Superior Court of California

County of Los Angeles

North Central District

Department B

oscar ochoa,

Plaintiff,

american honda motor co., inc., et al.,

Defendants.

Case No.: 23BBCV02095

Hearing Date: April 26, 2024

[TENTATIVE] order RE:

motion to compel further responses to request fcor production, set one

BACKGROUND

A. Allegations

Plaintiff Oscar Ochoa (“Plaintiff”) alleges that on March 31, 2022, he purchased a 2019 Honda HR-V, which was a certified pre-owned (“CPO”) purchase that was accompanied by Defendant American Honda Motor Co., Inc.’s (“AHM”) new and full CPO warranty, such that the vehicle constitutes a “new motor vehicle” under the Act. Plaintiff alleges that the causes of action arise out of the warranty and repair obligations of AHM in connection with the vehicle for which AHM issued a written warranty. Plaintiff alleges that the subject vehicle was delivered with serious defects and nonconformities to the warranty, including electrical and transmission system defects. Plaintiff alleges that he presented the vehicle for repairs in July 2022 for the vehicle’s mileage gauge malfunctioning, October 2022 for an inoperative phone charger, February 2023 for the vehicle intermittently not accelerating faster than 40 mph, in May 2023 for the vehicle not accelerating and having difficulty shifting, and in June 2023 for the vehicle losing power at speeds higher than 55 mph and not accelerating. Plaintiff alleges that he hereby revokes acceptance of the sales contract.

The complaint, filed September 12, 2023, alleges causes of action for: (1) violation of the Song Beverly Act – breach of express warranty against AHM; (2) violation of the Act – breach of implied warranty against AHM; (3) violation of the Act, section 1793.2(b) against AHM AHM and (4) negligent repair against Defendant Keyval, Inc. dba Keyes Honda (“Keyes”).

B. Motion on Calendar

On February 21, 2024, Plaintiff filed a motion to compel further responses to request for production, set one (“RPD”), set one, Nos. 1-31 from Defendant AHM.

On April 15, 2024, Defendant filed an opposition brief.

On April 22, 2024, Plaintiff filed a reply brief.

DISCUSSION

Plaintiffs move to compel AHM’s further responses to RPD Nos. 1-31. RPD Nos. 1-14 relate to the subject vehicle; Nos. 15-22 relate to AHM’s policies and procedures for handling Song-Beverly cases; Nos. 23-29 relate to AHM’s warranty policy and procedure for handling; and Nos. 30-31 are regarding similar customer complaints.

RPD No. 1 seeks all documents regarding the subject vehicle that are within AHM’s Customer Relations Center. RPD No. 13 seeks all documents which evidence, describe, refer, or relate to any contact or communications between AHM and Plaintiff. RPD No. 14 seeks all documents which evidence, describe, refer, or relate to any contact or communications with any third-parties relating to the subject vehicle. AHM objected that the RPDs are vague and overly broad, fail to describe with reasonable particularity the documents requested, and seek confidential/proprietary/trade secret information. Without waiving objections, AHM stated that it would produce documents within its possession, custody, or control to which no objection is being made and will produce the CRRS Report, which should be subject to a protective order. The requests are not overly broad or vague as asked and seek documents related to the subject vehicle at issue in this action. The objections are overruled. The motion is granted as to RPD Nos. 1, 13, and 14. If there are other documents that exist responsive to these RPDs, they should be produced subject to a protective order or a privilege log should be produced. Documents created by defense attorneys or direct communications to and from defense attorneys are excluded from this requirement.

RPD No. 2 seeks all documents which evidence, support, refer, or relate to each affirmative defense in the answer. RPD No. 3 seeks all documents which evidence, describe, refer, or relate to any inspection of the subject vehicle. RPD No. 4 seeks all documents that refer or relate to all repair orders pertaining to the subject vehicle in AHM’s possession, custody or control. RPD No. 5 seeks all documents, including manuals, and express warranty booklets provided to consumers with respect to the purchase or lease of the subject vehicle.

AHM objected to RPD Nos. 2-5 on the same grounds as No. 1 and also on the grounds that the RPDs seek documents that are protected by the attorney-client privilege, attorney work product doctrine, and the right of privacy. AHM responded without waiving objections that it will produce non-privileged documents applicable to the subject vehicle during Plaintiff’s ownership, including (in whole or a combination of the following documents depending on the RPD request): Keyes’ service records and the non-confidential portion of the service records received from Woodland Hills Honda and Honda of North Hollywood, business entities separate from and independent of AHM, the non-confidential Warranty History, a copy of the 2019 Honda HR-V Warranty Booklet, a copy of the 2019 Honda Consumer Information Booklet, a copy of the 2019 Honda HR-V Owner's Manual, Traffic Documents, Warranty Registration, confidential Warranty History, CRRS Report, and the confidential portion of the service records received from Woodland Hills Honda and Honda of North Hollywood, subject to a protective order. It appears that AHM has made a thorough production of the documents and it is unclear what documents Plaintiff is claiming are missing. However, to the extent that documents have been withheld based on the objections or privilege, the Court will order documents to be produced subject to a protective order or a privilege log being produced. Documents created by defense attorneys or direct communications to and from defense attorneys are excluded from this requirement. The motion is granted as to RPD Nos. 2-5.

