Judge Ralph C. Hofer, Case 22GDCV00440 2023-01-13 Tentative Ruling

Plaintiff Domingo Covarrubias alleges that in July of 2020, plaintiff leased a 2020 Alfa Romeo Giulia vehicle. Plaintiff alleges that in connection with the purchase, plaintiff received an express written warranty from defendant FCA US LLC, pursuant to which defendant undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that the defects and nonconformities to warranty manifested within the warranty period, and substantially impair the use, value or safety of the vehicle. The complaint alleges that plaintiff delivered the vehicle to an authorized FAC USA LLC repair facility, but defendant was unable to conform plaintiff’s vehicle to the applicable express warranty after a reasonable number of repair attempts, and failed to either promptly replace the new motor vehicle or promptly make restitution.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

Plaintiff argues that the requests at issue seek documents falling into three categories. Plaintiff argues that the first category includes requests relating to plaintiff’s own vehicle. (Requests Nos. 1-15). The specific requests mentioned in the notice of Motion are Nos. 5, 6, 10, 11,13, and 14.

A review of the requests show that they request all documents which evidence, describe, refer or relate to any inspection of the subject vehicle, photographs and videotapes of the subject vehicle, documents reflecting the warranty repair history of the vehicle, documents reflecting the contact between defendant and plaintiff, documents reflecting contact between defendant and any other person regarding the subject vehicle, and documents evidencing or relating to written or recorded statements concerning the subject vehicle.

The responses are either that FCA US will produce a repair order detail report for the subject vehicle, and repair orders obtained from repair facilities, and then, for some, a statement that FCA did not service the subject vehicle and referring plaintiff to certain Alfa Romeo and Fiat repair facilities. Some responses indicate that “FCA US has conducted a diligent search and reasonable inquiry in an attempt to comply with this request, however, FCA US is unable to comply because the responsive documents are not within its possession, custody or control.”

It is clear that these requests are directly relevant to the issues in this matter, as they are expressly limited to information concerning dealings with the very vehicle which is the subject of this case. Good cause has accordingly been established for their production, shifting the burden to defendant to justify objections.

Defendant in opposition argues that FCA has already produced all responsive documents to nearly all of plaintiff’s requests at issue in this motion, including all responsive documents related to the subject vehicle, and documents related to policies and procedures. There is no representation in a declaration that further responses have been served since the filing of this motion, or a copy attached of such further responses.

Defendant does not in the opposition or responsive separate statement establish that the responses are code compliant, or that the objections are justified. These requests relate only to the subject vehicle and cannot be overly broad. The opposition fails to justify the other objections, such as that the requests are vague or ambiguous. The motion as to these requests accordingly is granted, and further code-compliant responses are ordered to be served, without objection, and responsive documents are ordered to be produced.

A review of these requests show they seek the warranty claims policy and procedural manuals from 2010 to the present, documents related to procedures used for the handling of complaints by consumers regarding vehicles, documents reflecting policies, procedures or instructions to employees since 2010 regarding how defendant evaluates customer requests to repurchase or replace vehicles, training materials on the subject, instructions to authorized repair facilities, defendant’s lemon law escalation process, defendant’s call center escalation process, prescriptive models, documents from consultants concerning the consumer warranty, and guidelines provided by defendant to any agency regarding what constitutes substantial nonconformity under the Song Beverly Act.

The responses are either a response that FCA will comply in full with the requests and provide specified documents, and, in connection with most responses, a series of objections such as that the requests are overly broad, not reasonably calculated to lead to the discovery of admissible evidence, and that certain terms are vague and ambiguous.

