Judge: John C. Gastelum, Case: 2021-01236119, Date: 2023-07-18 Tentative Ruling
1) Motion to Compel Further Responses to Special Irogs (2) Motion to Compel Production (3) CMC
Tentative Ruling: (1) Plaintiff, Katrina Gubbels, moves for an order compelling Defendant, Ford Motor Company, to provide further responses to Plaintiff’s First Set of Special Interrogatories, Nos. 4-7, 9-11, and 13-17, within 20 days of the Court’s Order.
The Joint Statement filed by Defendant on July 5, 2023 indicates these special interrogatories are no longer at issue, and Plaintiff will agree to withdraw the motion as to these discovery requests without prejudice as to seeking further relief following receipt of Defendant’s supplemental responses. (See ROA 104, Joint Statement, 2:24-3:4.)
Based on the foregoing, the Court VACATES the motion to compel as to Plaintiff’s First Set of Special Interrogatories.
(2) Plaintiff, Katrina Gubbels, moves for an order compelling Defendant, Ford Motor Company, to provide further responses to Plaintiff’s First Set of Requests for Production (“RFP”), Nos. 14-24 and 27-28, within 20 days of the Court’s Order.
The Joint Statement indicates that RFP, Nos. 14-16, 21-24, and 27-28 are no longer at issue. (See ROA 104, Joint Statement, 2:24-3:4.)
Accordingly, only RFP, Nos. 17-20 are still at issue. The Motion is GRANTED as to these requests as follows.
A demanding party may move for an order compelling a further response to a demand for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).)
A motion to compel further responses to a request for production “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1).) For a request to produce documents, “a party who seeks to compel production must show ‘good cause’ for the request . . . but where, . . . , there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) If the moving party demonstrates good cause, then the opposing party must justify any objections. (Kirkland v Superior Court (2002) 95 Cal. App. 4th 92, 98.)
RFP Nos. 17-20
The RFPs at issue seek all email communications discussing possible countermeasures in response to the COOLING SYSTEM DEFECT in FORD VEHICLES (RFP 17); all emails discussing said defect in said vehicles from the email address used by David J. Johnson (RFP 18), by Michael Steven Parr (RFP 19), and by Frank Abkenar (RFP 20).
In response to RFP Nos. 17-20, Ford stated it would not comply and objected on the grounds that they were overly broad, unduly burdensome, seeks irrelevant information because it is not limited to the Subject Vehicle, the allegations in the complaint, the Subject Vehicle’s concerns contained in Plaintiff’s repair or service records, and does not describe the documents with reasonable particularity. Ford also objected on the grounds of attorney-client privilege and the work product doctrine. For RFPs seeking emails, Ford objects that such requests seek all emails without any limitation.
Good Cause, Relevance, Overbroad
The First Amended Complaint (“FAC”) asserts violations of the Song-Beverly Consumer Warranty Act and two causes of action for fraud as well as seeks punitive damages. (FAC, ¶¶ 35-75, Prayer for Relief, ¶ 4.) Plaintiff also seeks civil penalty damages under Civil Code section 1794(c) or (e). (FAC, ¶¶ 21, 22, 29, Prayer for Relief, ¶ 3.)
The FAC alleges that the Subject Vehicle, a 2019 Ford Escape, VIN: 1FMCU0GD0KUA20413, was equipped with Ford’s 1.5L EcoBoost engine; that Ford gave Plaintiff an express written warranty wherein Ford undertook to preserve or maintain the utility or performance of the Subject Vehicle or provide compensation if there was a failure in utility or performance, and that during the warranty period, the Subject Vehicle “contained and/or developed defect(s) which manifested in symptoms including but not strictly limited to, engine overheating; loss of coolant; coolant leaks; activation of diagnostic trouble codes (‘DTCs’) P0300, P0301-P0304, P0316, P0217, P1285 and/or P1299; coolant intrusion into the engine cylinders; rough running; and/or white exhaust smoke (hereinafter referred to as the ‘Cooling System Defect’).” (FAC, ¶¶ 4-8.) The FAC also alleges that Plaintiff presented the Subject Vehicle for repairs to the Cooling System Defect to Ford’s authorized repair facility and that the authorized repair facility was unable to repair the Subject Vehicle within a reasonable number of opportunities. (FAC, ¶ 9.)
