Judge: Malcolm Mackey, Case: 21STCV23578, Date: 2022-10-31 Tentative Ruling
Case Number: 21STCV23578 Hearing Date: October 31, 2022 Dept: 55
YEPEZ
v. TOYOTA MOTOR SALES, U.S.A., INC. 21STCV23578
Hearing Date: 10/31/22,
Dept. 55
#3: MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS
FOR PRODUCTION OF DOCUMENTS, SET ONE.
Notice: Okay
Opposition
MP:
Plaintiffs
RP:
Defendants
Summary
On 6/24/21, plaintiffs DORA YEPEZ and KARINA DENISE
YEPEZ filed a Lemon Law Complaint against TOYOTA, alleging that a purchased
2016 Toyota Tacoma has been having recurring and unpredictable engine and transmission
problems, not repaired after a reasonable number of attempts.
MP
Positions
Moving parties request an order compelling Defendant
to serve further document responses, on grounds including the following:
·
Defendant does not provide a Code-compliant
response, by failing to indicate its level of compliance with Plaintiffs’
requests, and lodging boilerplate objections, making it nearly impossible for
Plaintiff to determine whether Defendant is inappropriately withholding
documents.
·
Defendant has yet to provide produce any
additional documents regarding requests 20-34, and 37-43.
·
Plaintiffs made numerous attempts at
resolving this dispute informally.
·
Plaintiffs seek the following:
o
All DOCUMENTS which describe policies,
procedures, and/or instructions since 2016 that YOUR employees and agents
should follow when evaluating a customer request for a refund of their money
paid towards or owed on a motor vehicle manufactured or distributed by YOU.
(RFP 20.)
o
All DOCUMENTS describing YOUR policies,
procedures, or guidelines for determining whether a vehicle is eligible for a
vehicle repurchase pursuant to the Song-Beverly Act since 2016. (RFP 21.)
o
All training materials regarding the
handling of consumer requests for a vehicle repurchase in California since
2016. (RFP 22.)
o
All training materials for YOUR employees
or agents tasked with determining whether a vehicle is eligible or a vehicle
repurchase pursuant to the Song-Beverly Act since 2016. (RFP 23.)
o
All scripts and flow charts that YOU
utilize in handling California consumer requests for a vehicle repurchase or
replacement since 2016. (RFP 24.)
o
All DOCUMENTS describing YOUR policies,
procedures, and parameters for determining what constitutes a repair
presentation to determine eligibility for a vehicle repurchase pursuant to the
Song-Beverly Act since 2016. (RFP 25.)
o
All DOCUMENTS describing YOUR policies,
procedures, and parameters for determining what constitutes a “non-conformity”
to determine eligibility for a vehicle repurchase pursuant to the Song-Beverly
Act since 2016. (RFP 26.)
o
All DOCUMENTS describing YOUR policies,
procedures, and parameters for determining what constitutes a “substantial
impairment” of a vehicle’s use, value, or safety to determine eligibility for a
vehicle repurchase pursuant to the Song-Beverly Act since 2016. (RFP 27.)
o
All DOCUMENTS describing YOUR policies,
procedures, and parameters for defining what constitutes a “reasonable number
of repair attempts” to determine eligibility for a vehicle repurchase pursuant
to the Song-Beverly Act since 2016. (RFP 28.)
o
All DOCUMENTS describing YOUR policies,
procedures, and parameters for establishing the turn-around time to respond to
a vehicle repurchase request pursuant to the Song-Beverly Act since 2016. (RFP
29.)
o
All DOCUMENTS that YOU utilize to
determine whether a vehicle is eligible for a repurchase pursuant to the
Song-Beverly Act since 2016. (RFP 30.)
o
All DOCUMENTS which evidence or describe
YOUR policies, procedures and/or instructions since 2016 which YOUR authorized
repair facilities should follow regarding customer requests for a refund of the
price paid for a vehicle pursuant to the Song-Beverly Act. (RFP 31.)
o
All DOCUMENTS describing YOUR policies and
procedures from 2016 to the present for proactively complying with the
Song-Beverly Act in California by offering a repurchase or replacement of a
qualifying vehicle without a consumer request to do so. (RFP 32.)
o
All Technical Service Bulletins which have
been issued for the same year, make, and model as the SUBJECT VEHICLE. (RFP
33.)
o
All Recalls which have been issued for the
same year, make, and model as the SUBJECT VEHICLE. (RFP 34.)
o
DOCUMENTS sufficient to identify all of
YOUR OBDII codes for the same year, make, and model as the SUBJECT VEHICLE.
