Judge: Michelle Williams Court, Case: 21STCV24044, Date: 2022-10-26 Tentative Ruling
Case Number: 21STCV24044 Hearing Date: October 26, 2022 Dept: 74
21STCV24044 ERIN
CARPENTER vs NISSAN NORTH AMERICA
Plaintiff’s Motion to Compel Further Discovery Responses
to Plaintiff’s Requests for Production of Documents, Set One and for Monetary
Sanctions
TENTATIVE RULING:
Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests
for Production of Documents, Set One and for Monetary Sanctions is GRANTED in
part.
Defendant is ordered to serve further verified, code
compliant responses to Plaintiff’s Requests for Production of Documents, Set
One, Nos. 1, 8, 11, 12, 14, 17, 18, 19, 21, 22, 23, 55, 56, 57, 58, 59, and 70
as limited herein, within 20 days and to produce all responsive documents
within 30 days. To the extent Defendant claims the attorney-client or work
product privileges apply over any of the responsive documents or information,
it shall simultaneously serve a privilege log with the document production
that, at a minimum, identifies each document for which a privilege is claimed,
its author, recipients, the date of preparation, the privilege claimed, and any
other information necessary to evaluate the privilege. Defendant shall remove
all other objections from its supplemental responses.
The Court declines to impose sanctions.
Background
On June 29, 2021, Plaintiff
Erin Carpenter filed this lemon law action against Nissan North America arising
out of Plaintiff’s purchase of a 2018 Nissan Rogue. The complaint asserts causes of action
for: (1) violation of Subdivision (d)
of Civil Code Section 1793.2, (2) violation of Subdivision (b) of Civil Code
Section 1793.2, (3) violation of Subdivision (a)(3) of Civil Code Section
1793.2, (4) breach of express written warranty; and (5) breach of implied warranty
of merchantability. The complaint seeks civil penalties and alleges the vehicle
suffered from numerous electrical defects. (Compl. ¶ 9.)
Motion
On August 1,
2022, Plaintiff filed a motion to compel Defendant to provide further responses
to Plaintiff’s Requests for Production of
Documents, Set One, Nos. 1, 8, 11, 12, 14, 17, 18, 19, 21, 22, 23, 55, 56, 57,
58, 59, and 70.
Defendant
contends the motion should be denied because the notice of motion is not signed
by counsel. (Opp. at 12:18-13:3.) However, the notice of motion was electronically
filed by counsel and the motion shall not be denied on this basis. (Cal. R.
Ct., rule 2.257(c)(1) (“If a document does not require a signature under
penalty of perjury, the document is deemed signed by person who filed it
electronically.”).)
Opposition
In
opposition, Defendant contends it should not be required to respond to
discovery while its arbitration motion is undetermined, its responses to three
of the requests are complete and code-compliant, and its objections are
meritorious to the remaining requests at issue.
Reply
In reply, Plaintiff
contends there is good cause to produce the documents sought, Defendant failed
to justify its objections, and the motion should not be stayed.
Judicial
Notice
Defendant
requests the Court take judicial notice of court documents filed in this
action. The request is GRANTED. (Evid. Code § 452(d).)
Motion
to Compel Further Responses
Standard
The propounding party may bring a
motion to compel further responses to requests for production if it believes the
statement of compliance is incomplete, the representation of an inability to
comply is inadequate, incomplete, or evasive, or if an objection is without
merit or too general. (Code Civ. Proc. § 2031.310.) The motion must be
accompanied by a meet and confer declaration, (Code Civ. Proc. §§ 2016.040; 2031.310(b)(2)),
and a separate statement. (Cal. R. Ct., rule 3.1345.)
As an additional requirement only as to requests for
production, the motion must set forth specific facts showing good cause
justifying the discovery sought. (Code Civ. Proc. § 2031.310(b)(1).) “[T]hat
burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court, 96
Cal. App. 4th 443, 447 (2002).) The
opposing party bears the burden of justifying any objections. (Fairmont Ins.
Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior
Court (2002) 95 Cal.App.4th 92, 97-98; Williams
v. Superior Court (2017) 3 Cal.5th 531, 541.)
Discovery at Issue and Meet
and Confer Efforts
Plaintiffs’ motion is accompanied by
the required separate statement and meet and confer declaration.
