Judge: Gregory Keosian, Case: 22STCV14033, Date: 2022-12-14 Tentative Ruling

Case Number: 22STCV14033    Hearing Date: December 14, 2022    Dept: 61

Plaintiff Christopher Broussard’s Motion to Compel Further Responses to Requests for Production from Defendant Nissan North America, Inc. is GRANTED as to Reqeusts No. 18, 20, 30, 35, 81, 83, and 84, and limited in regard to No. 78 to the years 2016 and after. The motion is DENIED as to Reqeusts No. 1, 8, 15, 65, and 67.

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 3inspection demand.  (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Plaintiffs Christopher and Pamela Broussard (Plaintiffs) move to compel further responses to requests for production No. 1, 8, 15, 18, 20, 30, 35, 65, 67, 78, 81, 83, and 84. Plaintiffs put these requests into two categories: those related to Defendant Nissan North America’s (Defendant) prior knowledge of the defects in the subject vehicle (1, 15, 18, 20, 30, 35, 81, 83, and 84), and those related to Defendant’s warranty and vehicle repurchase policies and procedures (8, 65, 67, and 78). (Motion at p. 1.)

Defendant contends that Plaintiffs failed to adequately meet and confer. (Opposition at pp. 3–4.) But Defendant acknowledges that Plaintiffs preceded the present motion with two letters, and takes issue only with the fact that the letters argued that Defendant’s objections were without merit. (Ibid..) What’s more, Defendant further acknowledges these efforts culminated in the parties agreeing to a protective order. (Ibid.) These efforts were adequate prelude to the present motion.

The requests are supported by good cause. To succeed on a claim brought under the Song-Beverly Consumer Warranty Act (“the 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.) This supports a wider inquiry into Defendant’s knowledge of the defect at issue here, not just as manifested in this specific vehicle.

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.) In a similar vein, the court in Santana v. FCA US, LLC (2020) 56 Cal.App.5^th 334, 347, held that a manufacturer’s internal emails concerning a mechanical defect were relevant in a lemon law to show that the manufacturer “intentionally chose not to honor the express warranty,” and thus merited civil penalties.

However, Defendant has already complied with certain of the requests at issue.. Specifically, Defendant’s responses to Requests No. 1, 8, 15, 65, 67, state that it will “comply in whole” and produce all documents in its possession and control, then describes a list of documents that are responsive. (Separate Statement at pp. 6–7.)  While these responses are offered subject to objections, there is no indication that Defendant is withholding documents pursuant to these objections. The motion is therefore DENIED as to Requests No. 1, 8, 15, 65, and 67.

Most remaining requests are supported by good cause, and Defendant offers no persuasive argument as to why further response ought not be made. It argues that responding to requests concerning other vehicles, or its knowledge of relevant defects, would prove unduly burdensome. (Opposition at pp. 8–9.) But it offers no evidence as to the “quantum of work required” to respond, as would support an undue burden objection. (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.)

Defendant is correct, however, that Request No. 78, is overbroad as framed. The request simply seeks Nissan’s “recall policies and procedures,” with no limitation in time. (Separate Statement at p. 41.) The other requests, though not containing any express limitation in time, are explicitly limited in applicability to vehicles of the same year, make, and model. This request is therefore properly limited to the years applicable to the subject vehicle, i.e. 2016 and later.

Accordingly, the motion is GRANTED as to Reqeusts No. 18, 20, 30, 35, 81, 83, and 84, and limited in regard to No. 78 to the years 2016 and after. The motion is DENIED as to Reqeusts No. 1, 8, 15, 65, and 67.