(RFP 37.)
o
DOCUMENTS sufficient to show all of YOUR
vehicle symptom codes for the same year, make, and model as the SUBJECT
VEHICLE. (RFP 38.)
o
DOCUMENTS sufficient to show all of YOUR
vehicle component repair codes for the same year, make, and model as the
SUBJECT VEHICLE. (RFP 39.)
o
DOCUMENTS sufficient to show all of YOUR
customer complaint codes from 2016 to present. (RFP 40.)
o
DOCUMENTS sufficient to show all labor
operation codes provided by YOU to YOUR authorized dealerships from 2016 to
present. (RFP 41.)
o
DOCUMENTS evidencing YOUR categorization
or binning of customer complaints within YOUR warranty databases from 2016 to
present. (RFP 42.)
o
DOCUMENTS evidencing YOUR categorization
or binning of warranty repairs within YOUR warranty databases from 2016 to
present. (RFP 43.)
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Plaintiffs failed to establish good cause
for an order compelling further responses.
·
Plaintiffs failed to make sufficient meet
and confer efforts.
·
Defendant offered to produce responsive
documents to many the requests at issue, but Plaintiffs failed to respond, or
to agree to use the LASC Model Order Stipulation for Production and Protective
Order.
·
With respect to Request Nos. 20, 21, 24,
25, 26, 27, 28, 29 and 31, Defendant supplemented its responses, and production
of any responsive confidential material will be made under a protective order.
·
Request Nos. 22 and 23 seek internal "training
material" regarding California vehicle repurchases. Plaintiffs have never
articulated the scope of the vaguely phrased "training materials,'*
"handling of consumer requests for a vehicle repurchase," and
"employees or agents tasked with determining whether a vehicle is eligible
or a vehicle repurchase pursuant to the Song-Beverly Act." Defendant would be required to speculate.
·
With respect to Request No. 30, regarding
how it would determine whether a vehicle is eligible for a repurchase under Song-Beverly,
the scope is so broad that Defendant is uncertain how it could respond.
Defendant evaluates each case on a case-by-case basis; therefore, the only
additional documents that it would "utilize to determine whether a vehicle
is eligible for a repurchase pursuant to the Song-Beverly Act" are
vehicle-specific documents.
·
With regard to Request No. 32, the request
is too unclear and speculative to provide a response. The request puts forth an
incomplete hypothetical situation regarding a "proactive" repurchase
or replacement offer, apart from any customer request.
·
As for Request No. 33, Defendant provided
a response setting forth that it is not aware of any Technical Service
Bulletins issued for the 2016 Tacoma that pertain to Plaintiffs'
complaints. A Technical Service Bulletin
is not an admission of a defect, as they are routinely issued to dealers to
help diagnose and repair typical complaints. (American Honda Motor Co. v.
Superior Court (2011) 199 Cal.App.4+ 1367, 1378.) Other TSBs that have nothing
to do with any of the complaints reported by Plaintiffs. Production of all TSBs
would be disproportionately burdensome.
·
As for Request No. 34, Defendant produced
all recalls applicable to the subject vehicle's VIN, which is limited to Recall
HOG. Because Recalls are VIN-specific, any other Recalls that may have been
issued for other 2016 Tacoma vehicles have absolutely no relevance.
·
Request Nos. 39 through 43, seek documents
relating to vaguely termed "customer
complaint codes," "labor operation codes," “categorization
or binning of customer complaints," and "categorization or binning of
warranty repairs." The scope regarding various undefined codes,
categorization and binning of complaints, is overly broad and
disproportionately burdensome. There are potentially thousands of codes
associated with each model vehicle and various components, and this is already
reflected in the Diagnostic Trouble Codes contained in the repair manual
produced.
·
Sanctions are unwarranted against
Defendant.
Tentative
Ruling
The motion is granted, as prayed.
Defendant is to provide further responses in
compliance with the California Discovery Act within 30 days.
Sanctions in the amount of $2,420.00 are awarded to plaintiffs
and against Defendant and defense counsel, jointly and severally.
