Judge James L. Crandall, Case 20-1154815 2023-01-05 Tentative Ruling

Judge: James L. Crandall, Case: 20-1154815, Date: 2023-01-05 Tentative Ruling

1. Motion for Leave to File Cross Complaint

2. Motion to Compel Deposition

3. Motion to Compel Response to Special and Form Interrogatories

MOTION NO. 1:

Defendant Ford Motor Company’s (“Ford”) motion for leave to file a cross-complaint adding three cross-defendants: York Enterprises South, Inc. dba Huntington Beach Ford (“Huntington Beach Ford”); Tap Worldwide, LLC (“Tap Worldwide”); and Dealer Services International (“DSI”) is GRANTED.

Ford’s Objections to Declaration of plaintiff Jim O. Whitworth are SUSTAINED as to Objections Nos. 1, 2 and 4 and OVERRULED as to Objection No. 3.

New evidence submitted with Reply:

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.) However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. (Id. at 1538 [“[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners’ opposition.”]

Here, Defendants have submitted with their Reply an additional declaration of Cynthia Y. Sun. The evidence submitted with the Reply responds to Plaintiff’s argument in the Opposition to the Motion that granting the Motion will prejudice Plaintiff because the Subject Vehicle is non-operational, therefore, the Court will consider this evidence in ruling on the Motion.

Merits:

A defendant can cross-complaint against a codefendant or third party if the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc. §428.10(b).)

“Cross complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38-39.) This is because “[a]n indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrences or series of occurrences as asserted by the plaintiff.” (Id., at 39.)

If the proposed cross-complaint is permissive, leave of court may be granted “in the interests of justice” at any time during the course of the action. (Code Civ. Proc., § 428.50(c).)

Here, Ford’s proposed cross-complaint is for equitable indemnity against codefendant Huntington Beach Ford and third parties Tap Worldwide and DSI. Ford’s proposed cross-complaint is therefore permissive. The claims are related to the claims alleged by Plaintiff in his Complaint. Given that Ford intends to pursue indemnity claims against Huntington Beach Ford; Tap Worldwide; and DSI, it would be an efficient use of judicial and party resources to have both complaints litigated in the same case.

Plaintiff argues that the Motion should be denied because Ford has been aware of the aftermarket modifications to the Subject Vehicle for at least 18 months. Ford does not dispute that it had knowledge of the existence of aftermarket party but contends that it did not discover the identities of any aftermarket companies until approximately January 2022. (Sun Decl., ¶ 29.) Ford further states that it attempted to glean information about the aftermarket parts by Plaintiff via written discovery, but that it was ultimately forced to issue deposition subpoenas to three aftermarket companies who provided parts or services for the Subject Vehicle. (Sun Decl., ¶ 29.) On March 17, 2022, a subpoena was issued for Tap Worldwide and on April 13, 2022, Ford subpoenaed records from DSI. (Sun Decl., ¶¶ 30, 31.) Tap Worldwide and DSI produced documents in response to Ford’s subpoena on April 27, 2022. (Sun Decl., ¶ 32.) Ford also issued a subpoena for deposition and request for production of documents on DSI and Wheel Pros, LLC on October 10, 2022. (Sun Decl., ¶ 33.) On November 18, 2022, Ford’s counsel engaged in a telephonic conversation with counsel for Wheel Pros and DSI, who provided new information regarding the installation of aftermarket parts on the Subject Vehicle. (Sun Decl., ¶ 34.) Specifically, Ford argues it discovered that DSI’s policies and procedures require dealerships such as Huntington Beach Ford to disclose to Plaintiff that the installation of aftermarket parts can affect the condition of the vehicle, including but not limited to the suspension before the sale of the vehicle by having Plaintiff sign documents acknowledging this. One of those documents is the DSI Disclosures. (Sun Decl., ¶ 35, Ex. B.) However, Ford states that Huntington Beach failed to have Plaintiff execute the DSI Disclosures. (Sun Decl., ¶ 36.) Plaintiff was also supposed to execute documents acknowledging that the aftermarket parts came with their own express warranty but did not. (Sun Decl., ¶ 37.) Ford argues that it is possible that some or all the nonconformities Plaintiff alleges were covered under Ford’s express warranty should have been covered under the warranty for the aftermarket parts but were not and that the aftermarket parts installed by DSI and TAP Worldwide may have voided Cross-Complainant’s express warranty. (Sun Decl., ¶ 38-39.) Therefore, Ford has sufficiently shown that it did not have reason to seek indemnity against Huntington Beach Ford or DSI until recently.

