Judge: Michael Shultz, Case: 23CMCV00277, Date: 2023-12-07 Tentative Ruling
Case Number: 23CMCV00277 Hearing Date: December 7, 2023 Dept: A
23CMCV00277
Jose Ortega v. FCA US LLC
[TENTATIVE] ORDER
GRANTING PLAINTIFF’S TWO MOTIONS TO COMPEL DEFENDANT’S FURTHER RESPONSES TO (1)
SPECIAL INTERROGATORIES, SET ONE; AND (2) REQUEST FOR PRODUCTION OF DOCUMENTS,
SET ONE
I.
BACKGROUND
The complaint
alleges that Defendant, FCA US LLC (“FCA”), issued a written warranty in
connection with Plaintiff’s purchase of a 2012 Jeep Grand Cherokee manufactured
by FCA. The vehicle allegedly suffered from substantial safety defects which FCA
failed to remedy in violation of the Song-Beverly Consumer Warranty Act (“the
SBA”).
II.
ARGUMENTS
Plaintiff requests
an order to compel Defendant’s further responses to special Interrogatories and
request for request for production of documents served on April 14, 2023.
Defendant served unverified responses to written discovery on May 17, 2023, and
after efforts to meet and confer, Defendant served supplemental responses on
August 23, 2023. Defendant maintained objections and failed to produce any
documents or further response to interrogatories despite Plaintiff’s efforts to
meet and confer.
In opposition, Defendant argues that it has served
further supplemental responses to produce documents “to the extent it can” and has
ultimately produced verifications despite the initial delay, which resulted
from Defendant’s mistake. Defendant
argues the responses to special interrogatories do not require a further supplemental
response.
Plaintiff argues that the discovery is relevant
to Plaintiff’s claims. None of Defendant’s objections have merit.
III. DISCUSSION
Where a party fails to timely respond to
interrogatories and a document request, the court has authority to compel a
response. (Code Civ. Proc., §2030.290(b), §2031.300(b)). Untimely responses
result in a waiver of objections. (Code Civ. Proc., § 2030.290(a), §
2031.300(a). Defendant served unverified discovery responses on May 17, 2023,
and did not send verifications for almost three months. (Decl. of Nicholas
Yakoobian, ¶ 11.) Accordingly, all objections were waived. (Appleton
v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“
Unsworn responses are tantamount to no responses at all.”].)
Relief from waiver may be made by motion
showing the untimely response was due to mistake, inadvertence, surprise, or
excusable neglect. (Code Civ. Proc., §§ 2030.290, 2031.300.) Defense counsel’s declaration does not attest
to any facts showing a basis for relief from waiver. (Decl. of Vanessa V. Dao.)
At issue are four categories of documents
relating to Defendant’s policies and procedure manuals provided to authorized
repair facilities (RPD No. 10), documents concerning Defendant’s handling of
repeat customer complaints (RPD No. 20), procedures for handling customer
complaints since Plaintiff acquired the vehicle (RPD No. 24), policies and
procedures relating to Defendant’s issuance of refunds or providing replacement
vehicles under the Song-Beverly Consumer Warranty Act (“SBA”) (RPD No. 25) and technical
hotline information referring to the
“video routing module” and its failure rates, “water seal patch,” “vehicle
screens,” “radio/navigation/telematics” in vehicles of the same make, model,
and year (RPD 41-45.)
There are four special interrogatories at
issue that relate to Plaintiff’s vehicle and seek witness identification of
persons who performed warranty repairs on Plaintiff’s vehicle (SI 14), who
inspected or tested the subject vehicle (SI 20), the identity of supervisors
responsible for ensuring whether Defendant is properly determining whether a
vehicle is eligible for repurchase or replacement (SI 39), and all individuals
responsible for Defendant’s decision not repurchase or replace Plaintiff’s
vehicle (SI 43.)
A. Request for Production of Documents, Set
One
All of Defendant’s responses to the
document requests are not code-compliant. While Defendant states it intends to
comply “in full,” it unilaterally limited production “subject to a protective
order.” The Court determines whether there is good cause to issue a protective
order upon motion. (Code Civ. Proc., § 2030.090; § 2031.060.) Regardless, any objections to
discovery previously made have been waived.
With
respect to RPD 41-45 requesting technical hotline documents relating to
communications with repair facilities concerning diagnosis and repair of particular
defects, Defendant again limited production only to Plaintiff’s specific
complaints. Defendant would only agree to a search if Plaintiff provided specific
search terms. (Sep. Stmt. ISO of motion, 12:7-12.) This is not a compliant
response; Defendant avoids its obligation to perform a diligent
search and make a reasonable inquiry to comply with a demand for documents as
particularly described by Plaintiff. (Code Civ. Proc., § 2031.290.)
Additionally,
Plaintiff is entitled to discover “other vehicle evidence” which is relevant
because Plaintiff must establish Defendant’s knowledge of the defect in the
same vehicle, not just Plaintiff’s 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. (Donlen v. Ford Motor Co.
(2013) 217 Cal.App.4th 138, 154 [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."].)
B. Special interrogatories, Set One
Plaintiff
is entitled to witness identity and location information for persons involved
with inspecting and testing Plaintiff’s vehicle. (Code Civ.
Proc., § 2017.010.). Although disclosure may invade percipient witnesses’ privacy,
there is generally no protection for the identity, addresses and phone numbers
of such witnesses except where there is a risk of physical harm to the witness.
(Puerto
v. Superior Court (2008) 158 Cal.App.4th 1242, 1251–1252.)
Their willingness or unwillingness to testify is not relevant as “witnesses may
be compelled to appear and testify whether they want to or not.” (Id. at
1252.)
Defendant’s supplemental response for such
request for information is incomplete and evasive. Defendant refers to technicians
in part by number and fails to include location information as requested by
Plaintiff. (SI No. 20.)
Defendant’s response to a request for the
identity of a supervisor charged with ensuring that Defendant is properly
determining eligibility requirements for repurchase or replacement is
incomplete and evasive. Defendant contends it will reveal that person’s
identity in response to a deposition notice for Defendant’s person most
knowledgeable. (Defendant’s Sep. Stmt. 6:5-13; SI 39, 43.) There is no basis
for avoiding a response. Plaintiff is entitled to the use of interrogatories “in
addition to and exclusive of the right to take the deposition of the same
party, and either procedure may be resorted to before or after the other.” (Greyhound
Corp. v. Superior Court In and For Merced County
(1961) 56 Cal.2d 355, 373.)
The Discovery Act entitles Plaintiff to
take the deposition of a person most qualified on a particular topic as well as
the particular person who may have decided whether to repurchase or replace
Plaintiff’s vehicle. They may be two different people, one a fact witness, and
the other generally knowledgeable about a topic. In any event, Defendant does
not provide any justification for not responding to the interrogatory.
Defendant contends
that it has provided a further supplemental response to that special
interrogatory. The supplemental
response, however, does not render this motion moot. At the time Plaintiff
filed the motion, Defendant refused to provide further supplemental responses.
IV.
CONCLUSIONS