Plaintiff served the Requests for
Production of Documents, Set One on April 19, 2022. (Neubauer Decl. ¶ 21, Ex. 7.)
Defendant provided responses on August 12, 2022. (Id. ¶ 23, Ex. 8.) On
September 9, 2022, Plaintiff sent a meet and confer letter addressing the
requests at issue. (Id. ¶ 33, Ex. 10.) Defendant did not respond. (Id. ¶ 33.) On
September 19, 2022, Plaintiff requested a response to the meet and confer
letter and, as of September 28, 2022, Defendant had not responded. (Id. ¶¶ 36-37.)
Defendant Has Not Properly
Obtained a Stay of the Action
In opposition, Defendant contends the
action must be stayed until its motion to compel arbitration is resolved. (Opp.
at 4:2-7:2.) Pursuant to Code of Civil Procedure section 1281.4, “[i]f an
application has been made to a court of competent jurisdiction, whether in this
State or not, for an order to arbitrate a controversy which is an issue
involved in an action or proceeding pending before a court of this State and
such application is undetermined, the court in which such action or proceeding
is pending shall, upon motion of a party to such action or proceeding, stay the
action or proceeding until the application for an order to arbitrate is
determined and, if arbitration of such controversy is ordered, until an
arbitration is had in accordance with the order to arbitrate or until such
earlier time as the court specifies.” As expressly stated in the statute, a
stay under Section 1281.4 is not automatic and must be obtained via motion. (Ibid.
See also Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th
1790, 1796.)
While
Defendant requested that the Court stay this action pending resolution of the
motion within the notice of motion to compel arbitration, Defendant failed to
make and obtain a ruling on a separate motion to stay this action. The statute does not provide for a stay
upon the mere filing of an arbitration motion. Without the Court’s ruling on a motion to stay, this action
is not currently stayed and Defendant is not absolved from its discovery
obligations.
Plaintiff Has Demonstrated
Good Cause for the Documents Sought
Plaintiff’s motion and separate
statement generally demonstrate good cause for production of the documents
sought as the requests are reasonably calculated to lead to the discovery of
admissible evidence. (See also Neubauer Decl. ¶ 22 (“All this information is
relevant as to 1) whether the Subject Vehicle suffered from a defect; 2)
whether based on its internal testing and investigation NNA could repair it to
conform to warranty within a reasonable number of opportunities; 3) whether NNA
provided its repair facilities with sufficient literature and parts to complete
repairs during the warranty period; 4) whether NNA knew it could not repair the
Subject Vehicle but refused to repurchase it nonetheless; and 5) NNA’s
knowledge prior to Plaintiff’s acquisition of the Subject Vehicle that the
vehicle and its electrical system as well as its component parts are defective
and susceptible to sudden, premature, and catastrophic failure.”).)
Once good cause has been shown, a
respondent has the burden to justify objections in response to a motion filed
to compel further responses. (Fairmont,
supra, 22 Cal.4th at 255; Kirkland,
supra, 95 Cal.App.4th at 97-98.) Defendant failed to support its claim of
burden. (Opp. at 15:19-28. See Williams, supra, 3 Cal.5th at 549–550
(“An objection based upon burden must be sustained by evidence showing the
quantum of work required. As the objecting party, [Defendant] had the burden of
supplying supporting evidence, but in response to [Plaintiffs’] motion to
compel it offered none.”) (quotations and citations omitted).)
Defendant provided substantive
responses with objections to Requests Nos. 1, 8, and 12, but otherwise responded
solely with objections.
Contrary to Defendant’s contentions,
(Opp. at 8:4-9:19; 11:21-12:17), other customer’s complaints, defects in the
vehicles of the same year, make, and model, and its applicable policies are
relevant and discoverable. In Donlen v.
Ford Motor Company (2013) 217 Cal.App.4th 138, 154, the court upheld a
trial court’s determination that evidence of “the transmission model Ford
installed in plaintiff’s truck and other vehicles” should not be excluded from
trial as prejudicial in a Song–Beverly Act case brought by a single plaintiff.
Therefore, relevant discovery may extend beyond Plaintiffs’ specific vehicle.
