Superior Court of California

County of Los Angeles

North Central District

Department B

heriberto aguilar,

Plaintiff,

ford motor company, et al.,

Defendants.

Case No.: 23BBCV01325

Hearing Date: July 19, 2024

[TENTATIVE] order RE:

motion to compel further responses

BACKGROUND

A. Allegations

Plaintiff Heribierto Aguilar (“Plaintiff”) alleges that on April 14, 2022, Plaintiff entered into a warranty contact with Defendant Ford Motor Company (“FMC”) regarding a 2022 Ford F150 vehicle. Plaintiff alleges that the warranty contract contained various warranties, including but not limited to the bumper-to-bumper warranty, powertrain warranty, emission warranty, etc. Plaintiff alleges that the defects and nonconformities to the warranty manifested themselves during the applicable warranty period, including but not limited to, transmission defects, infotainment defects, and climate control defects. Plaintiff alleges that Defendant failed to promptly replace the vehicle or make restitution.

Plaintiff alleges that he delivered the subject vehicle to Defendant Galpin Ford (“Galpin”) for substantial repairs on at least one occasions. Plaintiff alleges that Galpin had a duty to use ordinary skill in storage, preparation, and repair of the subject vehicle, but Galpin breached its duty.

The complaint, filed February 5, 2024, alleges causes of action for: (1) violation of Civil Code, § 1793.2(D); (2) violation of Civil Code, § 1793.2(B); (3) violation of Civil Code, § 1793.2(A)(3); (4) breach of the implied warranty of merchantability (Civil Code, §§ 1791.1, 1794, and 1795.5); (5) fraudulent inducement – concealment; and (6) negligent repair against Galpin.

B. Motions on Calendar

On April 22, 2024, Plaintiff filed a motion to compel FMC’s further responses to Requests for Production of Documents, set one (“RPD”).

On July 8, 2024, FMC filed an opposition brief.

On July 10, 2024, Plaintiff filed reply papers.

EVIDENTIARY OBJECTIONS

With the reply brief, Plaintiff submitted evidentiary objections to FMC’s opposition evidence. The Court rules as follows:

· Declaration of Erich Kmenitz: The objection to the entirety of the declaration is overruled. For the purposes of the motion to compel further responses, the objection nos. 1-19 are overruled.

· Declaration of Jodi Schebel: The objection to the entirety of the declaration is overruled. For the purposes of the motion to compel further responses, the objection nos. 1-23 are overruled.

DISCUSSION

Plaintiff moves to compel Defendant’s further responses to RPD Nos. 1, 3, 12, 15, 17, 19, 30, 35, 38, 41, 43, 44, 54-56, 66, 67, 71, 74-78, 80, and 81. Plaintiff argues that the RPDs seek different categories of documents regarding: (1) the subject vehicle (Nos. 1, 3, 12, and 15); (2) internal knowledge and investigation discovery (Nos. 17, 19, 30, 35, and 38); (3) summary documents and information (e.g., Power Point presentations, summaries, evaluations, reports, memoranda, meeting minutes, etc.) and deposition documents regarding these documents (Nos. 41, 43 and 44); (4) Policies and Procedures discovery (Nos. 54, 55, 56, 66, 67 and 71); and (5) communications with governmental agencies & suppliers (Nos. 74, 75, 76, 77, 78, 80 and 81).

RPD No. 1 seeks all documents regarding the subject vehicle in FMC’s database. RPD No. 3 seeks all investigation, reports, and/or studies conducted by FMC regarding the root cause or failure analysis of any parts that were repaired or replaced on the subject vehicle and returned by any of its authorized repair facilities to FMC. RPD No. 12 seeks all pre-sale or pre-purchase documents that FMC made available to purchasers or lessees concerning the disclosure of the transmission defect in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. RPD No. 15 seeks all documents including live telephone, audio, tape, voice message, caller message, and digital voice recordings; and messaging files, transcripts, emails, etc. regarding any repairs, complaints, problems, and surveys regarding the subject vehicle. FMC raised various objections on the grounds that the RPDs were overbroad, sought irrelevant documents, were privileged by the attorney-client privilege and work product doctrine, and that Plaintiff already resolved his claims through a February 2023 settlement. FMC responded that it would produce documents regarding the subject vehicle including, the factory invoice; the Owner’s Guide, Scheduled Maintenance Guide, and Warranty Guide; vehicle information report; OASIS information; communications between Ford and Ford’s Global Contact Center Technology and Global Common Quality Indicator System; Technical Service Bulletins, Special Service Messages, and General Service Bulletins; Filed Service Action history; warranty claim history information; additional warranty and non-warranty claim records; and service or repair records. Plaintiff identifies these RPDs as requests seeking information about the subject vehicle.