Discovery
Act Requirements
The moving and opposing parties’ separate statements
readily reveal that the responses do not fully have the components required by
the California Discovery Act, and that objections are not shown to have merit.
The opposing papers haven not indicated whether
production was being allowed in full or part, and the specifications of all
documents being withheld under objection.
A document response must consist of: 1) an agreement to comply, stating whether
the productions or inspection will be allowed “in whole or in part,” and that
all documents or things in the possession, custody or control of the
respondent, as to which no objection is made, will be included, by the date set
for inspection (unless informally extended in writing, or the designated timing
is subject to objection); 2) a
representation of inability to comply, with a specification of any person
believed or known to have possession of documents; or, 3) objections and specification of withheld
documents. CCP §§2031.210(a), 2031.220,
2031.270, 2031.280(b).
“Even where a party deems a demand to be
objectionable, he [she, or it] still must identify those items which fall into
the category of item in the demand to which an objection is being made.” Standon Co. v. Sup. Ct. (1990) 225
Cal. App. 3d 898, 901 n.3.
Meet
and Confer
While some degree of meeting and conferring in good
faith is required, a stipulation to a protective order is completely voluntary
and not required, and parties have the alternative of filing a motion for a
protective order.
A discovery motion should not be denied automatically
based upon the reason that the moving parties failed to meet and confer in good
faith. Obregon v. Sup. Ct. (1998)
67 Cal.App.4th 424, 434. “‘A
determination of whether an attempt at informal resolution is adequate . . .
involves the exercise of discretion.’” Stewart
v. Colonial W. Agency (2001) 87 Cal. App. 4th 1006, 1016. Accord
Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-94.
“‘A stipulation is an agreement between counsel with
respect to business before a court….’” Harris
v. Spinali Auto Sales, Inc. (1966) 240 Cal. App. 2d 447, 452.
Parties are permitted to stipulate to confidentiality
of information to be exchanged, but “once the dispute reaches the court, the
disclosure and dissemination of information must be subject to court order, not
the preexisting agreement of the parties.”
Westinghouse Elec. Corp. v. Newman & Holtzinger (1995) 39
Cal. App. 4th 1194, 1209. A noticed
motion is required for requesting a protective order. Titmas v. Sup. Ct. (2001) 87 Cal. App.
4th 738, 743; St. Paul Fire &
Marine Ins. Co. v. Sup. Ct. (1984) 156 Cal. App. 3d 82, 85. To prevail on
motions for protective orders, moving parties have the burden “to demonstrate
that the ‘discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or
less expensive’…, or that the ‘selected method of discovery is unduly
burdensome or expensive’….” Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal. App. 4th 390, 402.
Relevance
As for relevance and overbreadth, the discovery
seeking general handling of customers’ complaints can be discoverable. An opinion indicates that proof as to manufacturer’s
ongoing, general policies, as they affect other consumers, generally, can be
relevant to support findings regarding penalties,
as indicated by the following opinion excerpt:
Additionally,
the jury could conclude that Isuzu's policy, which requires a part be
replaced or adjusted before Isuzu deems it a repair attempt but excludes from
repair attempts any visit during which a mechanic searches for but is unable to
locate the source of the problem (see fn. 11, ante), is unreasonable and not a
good faith effort to honor its statutory obligations to repurchase defective cars….
Finally, there was evidence that Isuzu adopted internal policies that erected
hidden obstacles to the ability of an unwary consumer to obtain redress
under the Act…. This latter evidence would permit a jury to infer that Isuzu impedes
and resists efforts by a consumer to force Isuzu to repurchase a
defective car, regardless of the presence of an unrepairable defect, and
that Isuzu's decision to reject Oregel's demand was made pursuant to Isuzu's policies
rather than to its good faith and
reasonable belief the car did not have an unrepairable defect covered by the
warranty or that a reasonable number of attempts to effect a repair had not yet
occurred.
Oregel v. Amer. Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094,
1105. [Emphases added.]
As to overbreadth objections involving no claim of
privilege, courts determine whether the discovery is “ ‘reasonably calculated
to lead to the discovery of admissible evidence’ ”, generally resolving doubt in favor of permitting
discovery. Williams v. Sup. Ct.
