Judge: Gregory Keosian, Case: 22STRCV36090, Date: 2023-09-05 Tentative Ruling

Case Number: 22STRCV36090    Hearing Date: September 5, 2023    Dept: 61

Plaintiff Shere Murray’s Motion to Compel Further Responses to Requests for Production from Defendant FCA US LLC is GRANTED.

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.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) 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.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 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 Shere Murray (Plaintiff) seeks further responses to requests for production No. 16–21 propounded upon Defendant FCA US, LLC. These requests sought documents related to Defendant’s internal analysis, communications, failure rates, and other information related to alleged defects in vehicles of the same year, make, and model as the subject vehicle. Defendant responded only with objections. (Separate Statement.)

Defendant in opposition argues that supplemental responses have been provided with its opposition, that Plaintiff failed to wait before filing the present motion to allow Defendant to serve its supplemental response, and that the motion is now moot. (Opposition at pp. 2–7.) Plaintiff in reply argues that the motion is not moot, as Defendant has only provided a non-working link to document production, not supplemental responses. (Reply at pp. 6–7.)

Further responses are required. The requests are supported by good cause, as they concern Defendant’s knowledge of the defects contained in the subject vehicle, and thus the willfulness of its alleged warranty violations. 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.

Defendant’s contention that the motion is now moot is without merit, as the claimed supplemental responses are not in fact supplemental responses — consisting of statements of compliance, inability to comply, or objections (See Code Civ. Proc. § 2031.210) — but has only provided a link to a “supplemental production of documents referenced in FCA US LLC’s response letter.” (Opposition Exh. D.)

Nor is there merit to Defendant’s argument with respect to the failure to meet and confer. Defendant represented on June 28, 2023, that “supplemental responses” would be provided within seven days. (Opposition Exh. C.) The motion was filed on July 6, 2023, beyond that time. No supplemental responses have since been provided, and the production that Defendant now offers was only served with the opposition on August 22, 2023.

The motion is therefore GRANTED.