the subject vehicle in this case. Defendant had responded to these requests with statements of partial compliance, subject to objections based largely on overbreadth.

Defendant on October 7, 2022, provided further responses pursuant to the court’s prior order. (Neubaer Decl. Exh. 2.) The responses to Requests No. 20–22 stated that compliance was being offered in whole, or had already been made achieved in whole, and identified several documents included in the production that were identified as responsive. (Separate Statement at pp. 7–23.) Defendant’s responses to Requests No. 29–31, which sought documents related to the electrical system, were similar, save that it provided a statement of inability to comply as to Request No. 30. (Separate Statement at pp. 28–46.)

Plaintiff argues that the further responses are evasive, not code-compliant, and inconsistent with prior responses. Plaintiff contends that the request for internal analyses or investigation of transmission defects returned 23 pages of documents, with no electronically stored information or emails. (Neubaer Decl. ¶ 7a.) The responses to Requests No. 21, 22, and 31, meanwhile, stated that all responsive documents had already been produced, yet referenced only the prior production that Defendant had made under its earlier responses, which expressly stated only partial compliance was being offered. Likewise, as to Request No. 30, to which Defendant previously indicated it would comply produce only a limited selection of documents, Defendant amended its response to state that, after a diligent inquiry, it was unable to comply with the request at all. Plaintiff further objects to the verification supplied with the responses, which indicated it was being made by one of Defendant’s corporate officers without full personal knowledge, and without indication as to who had assisted in the compilation of the documents to be produced.

The court first notes that there is no defect in the verification, and any such defect was not raised or addressed in this court’s prior order. An officer or agent must execute a verification for an entity’s discovery responses (Code Civ. Proc. § 2031.250), which in practice means that discovery verifications will be made on information and belief. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1106.)

Further responses are warranted to the requests at issue. Although Defendant contends that it has complied in whole with requests No. 21, 22, and 31, the documents cited to support such contentions are only to what it previously produced with its earlier response, which were expressly limited based on Defendant’s contention that the requests’ “overbreadth and lack of reasonable particularity.” (Separate Statement at p. 31.) A similar conclusion is justified as to Request No. 30, which between Defendant’s first and second responses morphed from a statement of partial compliance and partial production to a statement that no responsive documents existed at all. Defendant in opposition acknowledges, moreover, that no email search was conducted, despite the explicit requests in each demand at issue that emails and electronically stored information be included in the production, on the grounds that the court did not order a search of emails and that nothing would be accomplished by such production. (Opposition at p. 7.) Even in response to Requests No. 20 and 29, which lack overt inconsistency with their prior responses, such statements indicate the further production and response is necessary.

Defendant is therefore directed to search for responsive emails and electronically stored information responsive to the requests and to provide a further response to each request at issue. Defendant asks that any such search, and any other responsive documents, be limited to the state of California, as is typical of such cases. (Opposition at pp. 4–5, 8–9.) Defendant’s oppposition to the prior motion to compel argued no such limitation, and no such limitation was included in the court’s order. However, the order is appropriately clarified to permit Defendant to redact the personal identifying information of other consumers contained in its document production, as such redactions concern the privacy rights of third parties. (Opposition at p. 7.)

The parties dispute whether Defendant’s document production ought to be redacted to protect the privacy of other consumers, and whether the document production ought to encompass vehicles of the same year, make, and model, outside the state of California. (Opposition at pp. 4–5, 7–9.) It is appropriate for Defendant to redact personal identifying information of other consumers to protect their privacy.

The motion to compel compliance is therefore GRANTED. Defendant is directed to search for responsive emails and electronically stored information responsive to the requests and to provide a further response to each request at issue. Responsive documents are not limited to California. Defendant shall redact the personal identifying information of other consumers.

II.                SANCTIONS

“Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

Plaintiff asks this court to impose a prospective monetary sanction against Defendant for each day that Defendant does not search for documents, or for each day that documents are not produced. (Motion at p. 16, citing Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605 [“[T]he court could have imposed a significant monetary penalty for every day Watchtower did not search for the documents or for each day the responsive documents were not produced.”].)

Sanctions to be addressed at hearing.