Judge: Gregory Keosian, Case: 22STCV22269, Date: 2023-02-08 Tentative Ruling
Case Number: 22STCV22269 Hearing Date: February 8, 2023 Dept: 61
Plaintiff Bryan Bergman’s Motions to Compel Further
Responses to Requests for Production and Form Interrogatories from Defendant
Ford Motor Company are GRANTED as to Requests No. 9, 10, 14, 17, and DENIED as
to Requests No. 31 and 34–60 and Form Interrogatories.
Plaintiff Bryan Bergman’s Motions to Compel Deposition are
GRANTED as to Defendant’s Person Most Knowledgeable and DENIED as to Customer
Service Representatives.
I.
MOTIONs
TO COMPEL FURTHER — 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.)
Plaintiff Bryan
Bergman (Plaintiff) moves to compel further responses to Requests for
Production No. 9, 10, 14, 17, 31, and 34–60. Some of these Requests (No. 9, 10,
14, and 17) sought recall, warranty, advertising, and communication documents
related specifically the vehicle at issue in this case. (Separate Statement at
pp. 3–9.) Request No. 31 sought all documents related to Defendant’s customer
care center. (Separate Statement at p. 12.) And Requests no. 34–60 seek documents
related to Defendant’s efforts to reduce warranty repurchases and refunds, and
relating to any defects in vehicles of the same year, make and model. (Separate
Statement at pp. 15–44.)
Defendant Ford
Motor Company (Defendant) responded to Requests No. 9, 10, 14, 17, and 31 with
statements of partial compliance and objections. It responded to Requests No.
34–60 with objections and statements that it would not comply.
Further responses
are necessary as to Requests No. 9, 10, 14, and 17, as these requests are
reasonably related to the subject vehicle and the subject matter of this
litigation. Although Defendant objects that it has already offered to comply,
it has offered only to comply in part, based on its own unilateral judgment as
to what documents are relevant to this case. (Opposition at pp. 8–9.) And
although the requests use broad framing language — “regarding,” “evidencing,”
or “relating to” — the subject matter encompassed by such words is Plaintiff’s
vehicle, meaning the universe of documents encompassed in each request is
manageable. To the extent that Defendant claims responsive documents are
privileged, a privilege log is the remedy. (See Code Civ. Proc. §
2031.240.) Thus the motion is GRANTED as to Requests No. 9, 10, 14, and 17.
No further response
is warranted as to Requests No. 31 and 34–60. The first, Request No. 31, seeks
all documents “relating to the Customer Call Center,” without limitation.
(Separate Statement at p. 12.) The request is thus ill-defined and overbroad.
And the remaining
Reqeusts No. 34–60 do not require further response, as they are unsupported by
good cause. Discovery into the manufacturer’s overall policies, and into other
consumers and vehicles of the same type, is arguably relevant to establish
entitlement to civil penalties under California’s Song Beverly Act. (See Civ.
Code § 1794, subd. (c); Santana v. FCA US, LLC (2020) 56 Cal.App.5th
334, 347.) But Plaintiff here alleges no claim under the Song Beverly Act, but
brings claims under the federal Magnuson-Moss Act and the California Commercial
Code.
Moreover, Defendant has shown that complying with these
requests would constitute an undue burden. Defendant presents the declaration
of John Southerland, an attorney who has defended Defendant in many cases like
the present, who states that the requests for documents related to Defendant’s
overall efforts to reduce buybacks, or documents related to defects existing in
other vehicles, do not correspond to any one database or set of databases kept
by Defendant. (Southerland Decl. ¶¶ 10–13.) Although such databases exist,
to respond to the call of these requests would require a broad search through a
variety of other locations with a number of individuals, in addition to the
work of identifying which of the documents found are actually responsive
(Southerland Decl. ¶¶ 13–16.) Having been made to conduct similar searches in
similar cases, which took “hundreds of hours,” Southerland estimates that the
production in this case, for these requests, would take “at least 100 hours”
and cost $20,000.00. (Southerland Decl. ¶¶ 17–21.)
“The court shall limit the scope of discovery if it
determines that the burden, expense, or intrusiveness of that discovery clearly
outweighs the likelihood that the information sought will lead to the discovery
of admissible evidence.” (Code Civ. Proc. § 2017.020, subd. (a).) “[T]he party
opposing discovery has an obligation to supply the basis for this
determination,” and to provide evidence “showing the quantum of work required.”
(Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Defendant here
has shown that the quantum of work required by these requests, which seek broad
categories of internal documents and all documents related to them, is out of
proportion to the amount and likelihood of admissible evidence that the
requests would uncover. Plaintiff in reply argues that Defendant has an
obligation under the Transportation Recall Enhancement, Accountability, and
Documentation Act (TREAD Act) to make periodic reports to the federal government
concerning potential safety defects, meaning that Defendant likely has
responsive documents. (Reply at pp. 4–5.) But Plaintiff has not rebutted
Defendant’s showing of burden associated with these requests, nor made a
compelling enough showing of good cause to justify that burden.
The motion is therefore GRANTED as to Requests No. 9, 10,
14, 17, and DENIED as to Requests No. 31 and 34–60.
II.
