Judge Kerry Bensinger, Case Number: 23STCV04392, Date: 2024-05-21 Tentative Ruling

Plaintiff, Dmitri Shistik, commenced this Song-Beverly action against Defendant KA America, Inc. (KA) and thereafter propounded Request for Production of Documents, Set One, among others. KA served responses. After review of the responses and document production, Plaintiff determined that the responses to Request Nos. 8-10, 12, 17, 19, 22, 26-27, 33, 40, 55, 63, 64, and 66-69 were evasive and incomplete and the objections were without merit or too general.

On March 1, 2023, the court (Judge Yolanda Orozco) issued a Notice of Case Management Conference with Song-Beverly Act Joint Case Management Conference Statement Addendum and Attachment “A” (“March 1 Song-Beverly Addendum”). The case management conference eventually took place on October 24, 2023 with Judge Serena Murillo.

On December 18, 2023, the parties participated in an Informal Discovery Conference (IDC) with the court (Judge Kerry Bensinger) regarding this discovery dispute. In advance of the IDC, the court provided its Addendum to Case Management Conference Order re: Song-Beverly Discovery (“Addendeum”) for the parties to review and discuss at the IDC. At the IDC, the issues were not resolved. The court directed the parties to meet and confer and for Plaintiff’s Counsel to prepare and file a Notice of Outcome. The court also adopted the Addeundum as issued and filed.

On February 1, 2024, Plaintiff filed a Notice of Outcome which states, in relevant part:

Following further communications between Counsels, on January 29, 2024, Counsel for Defendant submitted that “KA will search for the information on similar complaints that is called for in the CMO.” Counsel for Defendant also advised that he does not have an estimated production date yet, and that he will follow up with KA and let Plaintiff’s Counsel know.”

Thereafter, KA did not provide supplemental responses or supplemental documents. Meet and confer efforts did not resolve the dispute.

On April 25, 2024, Plaintiff filed this motion to compel KA to provide further responses to Request Nos. 8-10, 12, 17, 19, 22, 26-27, 33, 40, 55, 63, 64, and 66-69.[1] Plaintiff also seeks issue or evidentiary sanctions.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where an answer to the request is evasive or incomplete or where an objection is without merit or too general.¿ The motion “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿

Notice of the motion must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., § 2031.310, subd. (c).)¿ The motion must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2031.310, subd. (b)(2).)¿¿¿

Finally, California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, Rule 3.1345(a)(3).)¿¿

In her motion, Plaintiff states: “According to records, Plaintiff Dmitri Shistik (“Plaintiff”) purchased 2021 KA Sorento vehicle (“Vehicle”) on May 23, 2021 with 26 miles on the odometer from Defendant Car Pros Automotive Group, Inc. dba Car Pros KA Glendale (“Dealership”) which was manufactured and/or distributed by Defendant KA America, Inc. (“KA” or “Defendant”). (Declaration of Sam Azimtash (“SA Decl.”), ¶ 2.) According to records, following the purchase, the Subject Vehicle was presented to Defendant’s authorized repair facility on numerous different occasions for the following engine, transmission, and powertrain symptoms and/or defects that were identified by Defendant’s authorized repair facility: (1) illumination of the Check Engine Light; (2) loss of power; (3) shaking on start, especially in cold weather; (4) stuttering on start, especially in cold weather; (5) ignition coil failure; (6) misfire of the cylinders; (7) misfiring of multiple cylinders; (8) trans shifting hard; (9) excessive shaking and vibrations; (10) rough idle; (11) engine misfiring rapidly on start; (12) trans internal failure; (13) harsh shifts; (14) symptoms leading to a transmission replacement; (15) shifting really hard on reverse; (16) leaking waterpump; and/or (17) transmission juddering.1 (Id. ¶ 3; Exhibit A to SA Decl.) As of the filing of this Motion, the Subject Vehicle is suffering from Defects identified herein and the Defendant’s authorized repair facility has been unable to repair it. (Id.)” (Mot., p. 5.)

Plaintiff seeks a further response to Request Nos. 8-10, 12, 17, 19, 22, 26-27, 33, 40, 55, 63, 64, and 66-69.

No. 8: The Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2016 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame].

KA’s Response: “After a reasonable inquiry and diligent search, KA has been unable to locate any documents responsive to the Request. KA has no documents responsive to this request, and no responsive documents have ever existed. KA does not have a document entitled Warranty Policy and Procedure Manual. However, KA refers Plaintiff to the herein referenced portions of KA’s Service Policy and Procedures Manual, a copy of which was produced subject to the Protective Order in this case.”

Ruling: DENIED. The court finds this is a Code-compliant response. KA represents that no responsive documents have ever existed. A further response is not warranted.

