Judge: Michael Shultz, Case: 22CMCV00217, Date: 2023-04-25 Tentative Ruling
Case Number: 22CMCV00217 Hearing Date: April 25, 2023 Dept: A
22CMCV00217
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES AND DOCUMENTS TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET
ONE.
I.
BACKGROUND
The complaint alleges
that Plaintiff purchased a vehicle manufactured by Defendant. The vehicle
developed defects which Defendant failed to remedy resulting in violations of
the Song-Beverly Consumer Warranty Act (“the Act”).
II. ARGUMENTS
Plaintiff requests an order
compelling Defendant to produce documents. Defendant has asserted meritless
objections and non-responsive statements. Plaintiff requests imposition of
sanctions. Defendant argues that there is no good cause for “far reaching” discovery.
The requests are not specific and are overbroad. In reply, Plaintiff states
that Defendant has not produced engineering and root cause analysis report or documents
of policies and procedures used in evaluating consumers’ requests for vehicle
repurchases. Defendant failed to justify any of its objections.
III. LEGAL STANDARDS
A motion to compel further
responses to requests for production of documents is proper where Plaintiff
believes the response is incomplete, a representation of inability to comply is
inadequate, incomplete, or evasive and/or an objection in the response is
without merit or too general. (Code Civ.
Proc., §2031.310.) The parties have met and conferred informally and with the
court without resolution.
The scope of discovery is
liberally construed in favor of disclosure “as a matter of right unless
statutory or public policy considerations clearly prohibit it.” (Williams v. Superior Court (2017) 3 Cal.5th 531,
541.) The broad scope of permissible
discovery includes “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.)
To prevail on a claim for
violation of the Song-Beverly Consumer Warranty Act (“the Act”) Plaintiff’s
burden is to establish that “(1) the vehicle had a nonconformity covered by the
express warranty that substantially impaired the use, value or safety of the
vehicle (the nonconformity element); (2) the vehicle was presented to an
authorized representative of the manufacturer of the vehicle for repair (the
presentation element); and (3) the manufacturer or his representative did not
repair the nonconformity after a reasonable number of repair attempts (the
failure to repair element)." (Oregel v. American Isuzu Motors, Inc. (2001) 90
Cal.App.4th 1094, 1101.) The Act requires that "the
manufacturer maintain or designate and authorize service and repair facilities
in the state … i.e., usually, automobile dealerships with service departments
thereby making a manufacturer capable of becoming aware of every failed repair
attempt.”)
In response to the discovery,
Defendant is obligated to make affirmative representations that the requested documents
exist, or if not, that a diligent search and inquiry was made and specifically identify
in a privilege log what, if any, documents were withheld. (Code Civ. Proc., §§ 2031.230, 2031.240.)
If Defendant is unable to comply,
Defendant must state whether 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. (Id.)
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.
(Id.)
IV. DISCUSSION
A.
Requests 16,
19, 21, 33
Preliminarily, in
determining whether a violation of the Act occurred, the jury can consider
whether “(1) the manufacturer knew the vehicle had not been repaired within a
reasonable period or after a reasonable number of attempts, and (2) whether the
manufacturer had a written policy on the requirement to repair or replace. (Id.
at pp. 185-186.)” (Jensen v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112, 136.) These
requests seek documents concerning internal investigation and root cause analyses,
customer complaints, failure rates, fixes, and documents supporting Defendant’s
contention not to repair or replace for the same engine defect in vehicles of
the same year, make, and model.
The scope of
documents extending to vehicles of the same make and model (“other vehicle
evidence”) is relevant because Plaintiff must establish Defendant’s knowledge
of the defect in the same vehicle and whether Defendant complied with its obligations
to repair or replace the vehicle. The Act requires the manufacturer to
designate service and repair facilities throughout the state which enable the
manufacturer to become aware of every failed repair attempt. (Krotin at 303; Donlen v. Ford Motor Co. (2013)
217 Cal.App.4th 138, 153 [Testimony
about a defective transmission installed in plaintiff’s truck and other trucks
and what the manufacturer did to notify dealers and technicians about problems
with this transmission model was “certainly probative and not unduly
prejudicial."].)
Defendant’s
objections are without merit. The requests are not overly broad or vague and
ambiguous. Defendant has not established that the documents seek proprietary or
confidential information or are protected by privilege. Regardless, Defendant’s
remedy is to move for a protective order, not refuse to respond or unilaterally
impose limitations on Plaintiff’s discovery. Additionally, where documents are
withheld pursuant to a privilege, Defendant is required to provide a privilege
log describing the privileged documents with particularity to permit a
determination of whether or not any privilege applies. (Code Civ. Proc., § 2031.240 (d).)
Defendant has
not established that compliance with the requests will be unreasonably
burdensome and oppressive. To support an objection of oppression,
there must be some showing by the opposing party either of an intent to create
an unreasonable burden or that the ultimate effect of the burden is
incommensurate with the result sought. (W. Pico Furniture Co. v. Superior Court (1961) 56
Cal.2d 407, 417.) Oppression must not be equated
with burden; “[t]he objection based upon burden must be sustained by evidence
showing the quantum of work required, … .” (Id.) Defendant has not met
its burden.
Defendant
contends it is merely a distributor and not a manufacturer of the vehicle, and
therefore, it does not have the requested documents (Decl. of Jordan Pratty.) Defendant
did not object to the document requests on this ground. Even if it did,
Defendant is required to affirmatively explain why it cannot comply; Defendant
refused to produce any documents. Finally, Mr. Pratty, as Defendant’s counsel,
has not shown the basis for his knowledge of documents that are or are not in Defendant’s
possession.
B.
Requests 43
Plaintiff
requests documents showing organizational charts within Defendant’s customer
service call center or prelitigation department. Defendant asserted the
identical objections, none of which have merit. As Plaintiff observes, this is
relevant to the discovery of Defendant’s policy in responding to customer
complaints and whether Defendant made a “good faith effort to honor its
statutory obligations to repurchase defective car. (Oregel at 1105 [“internal policies that erected hidden obstacles
to the ability of an unwary consumer to obtain redress under the Act” are
relevant].)
Whether
Defendant acted in good faith to comply with the Act is relevant to the
recovery of civil penalties if the buyer can show that “the manufacturer's
failure to comply was willful. The penalty is important ‘as a deterrent to
deliberate violations. Without such a provision, a seller or manufacturer who
knew the consumer was entitled to a refund or replacement might nevertheless be
tempted to refuse compliance in the hope the consumer would not persist, secure
in the knowledge its liability was limited to refund or replacement.’” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.)
Finally, Plaintiff
did not request imposition of sanctions, and none is awarded.
V.
CONCLUSION
Based on the
foregoing, Plaintiff’s Motion is GRANTED. Defendant is ordered to serve verified,
code-compliant responses to the document requests and produce documents within
10 days.