Judge: Lee W. Tsao, Case: 23NWCV00226, Date: 2023-10-10 Tentative Ruling
Case Number: 23NWCV00226 Hearing Date: October 10, 2023 Dept: C
David
Marquez, et al. v. Mossy Ford
CASE
NO.: 23NWCV00226
HEARING:
10/10/2023 @ 9:30 a.m.
#4
TENTATIVE
ORDER
Plaintiffs’ Motion to Compel Further Response for Request for
Production is GRANTED in part and Denied in part. Defendant to provide further verified,
Code-compliant response to Request 16. Defendant to provide further verified,
Code-compliant responses to Request Nos. 19-23, 25-29 and 31, subject to
protection order. Defendant to provide further verified, Code-compliant
responses to Request No. 24 other than documents related to scripts. Production
of all corresponding documents must be provided without objection within twenty
days.
Plaintiffs’ request for sanctions
is DENIED.
Moving party to give notice.
Background
On January 23, 2023,
Plaintiffs David Marquez and David Marquez, Jr. (“Plaintiffs”) filed a
Complaint against Defendant Mossy Ford, Inc. (“Defendant”) Ford Motor Company
and Does 1-10 alleging violation under the Song-Beverly Act by failing to
repair Plaintiff’s 2018 Ford Mustang vehicle (the “Vehicle”) within a
reasonable number of attempts, and by refusing to repurchase the vehicle
despite its knowledge that the Vehicle suffers from those defects.
On February 23, 2023,
Plaintiffs propounded Requests for Production of Documents, Set One, seeking
documents relating to Ford’s policies and procedures relating to its compliance
with the Song-Beverly Act. (Lopez Decl., ¶ 3; Ex. A.)
On April 14, 2023, Ford
served its responses to Plaintiffs’ requests, but the responses were not
verified. (Lopez Decl., ¶ 4; Ex. B.) On May 9, 2023, Ford served verifications.
(Lopez Decl., ¶ 4.)
On June 20, 2023,
Plaintiffs initiated the meet and confer process by sending a letter to Ford
that specified the deficiencies in Ford’s responses. (Lopez Decl., ¶ 5; Ex. C.)
Plaintiffs also addressed the protective order issue and stated that, in the interest
of compromising, Plaintiffs would be agreeable to executing the Los Angeles
Model Protective Order. (Lopez Decl., ¶ 5; Ex. C.) Plaintiffs also asked that
Ford provide a response by July 5, 2023, and the parties agreed to extend the
motion to compel deadline to July 19, 2023. (Lopez Decl., ¶ 6; Ex. D.)
On July 11, 2023, Ford
provided a response to Plaintiffs’ letter indicating that Ford was standing by
its objections to the requests at issue and stating that it would be filing a
motion for protective order within 30 days. (Lopez Decl., ¶ 7; Ex. E.) On July
18, 2023, Plaintiffs responded to Defendant’s letter again explaining why Defendant’s
responses were deficient. (Lopez Decl., ¶ 8; Ex. F.) The next day, the parties
agreed to extend the motion to compel deadline to August 19, 2023. (Lopez
Decl., ¶ 8; Ex. G.)
On August 2, 2023, Defendant
responded to Plaintiffs’ letter again stating that it stood by its responses.
(Lopez Decl., Lopez Decl., ¶ 9; Ex. H.) Defendant also stated that it would be
filing a motion for protective order within 15 days. (Lopez Decl., Lopez Decl.,
¶ 9; Ex. H.) Defendant later provided supplemental responses to other requests
not at issue in this motion. (Lopez Decl., ¶ 10.)
On August 15, 2023,
Plaintiff filed its instant motion.
Analysis
A. Meet
and Confer Requirement
A
motion¿to compel further responses to requests for production “shall be
accompanied by a meet and confer declaration.”¿ (Code Civ. Proc. §
2031.310(b)(2).)¿ The declaration must state facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented in the
motion.¿ (Code Civ. Proc. § 2016.040.)¿
“The
Discovery Act requires that, prior to the initiation of a motion to compel, the
moving party declare that he or she has made a serious attempt to obtain 'an
informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc.
(2001) 87 Cal.App.4th 1006, 1016) (internal quotations and citations
omitted). This rule is designed “to encourage the parties to work out
their differences informally so as to avoid the necessity for a formal
order....”
(McElhaney
v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) “This, 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.” (Townsend v. Superior
Court (1998) 61 Cal.App.4th 1431, 1435.)