Plaintiff generally addresses the deficiencies of FMC’s RPD responses by addressing all of FMC’s objections in a preliminary statement and then generally arguing that FMC’s responses do not comply with the code. The documents sought in RPD Nos. 1, 3, 12, and 15 are relevant to this action as they seek documents related to the subject vehicle at issue in this action. However, it is unclear what specific documents Plaintiff claims is missing from FMC’s responses. The Court will provide limited relief such that if there are any additional documents to be produced or documents that are being withheld on the basis of privilege and/or confidentiality that concern this specific vehicle, FMC should produce a privilege log. The motion is granted to this limited extent only as to RPD Nos. 1, 3, 12, and 15.

RPD No. 17 seeks all documents concerning any internal analysis or investigations by FMC regarding transmission defects in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. RPD No. 19 seeks all documents, including ESI and emails, which contain a root cause, root cause analysis, and/or identify a probable root cause of the transmission defect in Ford vehicles (defined to mean any Ford vehicle with the 10R80 transmission). RPD No. 30 seeks all Failure Mode and Effects Analysis reports regarding the transmission defect in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. RPD No. 35 seeks all documents, including ESI and emails, concerning any decision to issue any notices, letters, campaigns, warranty extensions, service messages, technical service bulletins, and recalls, concerning the transmission defects in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. RPD No. 38 seeks all documents, including ESI and emails, concerning or relating in any way to any decision to modify the 10R80 transmission, and/or any of its component parts, in response to transmission defects in Ford vehicles from 1 year prior to Plaintiff’s purchase of the subject vehicle until the present. Plaintiff identifies these RPDs as requests seeking internal knowledge and investigation discovery.

FMC responded that it would comply with the RPDs in part as the RPDs are too broad in scope and as it denies that any transmission defect existed. FMC agreed to produce the TSBs, SSMs, and GSMs applicable to the 2022 Ford F-150 pickup trucks, FSA history for the subject pickup truck, exemplar customer letters and Dealer Bulletins for FSA 22C22 and FSA 22S71, and recall information that is available on the NHTSA website. In opposition, FMC provides the declaration of Erich Kemnitz, an Engineer in the Design Analysis Engineering Department for FMC. He states that RPD Nos. 17, 19, 30, 35, 38, 41, 43, 44, 74, 75, 76, 77, 78, 80, and 81 seek internal engineering-related information regarding the transmission in the 2022 Ford F-150 pickup trucks and that the RPDs are overbroad in their definition of “transmission defect” as there is no simple way for FMC to search for and potentially produce responsive information, and the definition lacks identification of a specific component part of the transmission. (Kemnitz Decl., ¶¶16-18.) He also states that Plaintiff requests all documents, ESI, and emails without limitation or specificity to the system, component, or part at issue and the burden to search for these documents would require hundreds of hours to locate and produce, and would result in the production of documents that are not related to Plaintiff’s concerns. (Id., ¶¶10-23.)

The Court sustains the overbreadth objection. Neither the Plaintiff’s complaint, nor its definitions in its discovery responses, sufficiently define the type of transmission defect it is claiming. Plaintiff defined the “transmission defect” to mean the 10R80 transmission of Ford F150 vehicles equipped with 10R80 transmission that can result in (1) hesitation or delayed acceleration, (2) harsh or hard shifting, (3) jerking, (4) shuddering, or juddering, (5) symptoms requiring reprogramming of the transmission control module and/or powertrain control module (“PCM”) and (6) failure or replacement of the transmission; as well as, any other similar concerns identified in the repair history for the subject vehicle. FMC argues that the definition lacks specificity as to which component parts are at issue in the transmission. The Court sustains this objection. If Plaintiff is able to more specifically define the defect he is claiming, he can propound further, more specific discovery. The motion is denied as to RPD Nos. 17, 19, 30, 35, and 38. Plaintiff should define the “transmission defect” with more specificity if he wishes to re-propound the discovery.

RPD No. 41 seeks all documents that were prepared by any of FMC’s engineers or suppliers concerning the transmission defects in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. RPD No. 43 seeks all executive summaries, summaries, reports, analyses, evaluations, or memoranda, regarding the problem with the 10R80 transmission in Ford vehicles. RPD No. 44 seeks all documents, including organizational charts of individuals, employees, officers, directors, and/or agents within FMC’s recall, quality, warranty, engineering, and/or research development department, team, committee, group, etc., from 1 year prior to Plaintiff’s purchase of the subject vehicle until the present. Plaintiff refers to these RPDs as summary documents and information (e.g., Power Point presentations, summaries, evaluations, reports, memoranda, meeting minutes, etc.) and deposition documents regarding these documents.