RPD No. 6 seeks all documents which evidence, describe, refer, or relate to any Retail Installment Sale Contracts and/or Lease Agreements, including any associated documents reflecting OEM or aftermarket installed parts, service contracts, and any other writings signed by the Plaintiff, in connection with the subject vehicle. AHM objected to the RPD, but stated without waiving objections, that it was unable to comply with the request. It states that after making a diligent search and reasonable inquiry in an effect to comply with the RPD, it has no documents responsive to the request and believes and responsive documents would be in the possession of the selling dealer. The responses are partially compliant with CCP § 2031.230, which states: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” However, the response does not state whether the document never existed, was misplaced, has never been in its possession, etc. and the name and address of the organization believed by AHM to have the document requested. As such, a further response will be required for RPD No. 6.

RPD No. 7 seeks all documents that refer or relate to all diagnostic trouble codes that are electronically stored by AHM or its authorized repair facility as result of any inspections or repairs conducted on the subject vehicle. RPD No. 8 seeks all documents, including recalls, technical service bulletins, and dealer advisories that were issued for the subject vehicle. RPD No. 12 seeks all photographs or videotapes of the subject vehicle taken by AHM or its authorized repair facility. AHM similarly objected to these RPDs similarly as it did to RPD No. 6, but AHM responded that no such documents responsive to the RPDs exist or have ever existed. This response is code compliant. Thus, the motion is denied as to RPD Nos. 7, 8, and 12.

RPD No. 9 seeks all documents that refer to or relate to any contact or communication between AHM or its authorized repair facility regarding the subject vehicle. RPD No. 10 seeks all documents that refer to or relate to any summaries of all warranty repairs performed on the subject vehicle. RPD No. 11 seeks all documents that refer to or relate to any summaries of all amounts paid by AHM for warranty repairs performed on the subject vehicle. AHM objected to the RPDs and responded, without waiving responses that it would produce the confidential Warranty History, subject to an appropriate protective order. As discussed above, the objections are overruled. To the extent that AHM has documents within its custody, possession, or control, it should produce the documents. The motion is granted as to RPD Nos. 9-11, such that documents should be produced subject to a protective order or a privilege log should be produced. Documents created by defense attorneys or direct communications to and from defense attorneys are excluded from this requirement.

RPD No. 15 seeks all documents which evidence, describe, refer, or relate to AHM’s rules, policies, or procedures since 2017 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Song-Beverly Consumer Warranty Act. AHM objected to the RPD and responded, without waiving objections, that it has made a diligent search and reasonable inquiry in an effort to comply with the RPD and has no written policies and/or procedures during the identified time period concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Act, and no such documents have ever existed because it evaluates claims under the Act in good faith on a case-by-case basis. Here, AHM’s response is code compliant as it states that no documents have ever existed. AHM cannot be ordered to produce documents that do not exist. As such, the motion is denied as to RPD No. 15.

RPD No. 16 seeks all documents which evidence, describe, refer, or relate to AHM’s Call Center Policies and Procedures for escalating customer complaints relating to any defects present in their vehicle. AHM objected similarly as above and stated that it is unable to comply with the request for similar reasons as No. 15 as no documents have ever existed. However, it responded that in the interest of cooperation and though not technically responsive to the RPD, it would produce guideline documents entitled “Lemon Law Inquiries,” “Early Warning,” and “Attorney Involved” subject to a protective order. For the same reasons as RPD No. 15, the motion is denied as to RPD No. 16.