MOTION TO COMPEL FURTHER – INTERROGATORIES
“Any party may obtain discovery . . . by propounding to any other party to
the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a
propounding party is not satisfied with the response served by a responding
party, the former may move the court to compel further interrogatory
responses. (Code Civ. Proc., § 2030.300;
Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the
responses were incomplete, inadequate or evasive, or that the responding party
asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)
Plaintiff moves to compel a further response to Form
Interrogatory No. 12.1, which sought contact information for witnesses to the
“incident,” referring to the subject matter of this case. (Separate Statement
at p. 2.) Defendant responded by listing Plaintiff, representatives at Santa
Monica Ford, and several categories of documents, such as warranty repair
records and communications with Defendant’s customer service operators.
(Separate Statement at pp. 2–3.) In the present motion, Plaintiff takes issue
with Defendant’s failure to name the technicians who performed work on
Plaintiff’s vehicle, and that Plaintiff’s repair orders list only technician
numbers, which only Defendant can correlate to actual witnesses. (Separate
Statement at p. 4.) Plaintiff further argues that Defendant has not identified
the representatives who communicated regarding the subject vehicle. (Separate
Statement at pp. 3–4.)
Defendant in opposition argues that it’s response was
compliant, as the representatives who communicated with Plaintiff concerning
the vehicle are listed in Defendant’s document production, and the technicians
(who are not Defendant’s employees) are available in repair documents.
(Opposition at pp. 4–5.) Defendant also argues that it provided a supplemental
response on January 6, 2023, some twenty days before filing its opposition.
(Opposition at p. 3.)
The supplemental response served by Defendant on January 6,
2023, has mooted the motion. The new responses identify technicians and
representatives, contactable through their business offices and associated
numbers. (Opposition Exh. 6.)
The motion is therefore DENIED.
III.
MOTIONS TO COMPEL DEPOSITION
A party may make a
motion compelling a witness’s deposition “after service of a deposition notice”
if that witness “fails to appear for examination, or to proceed with it.” (Code
Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer
declaration and show good cause for the discovery sought. (Code Civ. Proc. §
2025.450, subd. (b)(1), (2).)
Plaintiff here brings two
motions to compel depositions: one for the deposition of Defendant’s person
most knowledgeable (PMK) and another for the deposition of certain of
Defendant’s customer service representatives. The deposition notices were sent
on September 2, 2022, and set for September 16, but Defendant served objections
and did not appear. (Galaviz Decl. ¶¶ 3–4.)
Defendant in opposition argues
that the PMK motion is moot as it has already agreed to provide a deponent for
most of the topics and requests at issue. (Motion at p. 2.) But Defendant
maintains objections to certain other topics of examination and requests for
production. These objections are as follows:
·
Topics No. 15–18, and Requests No. 11–14,
concerning the supervision of Defendant’s California Lemon Law compliance,
which Defendant contends is overbroad in relation to this case. (Opposition at
pp. 6–7.)
·
Topics No. 2–6, and Requests No. 3 and 4,
concerning technical service bulletins and recalls applicable to the subject
vehicle, which Defendant contends are also overbroad. (Opposition at pp. 7–8.)
·
Topics No. 1 and 9–12, and Requests No. 1, 2, 7,
and 8, concerning repairs conducted on the subject vehicle and the warranty
thereon, which Defendant contends requests information not in its possession.
(Opposition at pp. 8–9.)
These topics and requests are reasonably
related to the subject matter of this litigation, and Defendant’s objections
are unpersuasive. Discovery concerning the individuals responsible for
assessing Plaintiff’s repurchase request is related to Plaintiff’s warranty
claims. Likewise the topics of examination and requests concerning TSBs and
recalls are limited to those applicable to the subject vehicle. Moreover, even
though Defendant contends that it is not the party most knowledgeable
concerning repairs made to Plaintiff’s vehicle, because Plaintiff’s claims are
directed against Defendant, Plaintiff may seek to obtain information concerning
Defendant’s knowledge thereof.
Accordingly, the motion to
compel deposition as to Defendant’s person most knowledgeable is GRANTED.
This leaves Plaintiff’s motion
to compel the deposition of the customer service representatives associated
with Plaintiff’s case number, which Plaintiff noticed on September 2, 2022, to
take place on September 16, 2022. (Galaviz Decl. ¶ 3.) Defendant served
objections and did not appear for the deposition. (Galaviz Decl. ¶¶ 3–5.)
Defendant in opposition argues
that the customer service representatives who handled Plaintiff’s claim are not
its agents, employees, or managing agents, but work for a separate company.
(Opposition at p. 4.) Accordingly, Defendant argues the deposition notice
impermissibly seeks to have Defendant produce as a witness individuals who are
not Defendant’s “officer, director, managing agent, or employee.” (Opposition
at p. 5; Code Civ. Proc. § 2025.280, subd. (a).)
Plaintiff in reply does not
argue that the customer service representatives to be deposed are in fact
Defendant’s employees, but rather argues that Defendant has an operating
agreement with the company that employees them, which might, Plaintiff
suspects, allow Defendant the authority to produce the witnesses for
deposition. (Reply at p. 2.) But Plaintiff provides no evidence that such
authority exists, or that, even if such authority existed, this would make the
representatives to be deposed the employees of Defendant for the purposes of
Code of Civil Procedure § 2025.280.
The motion is therefore DENIED
as to the customer service depositions.