Plaintiff also argues that granting this Motion will prejudice Plaintiff who is without the use of the Subject Vehicle. (Fatone Decl., Ex. D.) Specifically, Plaintiff states that “[c]urrently the truck does not run and was towed back from Mammoth when Ford refused to tow it to a dealer for repair.” (Fatone Decl., Ex. D.) Ford disputes that the Subject Vehicle is non-operational and has shown that on November 7, 2022, at a second vehicle inspection Ford’s expert witness test drove the subject vehicle for over 18 miles. (Sun Decl., ¶¶ 3, 6.) Accordingly, Plaintiff has not sufficiently shown prejudice.

Based on the foregoing, the Motion is GRANTED.

The court orders Ford to file the proposed Cross-Complaint within 7 days of the date of the hearing.

Moving Defendant to give notice.

MOTION NO. 2:

Defendant Ford Motor Company’s (“Ford”) motion for issue and evidentiary sanctions, or in the alternative, an Order compelling further deposition testimony of Plaintiff Jim O. Whitworth and compelling the production of responsive documents is CONTINUED to 03/09/2023.

Ford moves pursuant to Code of Civil Procedure Section 2025.480, subdivision (a).

Code of Civil Procedure Section 2025.480 provides in pertinent part: “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

Section 2016.040 states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Timeliness: Ford’s counsel was notified by the court reporter that the transcript for Plaintiff’s deposition was ready on September 23, 2022. (Sun Decl., ¶ 52, Ex. B.) The Motion was filed on 11/22/22 and is timely.

Meet and Confer:

The rule requiring a good faith effort to meet and confer about discovery disputes “is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . [t]his, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal. App. 4th 1431, 1439.) “A determination of whether an attempt at informal resolution is adequate also involves the exercise of discretion. The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal. App. 4th 424, 431.) “A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution, especially when a legitimate discovery objective is demonstrated. The time available before the motion filing deadline, and the extent to which the responding party was complicit in the lapse of available time, can also be relevant. An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered.” (Id. at 432.)

Ford has failed to demonstrate that it made a good faith attempt at an informal resolution of the issues presented by the Motion. Ford’s effort to meet and confer was limited to a single letter. Specifically, on October 20, 2022, Plaintiff’s counsel sent a meet and confer letter to Plaintiff’s counsel in an attempt to resolve the issues informally. (Sun Decl., ¶ 53, Ex. C.) Plaintiff’s counsel responded to the letter on October 27, 2022. (Sun Decl., ¶ 54, Ex. D.) In the letter, Plaintiff requested that Ford “provide a list of specific questions to which it feels it is entitled, and the corresponding section within the deposition transcript where the question was asked an no response (or an inadequate response) was provided; and a list of documents FMC seeks that has not already been provided.” (Sun Decl., ¶ 54, Ex. D.) Defendant had sufficient time available before the filing deadline to respond to the letter, however, instead of responding to the meet and confer letter and continuing attempts at informal resolution of the issues raised by the Motion, on November 22, 2022, Ford’s counsel filed the instant Motion.

The parties are ORDERED to further meet and confer telephonically regarding the issues raised in the Motion within 15 days of the notice of this order. The parties are to file a joint statement of items still in dispute and their respective positions at least 5 court days prior to the continued hearing. No other briefing is permitted.

Moving Defendant to give notice.

MOTION NO. 3:

Plaintiff Jim O. Whitworth’s motion to compel defendant Ford Motor Company (“Ford”) to provide responses without objection to Plaintiff’s (1) Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One; and (2) Form Interrogatories, Set Two; Requests for Admission, Set Two is GRANTED, in part, and DENIED as MOOT, in part.

Ford’s Evidentiary Objections to the Declaration of Timothy F. Fatone are SUSTAINED.

