Judge: Malcolm Mackey, Case: 22STCV17178, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCV17178    Hearing Date: May 4, 2023    Dept: 55

NALBANDIAN v. FCA US, LLC,                                                   22STCV17178

Hearing Date:  5/4/23,  Dept. 55.

#7:   MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, AND MONETARY SANCTIONS.

 

Notice:  Okay

Opposition

 

MP:  Plaintiff

RP:  Defendant

 

 

Summary

 

On 5/25/22, Plaintiff RICHARD NALBANDIAN filed a Lemon Law Complaint alleging that Plaintiff purchased a 2015 Dodge Ram 3500 having electrical and engine concerns, which Defendant has not repaired after a reasonable number of attempts.

 

 

MP Positions

 

Moving party requests an order compelling Defendant to serve further document responses, and imposing monetary sanctions, on grounds including the following:

 

·         Defendant’s responses contain indiscriminate and improper boilerplate objections.

·         While FCA usually says it “will comply in full,” that is inaccurate because FCA does not state that it has produced all responsive documents, cherry picks what documents it will turn over to Plaintiff, gives no explanation as to its search term protocols, gives no indication that it performed the appropriate searches for relevant ESI or emails.

·         The requested documents are relevant to the issues related to Defendant’s good faith compliance with the Song-Beverly Consumer Warranty Act (i.e., the “Song-Beverly Act”), including breach of the express warranty and implied warranty of merchantability. Civil Code §§1791.1, 1793.2, 1794.

·         Defendant is obligated to disclose its electronic search protocol to Plaintiff. See In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D. Cal. April 6, 2011) (“Facebook”). See also Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG) (N.D. Cal. 2013) (court demanded to know how Google created the search term universe in which it produced relevant data); Robert Bosch LLC v. Snap-on, Inc. Case No. 12-11503 (E.D. Mich. 2013) (defendants ordered to cooperate with Plaintiff regarding selection of proper search terms); In re Coventry Healthcare, Inc. ERISA Litigation, 290 F.R.D. 471, 475 (D. Md.).

 

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiffs filed a boilerplate motion to compel further responses to Request for Production (Set One) Nos. 1, 7, 10, 16, 29, 34-37, 41, 43, 60, 64, 66, 68, 70-72 and 76, claiming that FCA US’s responses are somehow deceiving and/or deficient.

·         Defendant FCA US responded to Plaintiffs’ discovery requests with code-compliant responses, including most responses that production would be in full.

·         Defendant met and conferred on its responses repeatedly and in good faith.

·         Defendant timely supplemented most of the at-issue requests in November 2022.

·         There are some overbroad requests.  The case does not require a plaintiff to show other consumers made similar complaints and, given its remedial nature, the statute keeps a plaintiff's burden of proof simple.

 

Tentative Ruling

 

The motion is denied.

The responses properly respond that Defendant will comply in full, even with the objections and lists of documents that would be included.

When a party objects to discovery requests, and also provides complete responses to the requests, nothing is left to address in a motion to compel.  American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4th 247, 269.

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 (production).   Compliance includes all documents or things in the demanded category that are in the “‘possession, custody, or control’” of the responding party, such as from other corporations.  Roche v. Hyde (2020) 51 Cal.App.5th 757, 813  (quoting CCP  § 2031.220).  The diligent search explanation is required for responses about an inability to comply, not as to responses that production of documents would be allowed in whole or full.  See  CCP §2031.230. 

Regarding electronically stored information (ESI), moving party cited federal trial court decisions that do not govern in California state trial courts.  “California law governs discovery disputes that arise in our courts.”  Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130.  Defendant is not required to disclose its electronic search protocol.

Further, the Court will not consider moving party’s implications that the sufficient responses regarding allowing full production, are actually false.  A motion to compel further discovery responses cannot be granted based on the reason that verified answers served are really untrue.  Holguin v.  Sup.  Ct.  (1972) 22 Cal.App.3d 812, 820, 821.  There is no statutory requirement for respondents to correct untruthful discovery responses, but instead an intentional failure to amend the responses creates the risks of prosecution for perjury, or monetary sanctions.  Guzman v. General Motors Corp. (1984)154 Cal. App. 3d 438, 442-43 n. 4.  A respondent cannot be compelled to admit a fact in discovery, even where its truth is obvious.  Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 634;  Smith v. Circle P Ranch Co. (1978) 87 Cal. App. 3d 267, 273.  The service of willfully false discovery responses is not covered by the current version of the Civil Discovery Act.  Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.

Next, the response to request 10 properly objects to producing documents from entities outside of Defendant’s possession, custody or control.  Compliance includes all documents or things in the demanded category that are in the “‘possession, custody, or control’” of the responding party, such as from other corporations.  Roche v. Hyde (2020) 51 Cal.App.5th 757, 813  (quoting CCP  § 2031.220).

Finally, as to request numbers 41, 43, 66 and 76, the Court sustains response objections such as vague, ambiguous, overbroad and unduly burdensome.  Courts have discretion to prohibit discovery if it is unreasonably broad and unduly burdensome.  E.g.,  CCP §2019.030(a);  Emerson Elec. Co. v. Sup. Ct. (1997) 16 Cal.4th 1101, 1110;  Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 998.