On June 20, 2023,
Plaintiffs initiated the meet and confer process by sending a letter to Ford
that specified the deficiencies in Ford’s responses. (Lopez Decl., ¶ 5; Ex. C.)
Plaintiffs also addressed the protective order issue and stated that, in the interest
of compromising, Plaintiffs would be agreeable to executing the Los Angeles
Model Protective Order. (Lopez Decl., ¶ 5; Ex. C.) Plaintiffs also asked that Defendant
provide a response by July 5, 2023, and the parties agreed to extend the motion
to compel deadline to July 19, 2023. (Lope Decl., ¶ 6; Ex. D.)
On July 11, 2023, Ford
provided a response to Plaintiffs’ letter indicating that Defendant was
standing by its objections to the requests at issue and stating that it would
be filing a motion for protective order within 30 days. (Lopez Decl., ¶ 7; Ex.
E.) On July 18, 2023, Plaintiffs responded to Defendant’s letter again
explaining why Plaintiffs found its responses were deficient. (Lopez Decl., ¶
8; Ex. F.) The next day, the parties agreed to extend the motion to compel
deadline to August 19, 2023. (Lopez Decl., ¶ 8; Ex. G.)
On August 2, 2023, Ford
responded to Plaintiffs’ letter again stating that it stood by its responses.
(Lopez Decl., Lopez Decl., ¶ 9; Ex. H.) Defendant also stated that it would be
filing a motion for protective order. (Lopez Decl., Lopez Decl., ¶ 9; Ex. H.)
Both
parties engaged in meet and confer conversations although they did not reach
agreement. Therefore, the meet and confer requirement was met.
A motion to compel
further responses requires a separate statement. (Cal. Rules of Court,
rule 3.1345(a).) Plaintiffs properly filed separate statements.
C.
Motion to Compel
Further Responses to Request for Production.
CCP
§ 2031.310(a) provides that on receipt of a response to a request for
production of documents, the demanding party may move for an order compelling
further responses if:¿¿
(1)
A statement of compliance with the demand is incomplete.¿¿
(2)
A representation of inability to comply is inadequate, incomplete, or
evasive.¿¿
(3)
An objection in the response is without merit or too general.¿¿
In
responding to a demand for production of documents, a party must either provide
one of the following: (1) a legally adequate statement of compliance; (2) a
statement of inability to comply; or (3) an objection to the particular
demand.¿ (See Code Civ. Proc., § 2031.210, subd.
(a).) If any objections are made, they must: (1) “[i]dentify
with particularity any document … falling within any category of item in the
demand to which an objection is being made”; and (2) “[s]et forth clearly the
extent of, and the specific ground for, the objection.”¿ (Id., §
2031.240, subd. (b).)¿¿
To
prevail, a party moving for an order compelling further responses to a document
production demand must first offer facts demonstrating “good cause justifying
the discovery sought by the demand.”¿ (Code Civ. Proc., § 2031.310, subd.
(b)(1).) This burden “is met simply by a fact-specific showing of relevance.”¿
(TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443,
448.)¿ If “good cause” is shown by the moving party, the burden shifts to the
responding party to justify any objections made to document disclosure.¿ (Kirkland
v. Superior Court (2002) 95 Cal.App.4th 92, 98.)¿
Here, Plaintiffs maintain they have good cause to compel
further discovery, because the documents sought are relevant to Plaintiffs’
Song-Beverly Act claims. Further, Plaintiffs claim the RFPs at issue for this
motion include requests seeking Ford’s policies and procedures related to its compliance
with the Song-Beverly Act. Courts have long recognized that a manufacturer’s
policies—or lack of policies—related to how it deals with consumer complaints
and its decision on whether to replace or repurchase are important in
determining whether a manufacturer has committed a willful violation of the
Act. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136 [explaining that among the
relevant factors a jury should consider in determining whether a defendant’s
violation is willful is “whether the manufacturer had a written policy on the
requirement to repair or replace.”])
In Opposition, Defendant argues that Plaintiffs’ motion
should be denied because Defendant served complete and code compliant responses
and well-founded objections. Defendants
argue that discovery must relate to the claims that they are required to prove,
which include that: (i) Plaintiffs bought/leased a new motor vehicle
manufactured by Ford; (ii) Ford provided them a written warranty; (iii) the
vehicle had a defect that was covered by the warranty and that substantially
impaired its use, value, or safety to a reasonable person in Plaintiffs’
situation; (iv) Plaintiffs delivered the vehicle to Ford or its authorized
repair facility for repair of the defects; (v) Ford or its authorized repair
facility failed to repair the vehicle to match the written warranty after a reasonable
number of opportunities to do so; and (vi) Ford did not promptly replace or buy
back the vehicle. Defendant argues that
Plaintiffs’ discovery requests are overbroad.