RPD No. 17 seeks all documents which evidence, describe, refer, or relate to AHM’s Call Center Policies and Procedures for creating a Service Activity in response to customer complaints relating to any defects present in their vehicle. RPD No. 18 seeks all documents which evidence, describe, refer, or relate to AHM’s Policies and Procedures for determining whether a vehicle should be repurchased or replaced under the Act. RPD No. 19 seeks all documents which evidence, describe, refer, or relate to any flow charts used by AHM for the purpose of escalating customer complaints. RPD No. 20 seeks all documents which evidence, describe, refer, or relate to any flow charts used by AHM for the purpose of evaluating whether a vehicle qualifies for repurchase or replacement under the Act. RPD No. 21 seeks all documents evidencing and/or describing AHM’s training materials related to its policy regarding how to calculate a repurchase. RPD No. 22 seeks all documents referencing, evidencing, and/or relating to any policies or procedures followed by its Customer Relation Center to advise customers to deliver their vehicles to its authorized repair facilities for further diagnosis or repair instead of offering a repurchase or replacement of the vehicle under the Act. AHM objected to the RPDs and responded without waiving objections that it could not comply with the requests because it has no written policies for creating a “Service Activity,” has no written policies/procedures to determine whether a vehicle should be repurchased or replaced under the Act, does not have flow charts, etc. It states that no such documents have ever existed. For the same reasons as above, the motion is denied as to RPD Nos. 17-22.

RPD No. 23 seeks any document that refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities with respect to how to determine whether repairs should be covered under warranty from 2017 to the present. RPD No. 24 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities with respect to whether repairs should be covered under warranty as “goodwill” from 2017 to the present. RPD No. 25 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities with respect to repeated repair visits for similar complaints by the consumer from 2017 to the present. RPD No. 26 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities on what type of repairs require approval by YOU in order to cover the repair under warranty from 2017 to the present. RPD No. 27 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities on the length for test drives on certain customer complaints to be covered under warranty from 2017 to the present. RPD No. 28 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities on what type of repairs will not be reimbursed by YOU as warranty repairs from 2017 to the present. RPD No. 29 seeks any document which refers or relate to AHM’s Warranty Policy and Procedure Manuals provided to its authorized repair facilities on how to handle customer concerns that are not duplicated at the time of the repair visit from 2017 to the present.

AHM objected to RPD Nos. 23-29 and responded that pursuant to a diligent search and reasonable inquiry, it has no automotive "Warranty Policy and Procedure Manual" provided to authorized Honda repair facilities and no such manual has ever existed in its possession, custody, and control. Although it was not a “Warranty Policy and Procedure Manual,” AHM offered to produce a copy of various sections of its 2021-2023 Service Operations Manual, directed to warranty repair, subject to an appropriate protective order in response to Nos. 23, 25, and 28. Although AHM objected to the RPDs, it also responded that no such documents existed and that it would produce a different type of document in the spirit of cooperation. However, if no responsive document exists, then AHM’s responses are code compliant. The motion is denied as to RPD Nos. 23-29.

RPD No. 30 seeks all documents in the form of a list or compilation, of other Customer Complaints in AHM’s electronically stored information of database(s) that are substantially similar to complaints made by Plaintiff with respect to the subject vehicle in other 2019 Honda HRV vehicles. (“Substantially similar” is defined by Plaintiff to mean similar customer complaint that would be the same nature of the reported system, malfunction, trouble code, TSB Recommendation, dashboard indicator light, or other manifestation of a repair problem, as description listed in any warranty summary or repair order for the subject vehicle.) AHM objected on similar grounds as above and argued that Plaintiff is not entitled to seek unrelated complaints in other 2019 Honda HR-V vehicles. As requested, RPD No. 30 is overbroad. While the RPD seeks documents regarding the 2019 Honda HR-V vehicles, the RPD is not limited in geographical location or time, and scope (i.e., specifically the electrical and transmission defects, which should be more specifically described). Rather, the RPD seeks documents regarding any type of complaint that is “similar” to Plaintiff’s complaints. The motion to compel Defendant’s further response to RPD No. 30 is denied.

RPD No. 31 seeks all documents that refer to, reflect, or relate to any Field Service Action issued, or in the process of being issued, in response to complaints experienced by Plaintiff as described in AHM’s warranty history/summary and within the line items of the repair orders created at its authorized repair facility. AHM objected to the RPD and responded without waiving objections that it is unable to comply with the RPD because it has made a diligent search and reasonable inquiry and has no "Field Service Actions" and no responsive documents have ever existed in its possession, custody, or control. This response is code compliant to show AHM’s inability to comply based on the nonexistence of the documents requested. As such, the motion is denied as to RPD No. 31.

No sanctions were requested.

CONCLUSION AND ORDER

Plaintiff Oscar Ochoa’s motion to compel Defendant American Honda Motor Co., Inc.’s further responses to RPD Nos. 1-6, 9-11, and 13-14 is granted, but subject to the limitation stated in the Court’s written order. The motion is denied as to RPD Nos. 7-8, 12, and 15-31. Defendant is ordered to provide further responses within 20 days of notice of this order.

Plaintiffs shall give notice of this order.

DATED: April 26, 2024 ___________________________

John Kralik

Judge of the Superior Court