(Cf. Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555
(“Evidence of prior accidents is admissible to prove a defective condition,
knowledge, or the cause of an accident, provided that the circumstances of the
other accidents are similar and not too remote.”); Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th
174, 186 (“A decision made without the use of reasonably available information
germane to that decision is not a reasonable, good faith decision.”); Oregel v. American Isuzu Motors, Inc.
(2001) 90 Cal.App.4th 1094, 1105 (finding car manufacturer’s internal policies
relevant to whether it evidenced an “unreasonable and not a good faith effort
to honor its statutory obligations to repurchase defective cars.”).)
Because the documents sought are
directly relevant to Plaintiff’s claims, Defendant’s contentions that the
requests are harassing and disproportionate “considering the amount in
controversy and the needs of the case” lack merit. (Opp. at 10:1-11:20.)
Defendant also failed to justify its burden objection. (Williams, supra,
3 Cal.5th at 549–550 (“An ‘objection based upon burden must be sustained by
evidence showing the quantum of work required.” (West Pico Furniture Co. v.
Superior Court, supra, 56 Cal.2d at p. 417, 15 Cal.Rptr. 119, 364 P.2d
295.) As the objecting party, Marshalls had the burden of supplying supporting
evidence, but in response to Williams's motion to compel it offered none.”).)
However, as noted below, many of
Plaintiff’s requests are impermissibly overbroad and shall be limited by the
Court.
Requests Nos. 1, 8, and 12
Defendant contends it provided complete
and code-compliant answers to Requests Nos. 1, 8, and 12. (Opp. at 7:5-23.)
Defendant responded to each request by stating “[a]fter a diligent search and
reasonable inquiry, Nissan will comply in whole with this request and produce” a
list of enumerated documents. Defendant also included objections to the terms
“you” and “your” and “to the extent that Plaintiff’s request seeks to expand
Nissan’s discovery obligations beyond those required by the Code of Civil
Procedure” in its Reponses to Requests Nos. 8 and 12. (Neubauer Decl. Ex. 8.) Defendant
also responded “Nissan did not sell, lease, or service the Subject Vehicle.
Nissan refers to the independent authorized sales and service facilities that
Nissan believes may be in possession, custody, or control of the requested
documents” in its response to Request No. 12.
Defendant did not meet its burden to
justify its objections. Moreover, Defendant’s responses are not code compliant.
To be code compliant, a response that Defendant will comply “in whole” must
state “that all documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no objection is
being made will be included in the production.” (Code Civ. Proc. § 2031.220.)
Defendant’s responses lack this averment and are therefore non-compliant.
Furthermore, Defendant’s responses should not identify documents. Rather, the
Discovery Act requires that Defendant label its production to correspond with
the requests. (Code Civ. Proc. § 2031.280(a) (“Any documents or category of
documents produced in response to a demand for inspection, copying, testing, or
sampling shall be identified with the specific request number to which the
documents respond.”).) Plaintiff is entitled to a verified response confirmed
Defendant has produced all responsive documents. The motion is GRANTED as to
these requests and Defendant must provide further, code-compliant responses to
Requests Nos. 1, 8, and 12.
Requests Nos. Nos. 18, 19, and 22
In Plaintiff’s requests, REPAIR
DOCUMENTS are defined as “all documents which describe, outline, detail, or
otherwise specify diagnostic and repair procedures to be used by Defendant’s
technicians,” ELECTRICAL DEFECTS, as defined, are narrowly defined to specific
symptoms in Plaintiff’s vehicle, and NISSAN VEHICLES mean vehicles of the same
make, model, and year as Plaintiff’s vehicle.
Request No. 18 seeks All DOCUMENTS,
including electronically stored information and electronic mails, concerning
any internal analysis or investigation by YOU or on YOUR behalf regarding
ELECTRICAL DEFECTS in NISSAN VEHICLES.
Request No. 19 seeks All DOCUMENTS,
including electronically stored information and electronic mails, concerning
any communications YOU have had regarding ELECTRICAL DEFECTS in NISSAN
VEHICLES.
Request No. 22 seeks All DOCUMENTS,
including electronically stored information and electronic mails, concerning or
relating in any way to any decision to modify the ELECTRICAL SYSTEM, and/or any
of its component parts, in response to ELECTRICAL DEFECTS in NISSAN VEHICLES.
