Judge: Melvin D. Sandvig, Case: 23CHCV03218, Date: 2024-10-07 Tentative Ruling
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Case Number: 23CHCV03218 Hearing Date: October 7, 2024 Dept: F47
Dept. F47
Date: 10/7/24
TRIAL DATE: 12/8/25
Case #23CHCV03218
MOTION TO
COMPEL FURTHER RESPONSES
(Request for
Production of Documents, Set 1)
Motion filed on 3/26/24.
MOVING PARTY: Plaintiff Wendy Hernandez
RESPONDING PARTY: Defendant Volkswagen Group of America,
Inc.
NOTICE: ok
RULING:
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of Plaintiff Wendy Hernandez’s
(Plaintiff) lease of a 2021 Volkswagen Atlas (the Vehicle) on 9/18/21. Defendant Volkswagen Group of America, Inc.
(Defendant) warranted the Vehicle.
Plaintiff alleges that the Vehicle was delivered to her with
defects and nonconformities to warranty and developed other serious defects and
nonconformities to warranty including, but not limited to, engine, electrical,
emission, structural, and suspension system defects. Plaintiff contends that she presented the
Vehicle to Defendant’s authorized repair facility(ies) for warranty repairs on
multiple occasions. Plaintiff claims
that none of the repairs performed by Defendant’s authorized repair facility(ies)
permanently repaired the defects.
Plaintiff contends that the issuance of Technical Service
Bulletins (TSBs) evidences the fact that Defendant had knowledge of the defects
with the Vehicle. Plaintiff contends
that Defendant has not adequately compensated her for the Vehicle which was
never fully repaired within a reasonable number of attempts.
On 10/24/23, Plaintiff filed this action against
Defendant for: (1) Violation of Song-Beverly Act – Breach of Express Warranty,
(2) Violation of Song-Beverly Act – Breach of Implied Warranty and (3)
Violation of Song-Beverly Act – Civil Code 1793.2. On 11/21/23, Defendant answered the
complaint.
On 12/12/23, Plaintiff served Defendant with Request for
Production of Documents, Set 1, by electronic mail. (Sogoyan Decl., Ex.3). The parties then agreed to extend the due
date for discovery responses to 2/5/24.
(Roberson Decl., Ex.B). On
2/2/24, Defendant served responses to the document requests by email. (Sogoyan Decl., Ex.4). On 3/6/24, Plaintiff’s counsel began meet and
confer efforts regarding what Plaintiff perceived to be deficiencies in the
responses. (See Sogoyan Decl.,
Ex.5-10).
On 3/26/24, Plaintiff filed and served the instant motion
seeking an order striking Defendant’s objections and compelling further responses
and production of responsive documents to Plaintiff’s Request for Production of
Documents, Set 1, Nos. 1-31. The caption
of the motion indicates that Plaintiff also requests unidentified
“sanctions.” (See Motion,
p.1:17). However, the type of sanctions
and against whom they are sought is not set forth in the body of the notice of
motion as required nor is a request for sanctions supported in the memorandum
of points and authorities. See
CCP 2023.040. Additionally, Plaintiff
did not efile the separate statement in support of the motion. However, a courtesy copy of the separate
statement was submitted to the courtroom which was used to review the motion. Defendant has opposed the motion and
Plaintiff has filed a reply to the opposition.
ANALYSIS
It appears that Plaintiff’s counsel has deliberately
misrepresented that Defendant served untimely responses to the subject
discovery. Multiple times in the moving
papers, Plaintiff’s counsel claims that “Defendant responded late”
to the subject discovery and those purportedly late responses included
objections. (emphasis in original) (See
Notice of Motion, p.2:19-20; Motion Memorandum of Points & Authorities, p.1:10-12,
p.4:12, p.4:24; Sogoyan Decl. ¶16).
Plaintiff’s counsel fails to mention or include the emails wherein
counsel for the parties agreed to mutually extend the deadlines to respond to
discovery until 2/5/24 making the responses served by Defendant on 2/2/24
early. (See Roberson Decl., Ex.B;
Sogoyan Decl., Ex.4).