No. 9: All LEMON LAW DOCUMENTS[2] published by YOU and provided to YOUR employees, agents, and representatives. [This request shall also be understood to include copies of any and all documents identified in YOUR response to Plaintiff’s Special Interrogatory No. 7.]

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control. KA refers Plaintiff to the Warranty and Consumer Information Manual for the subject vehicle, a copy of which was previously produced, and relevant portions of the Service Policy and Procedures Manual and Call Matrix copies of which will be produced subject to the Protective Order in this case.”

Ruling: DENIED. “ALL LEMON LAW DOCUMENTS” (which ends with “etc.”) is overbroad. Moreover, the request is not bounded by time and place, which should be after January 1, 2021 (the year the car was purchased) and location (California).

No. 10: A copy of the Workshop Manual specifying diagnosis and repair procedures for YOUR VEHICLES.[3]

No. 12: All Technical Service Bulletins, Recalls, Special Service Messages, or other technical bulletins regarding TRANSMISSION DEFECTS in YOUR VEHICLES.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA will produce technical service bulletins, if any, related to the issues alleged by Plaintiff to exist with the subject vehicle.”

No. 17: All DOCUMENTS, including electronically stored information and electronic mails, concerning any internal analysis or investigation by YOU or on YOUR behalf regarding TRANSMISSION DEFECTS in YOUR VEHICLES. [This request shall be interpreted to include any such investigation to determine the root cause of such TRANSMISSION DEFECTS, any such investigation to design a permanent repair procedure for such TRANSMISSION DEFECTS, any such investigation into the failure rates of parts associated with such TRANSMISSION DEFECTS, etc.].

No. 19: All DOCUMENTS, including electronically stored information and electronic mails, concerning communication YOU have had regarding customer concerns relating to TRANSMISSION DEFECTS in YOUR VEHICLES.

On May 15, 2024, KA lodged confidential documents under seal pursuant to the parties’ Stipulated Protective Order. The confidential documents relate to customer complaints that are substantially similar to the alleged defects in the subject vehicle. The court has reviewed KA’s under seal submission. In particular, KA’s spreadsheet is incomprehensible. It does not comply with Addendum 2(h). KA is ordered to amend the spreadsheet consistent with Addendum 2(h).

No. 22: All DOCUMENTS, including electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to TRANSMISSION DEFECTS in YOUR VEHICLES, including any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.

Ruling: GRANTED in part (Addendum 2(h)) and DENIED in part. With respect to electronically stored information, the motion to compel is Granted. As to email communication, the request is overbroad. Plaintiff does not identify the control source or search terms that might provide responsive documents. The request with respect to emails is Denied.

No. 26: All DOCUMENTS, including warranty claims related to TRANSMISSION DEFECTS in YOUR VEHICLES, including any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.

Ruling: DENIED. Warranty claims are limited to the subject vehicle. (Addendum 2(e).)

No. 27: All DOCUMENTS which concern any technical service bulletins issued, or in the process of being issued, for YOUR VEHICLES.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA will produce technical service bulletins, if any, related to the issues alleged by Plaintiff to exist with the subject vehicle.”

No. 33: Any and all audio or video tape recordings involving any discussions concerning the SUBJECT VEHICLE.

No. 40: All DOCUMENTS that YOU use, since 2016, to evaluate consumers’ requests for repurchases pursuant to the Song Beverly Consumer Warranty Act.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA refers Plaintiff to the Warranty and Consumer Information Manual relevant portions of the Service Policy and Procedures Manual and Call Matrix, and the BBB Lemon Law Summary for California, copies of which will be produced subject to the Protective Order in this case.”

Ruling: GRANTED in part. KA agreed to comply with the demand in part. KA has not produced any documents. DENIED in part. The relevant time period is 2021-forward. (Addendum 2(g).)

No. 55: All training manuals and/or other DOCUMENTS relating to the training given to YOUR employees, agents, and representatives, since 2016, in connection with handling consumer lemon law repurchase requests.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA refers Plaintiff to the Warranty and Consumer Information Manual, and relevant portions of the Service Policy and Procedures Manual and Call Matrix, copies of which will be produced subject to the Protective Order in this case.”

No. 63: All DOCUMENTS reflecting YOUR call center’s policies, procedures or practices in evaluating consumer’s request for vehicle repurchase under the Song-Beverly Act which was/were in effect at the time Plaintiff requested repurchase of the SUBJECT VEHICLE.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA refers Plaintiff to the following responsive consumer affairs documents: the Warranty and Consumer Information Manual and BBB Lemon Law Summaries for California, and relevant portions of the Service Policy and Procedures Manual and Call Matrix, copies of which will be produced subject to the Protective Order in this case.”