Discovery relating to customer complaints concerning defects in other vehicles and for other model years have been permitted. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 976-978 [trial court affirmed discovery referee’s order directing Bentley to produce documents relating to odor complaints concerning four-door Bentley vehicles in model years 1999-2003, and all documents regarding the origin of the odor problem, among other things, where plaintiff purchased a new 2001 Bentley Arnage automobile that had an “obnoxious odor”].)
RFP Nos. 17-20 seek information that is relevant to prove Plaintiff’s allegations and claims. Regardless of whether the documents themselves are admissible, they are discoverable.
However, the definition of “COOLING SYSTEM DEFECT” is overbroad as it appears to include symptoms that were not exhibited by the Subject Vehicle, and in turn, appears to encompass documents that are not relevant to the Subject Vehicle and this action.
Plaintiff submits evidence of three repair visits relating to the alleged “COOLING SYSTEM DEFECT”: (1) on 2-8-20 to perform a 19B37 recall; (2) on 6-14-21 for complaints including that the check engine light came on and that there was shaking. The comments indicate there was activation of DTCS P0302 and P0316 as well as coolant intrusion into the engine cylinders, and that TSB 20 2100 was found; and (3) on 7-1-22 there was an undocumented complaint that the coolant level was low. Ford submits evidence of the Warranty Claim History Guide for the Subject Vehicle which indicates supports the latter two (2) repairs. (Ex. 1 to Lee Decl.)
In reply, Plaintiff submits a supplemental declaration of Larry W. Chae which provides new evidence of a repair visit on December 30, 2022, wherein Plaintiff expressed concern about low coolant level which was confirmed. (Supplemental Declaration of Larry W. Chae, ¶ 3, Ex. 21, ROA 96.) As this is responsive to arguments made in the opposing papers, this evidence is considered. Thus, the definition of “Cooling System Defect” should also include “loss of coolant,” or “low coolant level.”
Thus, despite the allegations in the FAC, the evidence submitted indicates that Plaintiff’s concerns identified in the repair history for the Subject Vehicle included symptoms of loss of coolant or low coolant level, activation of DTCs P0302 and P0316, and coolant intrusion into the engine cylinders.
Based on the foregoing, the RFPs, as phrased, are overbroad and the definition of “COOLING SYSTEM DEFECT” is modified to be limited defect(s) which manifest in symptoms including loss of coolant, low coolant level, activation of DTCs P0302 and P0316, and/or coolant intrusion into the engine cylinders.
Plaintiff shows good cause for the documents sought by RFP Nos. 17-20, based on the definition of the term “COOLING SYSTEM DEFECT” as modified.
Undue Burden
Counsel for Ford submits a declaration of John Isaac Southerland, whose firm represents Ford in litigation throughout the United States and serves as discovery counsel in consumer cases in which Veracis Law Corporation represents the plaintiff. (Declaration of John Isaac Southerland, ¶¶ 5, ROA 84.) Attorney Southerland provides that he has assisted Ford in searching for, reviewing, and producing documents in response to discovery requests similar to those set forth in RFP 14-20, and that based on his experience which includes assisting Ford in searching, reviewing, and producing documents in response to discovery requests similar to the foregoing requests, searches that broadly relate to vehicle concerns, or complaints or symptoms as described in these RFPs will be unreasonable voluminous; that Plaintiff seeks emails and individual ESI which are not located in a single, centralized database that is easily accessible or searchable and that conducting a search beyond certain databases will require “a considerable amount of time and effort.” (Id., ¶¶ 12-18.) Attorney Southerland provides that it would likely take Ford anywhere from 50-100 hours at the cost of $10,000 to $20,000 assuming and average rate of $200/hour to comply with RFP Nos. 14-20. (Id., ¶¶ 20-21.)
While the foregoing demonstrates some burden, it does not appear to be overly burdensome, particularly in light of the revised definition of “COOLING SYSTEM DEFECT.” Thus, the objection of undue burden is overruled.
Privilege Log
Despite Ford’s assertions of the attorney-client privilege and work product doctrine, no privilege log appears to have been produced. When a responding party asserts claims of privilege or attorney work product protection, the responding party must provide sufficient factual information to enable the parties and the court to evaluate the merits of a claim, including, if necessary, a privilege log. (Code Civ. Proc., § 2031.240(c)(1); Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772.)
The motion is GRANTED as to RFP Nos. 17-20, including the production of a privilege log. Further verified responses are due within 30 days of the notice of ruling.
Plaintiff to give notice.