Plaintiff’s counsel’s claim in the 3/6/24 meet and confer
letter that the responses served on 2/2/24 were somehow served on an incorrect
email address and therefore not received is also confusing. (See Sogoyan Decl., Ex.5). The proof of service attached to Defendant’s
responses indicates that they were served on 2/2/24 on three email addresses: kjacobson@quillarrowlaw.com, dmahnke@quillarrowlaw.com and e-service@quillarrowlaw.com, the
last of which is the email address listed for service in Plaintiff’s counsel’s
emails and is the email address of record in the court file. (See Sogoyan Decl., Ex.4).
Plaintiff’s 3/6/24 meet and confer letter ended with a
request that by 3/13/24, Defendant provide: (1) a written response to the meet
and confer letter, (2) counsel’s availability for a teleconference to meet and
confer regarding outstanding issues and (3) confirmation of a 15-day extension
of Plaintiff’s deadline to bring a motion to compel, if necessary. (Sogoyan Decl., Ex.5). On 3/7/24, Defendant’s counsel responded via
email indicating that a response to the meet and confer letter would be
provided 3/13/24, denying the request for a 15-day extension to file a motion
to compel further responses, indicating that counsel was available to meet and
confer on 3/14/24 and 3/19/24 and inviting Plaintiff’s counsel to call
Defendant’s counsel. (Sogoyan Decl., Ex.6). On 3/7/24, Plaintiff’s counsel sent another
email to defense counsel with Defendant’s counsel then indicating that a
response would be provided on or before 3/13/24. Id.
On 3/13/24, Defendant’s counsel sent a more detailed
response to Plaintiff’s 3/6/24 meet and confer letter concluding with another
request to meet and confer by telephone indicating availability on 3/15/24 or
3/19/24. (Sogoyan Decl., Ex.7). Rather than meet and confer by telephone as
requested, on Friday, 3/15/24 at 2:01 p.m., Plaintiff’s counsel sent
Defendant’s counsel another meet and confer letter. (Id., Ex.8-9). Plaintiff’s counsel concluded the 3/15/24
letter by requesting a response by 3/20/24 and indicating that Plaintiff was
willing to extend the time for Defendant to supplement its responses, if
Defendant was willing to give Plaintiff an extension to file a motion to
compel. Id.
On Monday, 3/18/24, Defendant’s counsel responded to the
3/15/24 letter asking whether Plaintiff’s counsel intended to meet and confer
by telephone as requested and requesting an extension to respond to the 3/15/24
letter until 3/22/24. (Sogoyan Decl.,
Ex.9). The response does not indicate
that Defendant granted Plaintiff an extension to file a motion to compel. Id.
On 3/18/24, Plaintiff’s counsel responded to defense counsel’s email
claiming that defense counsel was avoiding meeting and conferring in good faith. Id.
Defendant’s counsel responded claiming that it was Plaintiff’s counsel
who has avoided meeting and conferring by telephone despite its request to do
so in the first meet and confer letter. Id. On 3/22/24, Defendant’s counsel sent a
detailed response to Plaintiff’s 3/15/24 letter concluding with another request
to meet and confer by telephone on 3/27/24, or on another date amenable to
Plaintiff’s counsel. (Id.,
Ex.10).
Rather than meet and confer by telephone, Plaintiff’s
counsel filed and served this motion on 3/26/24.
Based on the foregoing, the Court questions whether the
instant motion is timely. As noted
above, it appears that pursuant to the agreed upon extension between counsel
for the parties, Defendant properly served its responses, by email, on
2/2/24. As such, a motion to compel
further responses was due to be filed and served on or before 3/22/24 (45 days
+ 2 court days for service of responses by email). CCP 2031.310(c); CCP 1010.6(a)(2)(B).
As noted above, on 3/7/24, Defendant specifically denied
Plaintiff’s request for a 15-day extension to bring a motion to compel. (Sogoyan Decl., Ex.6). While Plaintiff indicated a willingness to
extend the time for Defendant to provide further responses, if Defendant gave
Plaintiff an extension to file a motion to compel further responses and
Plaintiff’s counsel claims that Plaintiff’s counsel consented to an extension for
defense counsel to respond to Plaintiff’s 3/15/24 meet and confer letter if
Defendant granted an extension to Plaintiff “to pursue judicial intervention,”
there is no evidence that Defendant ever agreed to give such an extension. (Sogoyan Decl. ¶25, Ex.8, 9). CCP 2031.310(c) requires that a specific
later date to bring a motion to compel further responses be agreed upon in
writing. Plaintiff’s counsel never
indicates any specific extended date which was agreed upon in writing.