FMC argues that these RPDs are improper because Plaintiff’s claims were fully resolved in settlement in February 2023, the RPDs are overly broad and unduly burdensome, the RPDs seek irrelevant information, the “transmission defect” definition is overly broad, and the documents sought are privileged. By their terms, these RPDs seek documents and other materials regarding vehicles other than the subject vehicle in this case, and therefore the Court sustains the overbreadth objections. Absent some proof of a settlement of this case, the Court must overrule the objection based upon a settlement. The motion is denied as to RPD Nos. 41, 43, and 44.

RPD No. 54 seeks all documents that FMC uses or has used since 2022 to evaluate consumer requests for repurchases or replacements pursuant to the Act. RPD No. 55 seeks all documents regarding FMC’s rules, policies, or procedures since 2022 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in California under the Act. RPD No. 56 seeks all training manuals and/or other documents relating to the training given to FMC’s employees, agents, or representatives since 2022, in connection with handling consumer lemon law repurchase requests. RPD No. 66 seeks all lemon law documents published by FMC and provided to FMC’s employees, agents, and representatives. RPD No. 67 seeks all documents, including ESI, setting forth FMC’s document retention policies from 2022 to the present. RPD No. 71 seeks FMC’s recall policies and procedures. Plaintiff refers to these RPDs as discovery into FMC’s policies and procedures.

FMC responded that it would comply to the requests in part but objected that the RPDs were overbroad. FMC referred Plaintiff to the Owner’s Guide, Scheduled Maintenance Guide, and Warranty Guide for the subject vehicle and a website on California lemon law. FMC objected to the RPDs on similar grounds as above (overbroad, irrelevance, privilege, etc.).

The RPDs seeking policies and procedures are not limited to the subject vehicle or to any geographical location. They seek any and all documents FMC has used to evaluate any consumer request for repurchase or replacement, all document regarding issues of refunds, all training manuals for handling consumer lemon law repurchase requests, all lemon law documents published by FMC, etc. The documents sought are overbroad and are not limited to the subject vehicle, to any time frame, or geographical location. Thus, the Court will only grant these requests to the limited extent that any document referred to in the course of responding to the lemon law repurchase case in this case should be produced—unless there is a claim of privilege. In that case, the document(s) should be listed on a privilege log. The files of outside counsel are excluded from this requirement. To this limited extent, the motion is granted as to RPD Nos. 54, 55, 56, 66, 67, and 71 to this limited extent.

RPD No. 74 seeks all documents regarding any communications between FMC and any government agency or entity regarding transmission defects in Ford vehicles. RPD No. 75 seeks all communications with and documents provided to or received from the supplier of the 10R80 transmissions in Ford vehicles regarding an actual or suspected transmission condition, issue, problem, or defect. RPD No. 76 seeks all Early Warning Reports FMC submitted to NHTSA concerning Ford vehicles. RPD No. 77 seeks all Transportation Recall Enhancement, Accountability, and Documentation (TREAD) reports FMC submitted concerning Ford vehicles. RPD No. 78 seeks all NHTSA complaints in FMC’s possession, custody, or control that relate to transmission defects in Ford vehicles. RPD No. 80 seeks all documents that FMC provided to or received from part suppliers concerning the transmission defects in Ford vehicles equipped with the 10R80 transmission like the subject vehicle. Plaintiff refers to these RPDs as discovery involving communications with governmental agencies and suppliers.

FMC responded that it would comply with the RPDs in part but objected that the RPDs were too broad. FMC denied any transmission defect and referred Plaintiff to the FSA history for the subject pickup truck, including exemplar customer letters and Dealer Bulletins for FSA 22C22 and FSA 22S71, which were performed on the subject pickup truck, and any recall information on the NHTSA website. FMC objected to the RPDs on similar grounds as summarized above.

The same issues are present in these RPDs as discussed above. The documents sought are not limited in scope and potentially seek documents regarding any Ford vehicle that has the 10R80 transmission, regardless of whether the defect/issue complained of is the same as the issue in Plaintiff’s subject vehicle. Thus, the overbreadth objections are sustained, except that any documents that refer specifically to this vehicle should be produced. The motion is granted as to RPD Nos. 74, 75, 76, 77, 78, and 80 to this limited extent.

No sanctions were requested.

CONCLUSION AND ORDER

Plaintiff Heribierto Aguilar’s motion to compel Defendant Ford Motor Company’s further response to RPDs is granted as to RPD Nos. 1, 3, 12, 15, 54-56, 66, 67, 71, 74-78, 80, and 81 subject to the limitations as stated more fully in the Court’s written order, and denied as to RPD Nos. 17, 19, 30, 35, 38, 41, 43, and 44. Defendant is ordered to provide further response within 30 days of notice of this order.

Plaintiff shall provide notice of this order.

DATED: July 19, 2024 ___________________________

John J. Kralik

Judge of the Superior Court