Judge: Michael E. Whitaker, Case: 22SMCV00623, Date: 2023-08-24 Tentative Ruling

Case Number: 22SMCV00623    Hearing Date: August 24, 2023    Dept: 207

TENTATIVE RULING

            Plaintiff Carmen Millan Dominguez (“Plaintiff”) allegedly purchased a 2021 Jeep Gladiator with an express written warranty.  (Complaint ¶¶ 6, 10.)  Thereafter, Plaintiff alleges the subject vehicle had defects related to the body system, steering system, and safety system.  (Complaint ¶ 12.)  Plaintiff allegedly provided Defendant FCA US LLC (“Defendant”) an opportunity to service or repair the subject vehicle, but Defendant was unable to cure the alleged defect.  (Complaint ¶¶ 14-15.)  Accordingly, Plaintiff contends that under the Song-Beverly Consumer Warranty Act, Defendant had the statutory duty to (1) either repurchase or replace the subject vehicle; (2) commence service or repairs within a reasonable time; and (3) provide its authorized service and repair facilities sufficient service literature and replacement parts, yet failed to do so.  (Complaint ¶¶ 21, 27, and 32.)  Plaintiff further contends Defendant breached the express written warranty and the implied warranty of merchantability.  (Complaint ¶¶ 34-42.)

            Plaintiff moves the Court for an order compelling Defendant to serve further, code-compliant responses to the following discovery requests:

·         Request for Production of Documents (“RFP”), Set One, Nos. 16, 19, 20, 21, 32 and 42

Defendant opposes the motion, and Plaintiff has replied to the opposition.

PROCEDURAL REQUIREMENTS

1. Timeliness of Motion

A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which” the parties have agreed in writing.  (Code Civ. Proc., § 2031.310, subd. (c).)  Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to demands for production of documents.  (Ibid.)

            Defendant electronically served its responses to Plaintiff’s RFP, Set one, on November 28, 2022, but did not produce any documents.  Plaintiff timely moved to compel further responses on January 17, 2023.  Defendant has not objected to the timeliness of the motion.

2. Meet and Confer

A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., § 2031.310, subd. (b)(2).)  A meet and confer 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. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  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, 1434-1435, citations omitted [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend, supra, 61 Cal.App.4th at p. 1438.)

To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.)  In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

Here, as set forth in the Declaration of Corinna Jiang, counsel for Plaintiff, the Court finds that Plaintiff has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.  (See Jiang Decl. ¶¶ 32-40 and Exhibits. 15-22.)  Defendant does not argue otherwise. 

3. Separate Statement

California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted. 

            Here, Plaintiff has filed a separate statement related to the motion which complies with Rule 3.1345.

LEGAL STANDARDS

1.      DISCOVERY- GENERAL PRINCIPLES

            “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ. Proc., § 2017.010.) 

            “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

            Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

            With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:  (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.  (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.  (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).)  “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (Code Civ. Proc., § 2031.230.)

ANALYSIS

            Plaintiff seeks further responses regarding the following requests: 

·         RFP No. 16: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any internal analysis or investigation by YOU or on YOUR behalf regarding the POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such POWERTRAIN DEFECT, any such investigation to design a permanent repair procedure for such POWERTRAIN DEFECT, any such investigation into the failure rates of parts associated with such POWERTRAIN DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

·         RFP No. 19: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to the POWERTRAIN DEFECT, including but not limited to any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.

·         RFP No. 20: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning failure rates of vehicles of the same year, make, and model as the SUBJECT VEHICLE as a result of the POWERTRAIN DEFECT.

·         RFP No. 21: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any fixes for the POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.

·         RFP No. 32: All DOCUMENTS that relied (sic) upon by YOU in support of YOUR contention that YOU were under no obligation to promptly replace or repurchase the SUBJECT VEHICLE.

·         RFP No. 42: All DOCUMENTS which evidence YOUR organizational charts of people within YOUR customer service call center or prelitigation department.

With respect to requests 16 and 21, Defendant has responded that it is “unable to comply” with each request because after conducting a “diligent search and reasonable inquiry” it has determined that “no documents exist or have ever existed responsive to this request.”  Plaintiff counters that there are eight technical service bulletins and failure rate documents relating to the powertrain defect, so further backup documents, such as engineering emails and root cause analysis documents that led to the creation of the TSBs must also exist.

With respect to requests 19, 20, 32 and 42, Defendant has responded that it has complied or will “comply in full[.]”  With respect to request 32, Plaintiff argues that Defendant has produced some documents, but not all documents for the relevant time periods.

After Plaintiff filed the instant motion, Defendant provided further supplemental responses to RFP Nos. 19 and 20, indicating it has produced all responsive documents within its possession, custody, and control.

Defendant’s further responses as noted in Plaintiff’s separate statement are code compliant.  (See Code Civ. Proc., §§ 2031.210, 20131.230.)  For each of the contested responses, Defendant has indicated that it has conducted a diligent search and reasonable inquiry, and either that it has complied (or will comply) in full, or that no such documents exist.  That is all the code requires. 

Plaintiff appears to take issue with the production itself, but Plaintiff has noticed the instant motion pursuant to Code of Civil Procedure section 2031.310, which pertains to the responses, not Code of Civil Procedure section 2031.320, which pertains to the production.  (See, e.g., New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1427–1428 [court of appeal highlights the difference between a motion to compel a further response and motion to compel compliance regarding demands for documents].)  Here, the Court finds that Defendant’s further responses are code compliant.  And to the extent Plaintiff takes issue with the production, Plaintiff must bring a motion to compel compliance under Section 2031.320.

CONCLUSION AND ORDERS

            Therefore, the Court denies Plaintiff’s motion to compel further responses per Code of Civil Procedure section 2031.310. 

            Plaintiff shall provide notice of the Court’s order and file a proof of service regarding the same. 

DATED:  August 24, 2023                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court