(2017) 3 Cal.5th 531, 542. “When
discovery requests are grossly overbroad
on their face, and hence do not appear reasonably related to a legitimate
discovery need, a reasonable inference can be drawn of an intent to harass and
improperly burden.” Obregon v. Sup.
Ct. (1998) 67 Cal.App.4th 424, 431. [Emphasis added.]
Burden
and Oppression
The objections based on burden were not supported by
the opposing declaration failing to address the number of workers and hours
that would be involved to serve responses.
Objecting parties must file evidence detailing the
amount of work involved, in order to support objections based upon burden and
oppression. West Pico Furniture Co. v.
Sup. Ct. (1961) 56 Cal.2d 407, 417;
Civ. Pro. Before Trial (The Rutter Group 2022) §8:1097.
Ambiguity
The objections to uncertainty of some discovery
request words, all lack merit, because the words and phrases are understandable
and allow for a reasonable interpretation in responding.
Ambiguity objections as to
discovery are overruled unless requests are unintelligible. Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 783, superseded by statute on
another ground as stated in Guzman
v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444. Cf. Standon Co. v. Sup. Ct. (1990) 225
Cal. App. 3d 898, 901 (ambiguity objection deemed a nuisance objection as to
request for any medical bills or expense documentation).
Privilege
The objections based on attorney-client privilege and
work product fail to be supported by a privilege log or foundational evidence
in the opposing declaration.
“[L]egislation amended subdivision (c)(1) of Code of
Civil Procedure section 2031.240 to require the preparation of a privilege log
‘if necessary’ to ‘provide sufficient factual information for other parties to
evaluate the merits’ of a claim of privilege
or protected work product.” Bank
of Amer., N.A. v. Sup. Ct. (2013) 212 Cal.App.4th 1076, 1098. Where a party serves a timely discovery
response stating attorney-client or work-product objections, without a
privilege log or facts justifying the objections, the appropriate procedure is
to grant a motion to compel further responses having particularized
identification of documents as to which the privilege is asserted, and the
justifying facts. Best Product, Inc.
v. Sup. Ct. (2004) 119 Cal.App.4th 1181, 1188-89; People ex rel. Lockyer v. Sup. Ct.
(2004) 122 Cal.App.4th 1060, 1073-75 (“no obligation to produce a
privilege log at all, unless ordered to do so by the court upon a motion by a
party seeking such a document.”).
Equally
Available
The equally available objection does not apply to
documents, or apply without a motion for a protective order, and here overly
simplistically references Lemon Law statutory provisions that either side can
get via standard legal research.
There is no duty to respond to interrogatories
as to information equally available to the propounding party. CCP §2030.220(c); Bunnell v. Sup.Ct. (1967) 254
Cal.App.2d 720, 723–724; Alpine Mut.
Water Co. v. Sup. Ct. (1968) 259 Cal. App. 2d 45, 53-54.
Courts should issue protective orders against undue
burden placed upon parties in requests for discovery, including where the
information is equally available to both parties. Calcor Space Facility v.
Sup. Ct. (1997) 53 Cal. App. 4th 216, 225.
Post-Motion
Supplemental Responses
Although several responses have been supplemented
after the motion was filed, many were not, such that the motion has not become
all or mostly moot, in order to justify taking the motion off calendar.
Where respondents served discovery responses after
parties have filed motions to compel responses, courts have broad discretion as
to ruling, including: 1) denying the motion as moot, in whole or part, where
valid responses without objections have resolved the motion; 2) awarding requested sanctions; 3) allowing moving party to take the motion
off calendar; 4) considering the motion as voluntarily
narrowed in scope; 5) compelling responses without objection, where
no legally valid responses have been provided, as to some, or all, interrogatories;
6) treating the motion as one to compel further responses, and ruling
accordingly, with, or without, a separate statement; 7) ordering the parties to meet and
confer; 8) ordering moving party to file a separate
statement; or, 9) ordering the motion
off calendar while requiring the propounding party to file a motion to compel
further responses. Sinaiko Healthcare
Consulting, Inc., v. Klugman (2007) 148 Cal.App.4th 390, 409.
Sanctions
The Court finds that the opposing papers have failed to
show substantial justification for the noncompliant responses and unconvincing
memorandum.
Generally, monetary sanctions are mandatory as to
parties losing discovery motions, unless courts find substantial justification
or other injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.