Judge: Mark H. Epstein, Case: 23SMCV01043, Date: 2023-09-05 Tentative Ruling

Case Number: 23SMCV01043    Hearing Date: September 5, 2023    Dept: I

The motion to compel further responses is GRANTED IN PART AND DENIED IN PART.

This is one of many cases involving discovery in the Song-Beverly context.  The Court of Appeal has made various rulings touching on the subject, but has not given definitive guidance to the trial courts regarding the questions raised herein, which repeat often.  In a nutshell, the Song-Beverly Act requires that a vehicle be repurchased if, after a reasonable attempts to repair it, a particular problem persists.  Where the refusal to repurchase is willful, there are enhanced penalties.  Plaintiffs who sue under the Song-Beverly Act often believe that they are entitled to the enhanced penalties (and often they are right), but of course it is their burden to prove it. 

What results is two sorts of discovery request.  The first goes to the particular vehicle in question.  Generally, defendants respond to such discovery and there are few issues.  That is the case here.  Plaintiff propounded discovery, some of it aimed at her particular vehicle.  As to that discovery, defendant responded, or, to be more precise, promises that it will eventually respond.  The second is broader and is often manufacturer-wide, seeking information about similar problems as well as the defendant’s policies and procedures.  That discovery is often resisted.  Defendants claim that the discovery is intrusive and expensive, and its utility is far outweighed by the difficulty of responding.  Plaintiffs meet that objection by noting that often it is only this kind of discovery that will enable a plaintiff to prove what is necessary to obtain the enhanced damages.  While a defendant can moot out the issue by conceding that if plaintiff is entitled to recover, then enhanced damages are appropriate, that is a relatively high price to pay to avoid discovery, and it is not fair to impose that burden on a defendant who might well believe that there was no willfulness.  So, on the one hand plaintiffs claim that this is the discovery they need to show willfulness and to obtain the enhanced penalties that the Legislature obviously thought were appropriate in certain cases; defendants claim that this is intrusive discovery designed more to inflict pain and force a settlement than discovery really designed for the case at hand.

This court is of the view that the Los Angeles Superior Court bench is not uniform in its approach to this issue and the discovery questions that arise.  That leads to inconsistent rulings that is not appropriate.  That said, for now all this court can do is muddle through.

A few preliminary points.  The opposition is 1 page too long.  The court does not believe that extra page is material, so the court overlooks that problem.  Having said that, defendants should count pages more carefully.  The evidentiary objections are not well taken and they are OVERRULED.  The court notes that it disfavors objections based on relevance.  By definition, if evidence is irrelevant it will have no impact on the court’s ruling.  On the other hand, if it does affect the court’s ruling, then by definition the relevance objection is not well taken.  The court is not a jury; it is not like by making the objection the court will never see the evidence.  In fact, it tends to highlight the evidence.

Turning to the merits, this court’s general view on this is as follows.  Plaintiff is entitled to some discovery as to systemic problems pertaining to the identical make, model, and year of plaintiff’s vehicle.  However, the systemic problem must be the same as the problem of which plaintiff complains, and it must be specific.  In other words, “engine defects” will not do.  On the other hand, if the problem is that the motor mounts become loose, a request directed to “loosening of the motor mounts due to improper installation” would be specific enough.  In this way, plaintiff can see whether the problem in plaintiff’s particular case was one that was coming up repeatedly such that the defense knew, or should have known, that it did not have a good fix (or that it did have a good fix but that fix was not used on plaintiff’s vehicle).  Further, even with this limitation, the requests must be reasonable.  For example, seeking the entire maintenance history of every vehicle in which the problem was articulated could be overkill.  However, at the level the court just articulated, this will give plaintiff the ammunition plaintiff needs to make a willfulness showing (if the evidence is there) without an undue burden on the defense.

Turning, then, to the specific RFP’s.  The defense claims that 7-8, 10, 22, and 37 are moot because defendant said it would provide supplements by September 19, 2023.  A promise is not the same thing as an action.  As of this moment, plaintiff still does not have the documents.  The court will therefore GRANT the motion as to these categories and order defendant to provide supplemental responses that are verified and Code-compliant and without objection by September 19, 2023.  That said, no sanctions will be imposed (at least assuming defendant makes good on its promise) as to these categories because plaintiff could have, and should have, waited for the date before bringing the motion.

As to numbers 16-19, 21, 34, 41, and 56, there is a problem.  All of them use the term “ENGINE DEFECT.”  That term is defined “to mean such defects which result in symptoms including, but not limited to illumination of the check engine light, illumination of all warning lights, setting of diagnostic trouble code (DTC) P0452 Evap system pressure sensor/switch circuit low; faulty fuel tank pressure sensor, setting of DTC C1411 electrical control module, faulty VDC/Hydraulic unit; and any other concern identified in the repair history for the subject 2020 Subaru Crosstrek; Vehicle Identification Number JF2GTDEC7LH283987.”  As worded, it is overbroad.  Plaintiff must limit the definition to specific problems that plaintiff experienced and that were not repaired.  (For example, if there was a problem but after the first repair it never recurred, that does not seem like it would really be at issue.)  The court also notes that plaintiff must make an initial showing justifying the need for the disputed discovery (unlike the situation regarding motions to compel further responses to interrogatories), and the court cannot see that this demand is reasonably tailored.  For example, the check engine light part of the definition is far too broad.  The light can come on for a myriad of reasons according to the Lee declaration.  And, the definition refers to problems but it also states that the definition is “including, but not limited to” the list that follows, suggesting that there could be a host of other things that would be included but are not specified.  Plaintiff needs to do more.  And plaintiff can do more.  Plaintiff has, or will soon have, access to the vehicle’s repair history.  Whatever caused the check engine light to illuminate will be known and plaintiff can use that information to tailor the requests.  The court also notes that plaintiff ought not define the problem by way of the symptom if possible; plaintiff should identify the problem by the defect to the extent possible.  After all, it is the defect that must be repaired; not the symptom.  (See Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138 [faulty transmission]; Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334 [fuel pump].)

The motion is therefore GRANTED IN PART AND DENIED IN PART WITHOUT PREJUDICE.  The parties are to meet and confer in light of the court’s ruling and reasoning and attempt to resolve any discovery differences as to the RFP.  Plaintiff will have 45 days (or such additional time as to which the parties might agree) to renew the motion starting today as to the non-vehicle specific requests.  All requests for sanctions are DENIED.

The court notes that it would not lose sleep were one party or the other to take a writ and if the Court of Appeal were to use this case to provide some strong appellate guidance on the permissible scope of discovery in a Song-Beverly Act case.  Just saying.