For instance, Defendant states that Request 16 should be
denied as it has agreed to turn over the 2018 warranty policy and procedure
manual, but that the manuals from 2021-present are unnecessary. Further,
Defendant argues that it properly responded to Request Nos. 19-29 and 31 and
agreed to produce relevant documents, subject to protective order. Further,
Ford expressly stated that it could not locate scripts requested in No. 24, and
properly objected to Plaintiffs’ request for additional documents as overly
broad, seeking irrelevant information and lacking required specificity. Nothing
more is, or should be, required. Conversely, Ford’s objections are clear and
concise, and state the basis for each objection, in response to each Request,
as required by the Code.
Defendant also asserts it may condition production of
documents on a protective order. The legal basis for the protective order is
Code of Civil Procedure Section 2030.090(a), which states that “[t]he court [ ]
. . . may make any order that justice requires to protect any party [ ] . . .
from unwarranted annoyance, embarrassment, or oppression, or undue burden or
expense.” Further, the Code states that “[t]he protective order may include the
direction that ‘the set of interrogatories, or particular interrogatories in
the set, need not be answered’ [and] ‘the response be made only on specified
terms and conditions.’” California Code of Civil Procedure Section 2030.090(b).
Thus, the Code specifically allows a party to protect the production of
confidential materials, and to do so through the entry of a confidentiality
protective order. The Declaration of Jacob Doss, filed with Ford’s Motion for
Entry of Protective Order, affirms that the documents identified by Ford
contain Ford’s sensitive, confidential, and proprietary information. Consistent
with its offer, Ford filed a Motion for Entry of Protective Order on August 28,
2023.
In Reply, Plaintiffs argue that the Protective Order was
filed untimely. Plaintiffs also contend that Plaintiffs’ requests are
reasonably particularized because they seek specific documents that are, where
possible, narrowly tailored to the relevant year and tailored to California.
These requests are also all tailored to the issues related to this case—namely,
Ford’s handling of consumer requests for repurchase under the Act for a certain
time period.
Request 16:
This request seeks all warranty claims policy and procedure
manuals from 2021 to the present. This request is overbroad.
Plaintiff’s requests as to Defendant’s policies and procedures will be
limited to those published from the date of purchase to the filing of Plaintiff’s
because that information is relevant to whether Defendant followed its policies
and procedures as to repairing or repurchasing Plaintiff’s vehicle.
Request Nos. 19-23, 25-29 and 31
These requests seek policies and
procedures relating to customer complaints, refunds, and vehicle repurchase
since 2021. These requests are
overbroad. Plaintiff’s
requests as to Defendant’s policies and procedures will be limited to those
published from the date of purchase to the filing of Plaintiff’s lawsuit because
that information is relevant to whether Defendant followed its policies and
procedures as to repairing or repurchasing Plaintiff’s vehicle. Defendant is
ordered to produce the requested discovery, subject to protective order.
Request 24
This request seeks all scripts and flow charts utilized in
handling California requests for repurchase since 2021. Defendant expressly stated that it could not
locate scripts requested in No. 24. responded that it had conducted a
reasonable and diligent search and did not locate responsive scripts. Therefore, the Court will not order Defendant
to produce documents unable to be located by Defendant.
Otherwise, Defendant must produce documents as the request
is not overbroad, subject to a protective order.
D.
Sanctions.
Sanctions
are mandatory against any party, person, or attorney who unsuccessfully makes
or opposes a motion to compel a further response, unless the court finds that
the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust. (CCP §2030.300(d);
CCP §2031.310(h).)
Here, Defendant shows
good cause for objecting due to concerns regarding information that should be
subject to a protective order. In the meet and confer letters, Plaintiffs did
not agree to a stipulation for a protective order, therefore Defendant filed a
motion for a protective order and agreed to produce the documentation subject
to the order or denial of such. (Lopez Decl., Exhibit F.) Defendant multiple
times substantiated a need for a protective order within its responses by
indicating that the materials contain confidential and proprietary information,
the public dissemination of which would lead to competitive and financial harm
to Defendant. (Lopez Decl., Exhibit E,
H.)
The
Court finds Defendant acted with substantial justification and thus denies
Plaintiffs’ request of $2,400.00 in sanctions.