New evidence submitted with Reply:

1538 [“[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners’ opposition.”]

Here, Plaintiff has submitted with his Reply a supplemental declaration of Timothy Fatone, declaration of Christy E. Holliday and a declaration of plaintiff Jim O. Whitworth. The evidence submitted with the Reply responds to Ford’s argument in the Opposition to the Motion that the Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One were never served on Ford. Therefore, the Court will consider this evidence in ruling on the Motion.

Plaintiff’s First Set of Discovery Requests:

Plaintiff moves to compel Ford to provide responses to Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One.

Ford disputes that Plaintiff served the First Set of discovery requests on Ford.

“Pursuant to Evidence Code section 641 (‘A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.’) this declaration created a rebuttable presumption the notice had been received in the ordinary course of mail. [¶] Evidence Code section 604 prescribes the effect of such a rebuttable presumption: ‘The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its non-existence, in which case the trier of fact shall determine the existence or non-existence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.’ (Italics added.)” (Bonzer v. City of Huntington Park (1993) 20 Cal. App. 4th 1474, 1479.)

In support of his Reply, Plaintiff has submitted a declaration of Christy E. Holliday, a paralegal for the Law Offices of Jim O. Whitworth, in which Holliday avers that on September 11, 2020, she placed the First Set of Form Interrogatories, Special Interrogatories, Inspection Demands and Requests for Admission in a United States Post Office mailbox addressed to Ford Motor Company c/o CT Corporation, Ford’s authorized agent. (Holliday Decl., ¶ 5.) Plaintiff has also submitted a declaration in support of his Reply in which he states that on September 11, 2022, he asked his paralegal, Holliday, to finalize and send discovery in this matter. (Plaintiff’s Decl., ¶ 7.)

Ford disputes that Plaintiff served the First Set of discovery requests on Ford. In support of its contention, Ford has submitted a declaration of Alexandre C. Halow, a Representation Services Advisor for C T Corporation System (“CT”). CT is a registered agent for service of process for Ford. (Halow Decl., ¶ 3.) Halow avers that after a reasonable and diligent search, she has not found any record of CT receiving Plaintiff’s Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One. (Halow Decl., ¶ 5.)

Although Ford disputes that it received the First Set of discovery requests, Plaintiff has shown that during Plaintiff’s deposition,

Ford’s counsel appeared to be aware of the first set of written discovery was served on Plaintiff. (Supp. Fatone Decl., ¶ 5, Ex. B.) Specifically, the deposition transcript shows:

Q: Okay. Am I correct that before Mr. Fatone took over you had prepared the Complaint, the initial set of written discovery to Ford, as well as a request for default against Ford?

A: I don't remember that. Was there a default? I don't remember.

(Supp. Fatone Decl., ¶ 5, Ex. B.) Ford’s counsel’s question during Plaintiff’s deposition shows that Ford was aware of the First Set of discovery requests served on Ford.

Based on the foregoing, Plaintiff has sufficiently shown that Plaintiff served the Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One on Ford. Ford did not provide any responses to the discovery requests; therefore, the Motion is GRANTED to the extent it seeks to compel Ford to provide responses to Plaintiff’s Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One.

Ford is ORDERED to serve responses to Plaintiff’s Form Interrogatories, Set One; Special Interrogatories, Set One; Inspection Demand, Set One; Request for Admission, Set One within 20 days of the notice of this ruling.

Plaintiff’s Second Set of Discovery Requests:

Plaintiff moves to compel Ford to provide responses to Form Interrogatories, Set Two and Requests for Admission, Set Two.

Ford has demonstrated that it timely served responses to the Form Interrogatories, Set Two and Requests for Admission, Set Two on April 26, 2022 and thereafter provided verifications on May 4, 2022. (Sun Decl., ¶¶ 10-11, Exs. 3-7.)

In his Reply, Plaintiff concedes that FMC did in fact provide responses to Plaintiff’s Form Interrogatories, Set Two and Requests for Admission, Set Two. (Supp. Fatone Decl., ¶ 2.)

To the extent Plaintiff seeks to compel a response to Form Interrogatories, Set Two and Requests for Admission, Set Two, the Motion is DENIED as MOOT.

Plaintiff to give notice