No. 64: All DOCUMENTS reflecting YOUR policies, procedures or practices in assessing whether to repurchase or replace a consumer’s vehicle under the Song-Beverly Act which was/were in effect since 2016.

KA’s Response: “KA agrees to comply with this demand in part and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA refers Plaintiff to the Warranty and Consumer Information Manual and BBB Lemon Law Summaries for California, which will be produced, and relevant portions of the Service Policy and Procedures Manual and Call Matrix, copies of which will be produced subject to the Protective Order in this case.”

No. 66: YOUR dealership agreement with CAR PROS AUTOMOTIVE GROUP, INC. DBA CAR PROS KA GLENDALE.

Ruling: GRANTED. Plaintiff argues a further response is required because KA has asserted improper objections. The objections lack merit. This discovery request seeks relevant information.

No. 67: All communications between YOU and CAR PROS AUTOMOTIVE GROUP, INC. DBA CAR PROS KA GLENDALE regarding the SUBJECT VEHICLE.

KA’s Response: “KA agrees to comply with this demand in whole and will produce all documents or things in the demanded category that exist and are in its possession, custody, or control, and to which no objection is being made. KA refers Plaintiff to the service records for the subject vehicle, which are in Plaintiff’s possession and will be produced by KA. Further, KA refers Plaintiff to the Warranty History Inquiry and Techline Assistance Center Case Reports, copies of which will be produced subject to the entry of a suitable Protective Order in this case.”

Ruling: GRANTED. Plaintiff argues a further response is required because KA has not produced the requested documents. The court notes that Plaintiff seeks an order compelling KA’s compliance. It is undisputed KA has yet to provide the documents. Accordingly, Plaintiff is entitled to an order compelling KA’s compliance.

No. 68: All communications between YOU and CAR PROS AUTOMOTIVE GROUP, INC. DBA CAR PROS KA GLENDALE regarding all of the repairs performed on the SUBJECT VEHICLE.

NO. 69: All reports submitted to YOU from CAR PROS AUTOMOTIVE GROUP, INC. DBA CAR PROS KA GLENDALE regarding CAR PROS AUTOMOTIVE GROUP, INC. DBA CAR PROS KA GLENDALE’s repair procedure.

Plaintiff requests issue and evidence sanctions against KA. If a party fails to obey an order compelling inspection, copying, testing, or sampling, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (Code Civ. Proc., § 2031.320, subd.(c).)¿

Here, Plaintiff’s request is based upon purported violations of the court’s March 1, 2023 and October 24, 2023 orders. The request lacks merit. The court did not issue any rulings in this discovery dispute. There is no basis to claim KA disobeyed an order “compelling inspection, copying, testing, or sampling.” The request is DENIED.

Plaintiff’s motion as to Request for Production Nos. 10, 12, 27, 33, 63, 66, 67, 68, 69 is GRANTED. KA is ordered to provide further responses and/or comply with its statement of production within 45 days of this order.

Plaintiff’s motion as to Request for Production Nos. 17, 19, 22, 40 is GRANTED IN PART. KA is ordered to provide further responses and/or comply with its statement of production within 45 days of this order.

Plaintiff’s motion as to Request for Production Nos. 8, 9, 26, 55, 64 is DENIED.

[1] Plaintiff timely filed this motion consistent with the parties’ written agreement. (See Azimtash Decl., Ex. L.)

[2] “LEMON LAW DOCUMENTS” is defined as follows: “The term “LEMON LAW DOCUMENTS” means any and all documents relating to Defendant’s handling of state Lemon Law obligations, including documents describing Lemon Law Situations, Lemon Law Prevention, Repeat Repair Attempts, Consumer Protection Laws, Lemon Laws, Lemon Law Manuals, Lemon Law Complaints, and Magnusson Moss Act, State Lemon Laws and/or Lemon Law advice. This term includes portions of any and all manuals containing discussions of state Lemon Law requirements, Defendant’s policies and procedures regarding ensuring compliance with state Lemon Law requirements, Defendant’s instructions to its employees, agents, and representatives regarding state Lemon Law requirements, Defendant’s policies and procedures regarding repeat repair visits, Defendant’s policies and procedures regarding defect reporting, Defendant’s policies and procedures regarding technical service bulletin drafting, Defendant’s policies and procedures regarding recall drafting, Defendant’s policies and procedures regarding Lemon Law prevention, Defendant’s policies and procedures regarding warranty claims, etc.” (See SA Decl., Ex. E., ¶ 7.)

[3] The term “YOUR VEHICLES” refers to all vehicles of the same make, model, and year as the SUBJECT VEHICLE. (See SA Decl., Ex. E., ¶ 5.)