Each of these requests are narrowly
tailored to the specific defects at issue and the year, make, and model of
Plaintiff’s vehicle. As noted above, these documents are relevant and
discoverable and Defendant failed to meet its burden to justify its objections.
The motion is GRANTED as to these requests and Defendant must provide further,
code-compliant responses to Requests Nos. 18, 19, and 22.
Request Nos. 11, 14, 17,
21, 23, 55-59, and 70
As to Requests Nos. 11, 14, 17, 21, 23,
55-59, and 70, the Court agrees with Defendant that the requests are
impermissibly overbroad in one or all the following ways: the request are not
limited to the defects experienced by Plaintiffs and alleged in this action;
not limited to vehicles of the same year, make, and model as Plaintiff’s
vehicle; or not limited to California consumers. Accordingly, the Court revises
each of the requests below, with the added limitations in brackets.
Requests No. 11 is revised to seek
REPAIR DOCUMENTS relating to ELECTRICAL DEFECTS in NISSAN VEHICLES [in
California].
Request No. 14 is revised to seek “All
DOCUMENTS, including electronically stored information and electronic mails,
concerning, referring, or relating to any field technical reports from YOUR
agents, representatives, or employees [in California] to YOU which provide YOU
with information relating to common parts failures in NISSAN VEHICLES [with
ELECTRICAL DEFECTS in California].
Request No. 17 is revised to seek All
DOCUMENTS, including electronically stored information and electronic mails,
concerning, referring, or relating to any field technical reports from YOUR
agents, representatives, or employees [in California] to YOU which provide YOU
with information relating to repeat repair failures in NISSAN VEHICLES [with
ELECTRICAL DEFECTS in California].
Request No. 21 is revised to seek All
DOCUMENTS, including electronically stored information and electronic mails,
concerning any decision to issue any notices, letters, campaigns, warranty
extensions, technical service bulletins and recalls concerning the ELECTRICAL DEFECTS
in NISSAN VEHICLES [to consumers in California].
Request No. 23 is revised to seek All DOCUMENTS,
including electronically stored information and electronic mails, concerning
customer complaints, claims, reported failures, and warranty claims [in
California] related to ELECTRICAL DEFECTS in NISSAN VEHICLES, including 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.
Request No. 55 is revised to seek All
DOCUMENTS, including electronically stored information and electronic mails,
regarding any communications between YOU and any [California or Federal]
government agency or entity (e.g. National Highway Traffic Safety
Administration (“NHTSA”)) regarding ELECTRICAL DEFECTS in NISSAN VEHICLES.
Request No. 56 is revised to seek All
National Highway Traffic Safety Administration (“NHTSA”) complaints in YOUR
possession that relate to ELECTRICAL DEFECTS in NISSAN VEHICLES [in California].
Request No. 57 is revised to seek All
Early Warning Reports (“EWR”) YOU submitted to the National Highway Traffic
Safety Administration (“NHTSA”) concerning [ELECTRICAL DEFECTS in] NISSAN
VEHICLES.
Request No. 58 is revised to seek All
Transportation Recall Enhancement, Accountability, and Documentation (“TREAD”)
reports YOU submitted concerning [ELECTRICAL DEFECTS in] NISSAN VEHICLES.
Request No. 59 is revised to seek
Defendant’s recall policy and procedure [applicable to NISSAN VEHICLES with
ELECTRICAL DEFECTS in California.]
Request No. 70 is revised to seek All
DOCUMENTS reflecting or referring to the disclosure of a problem or defect
relating to the ELECTRICAL SYSTEM in NISSAN VEHICLES, made to [California] purchasers
or lessees of NISSAN VEHICLES.
The motion is GRANTED as to Requests
Nos. 11, 14, 17, 21, 23, 55-59, and 70, as revised herein.
Sanctions
Pursuant to Code of Civil Procedure
section 2031.310(h), “the court shall impose a monetary sanction under Chapter
7 (commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further response to a
demand, unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust.”
Plaintiff requests sanctions in the
amount of $5,220.00 against Defendant and its counsel of record. The Court
finds both parties acted with substantial justification and declines to impose
sanctions.