Unless counsel for the parties agree that the instant
motion was timely filed and served or additional evidence exists, based upon
the evidence before the Court, this Court only has jurisdiction to deny the
motion as it was filed and served beyond the deadline set forth in CCP
2031.310(c). See Sexton (1997)
58 CA4th 1403, 1409.
Additionally, it does not appear that Plaintiff met and
conferred in good faith before filing the instant motion. Despite defense counsel’s multiple offers to
meet and confer by telephone pursuant to Plaintiff’s counsel request in the
initial 3/6/24 meet and confer letter, Plaintiff’s counsel failed to schedule such
a meeting and filed and served the instant motion without doing so. Ironically, in the reply, Plaintiff’s counsel
indicates that it is willing to engaging in further meet and confer
efforts. (See Mahnke Decl. ¶32). Further, Plaintiff’s counsel improperly
relies on discovery issues and orders in other cases between the same
counsel. This is not a class action,
those cases are not related to the instant case and this Court is not bound by
any orders of another trial court in those separate cases. (See Reply and Mahnke Decl. ¶¶14-31).
Finally, it appears that the instant motion may be
moot. The opposition indicates that on
9/10/24, Defendant served supplemental responses to the requests and assured
Plaintiff’s counsel that it would produce documents regarding “substantially
similar” vehicles, limited to California, that it had previously objected
to. (See Opposition, p.7:12-17; Roberson
Decl. ¶14, Ex.J). However, Defendant
does not provide a copy of the purported supplemental responses. (Roberson Decl., Ex.J). If Defendant served supplemental responses to
the document requests at issue on 9/10/24, the instant motion is moot. If Plaintiff is still dissatisfied with the supplemental
responses served on 9/10/24, Plaintiff must meet and confer regarding those
responses and, if the matter is not resolved, timely file and serve a motion to
compel further responses addressing the deficiencies in the 9/10/24
supplemental responses.
CONCLUSION
First, if counsel for the parties agree that the instant
motion is timely, the next question is whether counsel agree that supplemental
responses to Plaintiff’s Request for Production, Set 1, were served on 9/10/24. If the answer to both questions is yes, the
instant motion will be placed off calendar as moot. As noted above, the parties must meet and
confer regarding the sufficiency of the supplemental responses and if the
matter cannot be informally resolved, Plaintiff must file and serve a motion
which addresses the supplemental responses.
See CCP 2031.310(c); CRC 3.1345(c)(2).
If counsel do not agree that the instant motion was
timely filed and served, the hearing will be continued to allow Plaintiff to
submit evidence to establish that the motion is timely (i.e., that the filing
and service of the motion on 3/26/24 is timely based on the service of the
responses and/or that there was an agreement in writing to extend the deadline
to file and serve the motion on 3/26/24).
Also, if counsel for the parties do not agree that
supplemental responses to the discovery were served on 9/10/24, the matter will
be continued to allow Defendant to provide evidence of the service of such
supplemental responses (i.e., providing a copy of the supplemental responses
which were not included in Ex.J to the Roberson Declaration).
If the hearing is continued, the supplemental papers
noted above are due to be filed and served at least 10 court days before the
continued hearing date. Such
supplemental briefs are limited to 10 pages each, excluding declarations and
exhibits. Each party may then respond to
the other’s supplemental papers with a 5-page brief which are due to be filed
and served at least 5 court days before the continued hearing date.
The supplemental briefing noted above is not intended to
take the place of a motion to compel further responses regarding any
supplemental responses served on 9/10/24.
As noted above, a new motion must be filed regarding such responses, if
the issues cannot be informally resolved.
Finally, the Court notes that Plaintiff’s counsel failed
to electronically bookmark the exhibits attached to the declarations filed in
support of the motion and reply as required by CRC 3.1110(f)(4). Counsel for the parties are warned that
failure to comply with this rule in the future may result in matters being
continued so that papers may be resubmitted in compliance, papers not being
considered and/or the imposition of sanctions.