The third category requests documents concerning defendant’s knowledge of the same or similar defects in other vehicles of the same year, make or model, intended to establish defendant’s awareness of the defect, knowledge it could not repair it regardless of the number of repair attempts afforded, and the failure to repurchase the vehicle notwithstanding such knowledge. (Requests Nos. 32-37). The notice seeks further responses to all of these requests. A review of those requests shows that, other than Request No. 32, the Requests are limited to either 2020 Alfa Romeo Giulia vehicles, or vehicles of the same year, make and model as the subject vehicle, and their owners, and include requests for documents evidencing complaints from such owners concerning the conditions, defects or nonconformities for which the subject vehicle was presented for repair, technical service bulletins and recalls issued for the subject vehicle involving the defects for which the subject vehicle was subject to repair attempts, above average repair rates to 2020 Alfa Romeo Giulia vehicles, and sales brochures and promotional materials and sales materials regarding vehicles of the same year, make, and model as the subject vehicle.

The responses are similar to those set forth above, including responses that all responsive documents will be provided, as limited, and that FCA will search its records to find records “reasonably at issue in this case,” followed by boilerplate objections, or responses that the requests are objectionable.

As an initial matter, defendant in opposition does not seek to justify its response that material will be produced pursuant to a protective order, such as a showing that the material requested includes proprietary information. However, it appears that it would be reasonable for a protective order to be entered which would limit the use of any proprietary or confidential business practices information to his lawsuit.

The parties are ordered to meet and confer with respect to entering stipulated confidentiality order based on the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties will be ordered to provide to the Court within five days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model, as clearly required by the model, and the order will be entered by the court as appropriate.

Defendant primarily argues that plaintiff is seeking documents concerning other vehicles with similar problems, which defendant argues are irrelevant to this breach of warranty claim concerning this particular vehicle. Defendant argues that the issues concerning plaintiff’s single vehicle do not warrant requiring defendant to conduct a search for records for potentially hundreds or thousands of other vehicles.

Plaintiff argues that information concerning other vehicles, and what defendant knew about the defects in those vehicles, is directly relevant here to show whether the defects in plaintiff’s car were repairable, and whether defendant willfully failed to abide by its obligations under the Act or make changes despite knowing from other complaints about other vehicles with similar defects that defendant could not repair the defects.

Plaintiff relies on Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138, in which the court of appeal found the trial court had improperly granted a motion for new trial in an action claiming violation of the Song Beverly Act, finding that the trial court had properly denied a motion in limine to exclude evidence “of any vehicle other than plaintiff’s truck,” and noting that the evidence had included the opinions of an expert that the transmission in the vehicle was defective before the consumer purchased the truck, based on “the fact that Ford had issued a special service message to dealers” about a transmission problem prior to plaintiff’s purchase. Donlen, at 143-144. The court of appeal noted that the evidence also included other notices to dealers and technical service bulletins issued after plaintiff had purchased the vehicle, and as late as about the time the warranty expired. Donlen, at 144.

Plaintiff also relies on Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, in which a consumer had brought an action for violation of the Song-Beverly Act, and the trial court had entered judgment on a jury verdict finding that the act had been unintentionally violated, but the court of appeal found that the trial court had abused its discretion in failing to impose terminating sanctions against defendant for violating discovery orders, in conduct characterized as stonewalling in producing “highly relevant documents.” Doppes, at 994. Those documents included:

“all documents relating to (1) customer complaints concerning the rust inhibitor used on the 2002 Bentley Arnage; (2) all notices to Bentley dealers for the period 2001 to date concerning the rust inhibitor used on the Bentley Arnage; (3) all warranty repairs during the period of January 2002 to date of the Bentley Arnage related to the rust inhibitor used on the vehicle; (4) all customer complaints of a wax oil smell caused by the rust inhibitor on the 2002 Bentley Arnage; and (5) vehicle tests conducted on the 2002 model year Arnage to confirm whether there was a wax oil smell arising from the vehicle's rust inhibitor.”

The documents appear similarly requested here, although they appear to apply in Request No. 32 to all vehicles, so will be limited to include only other vehicles of the same make, model, and year, that is, 2020 Alfa Romeo Giulia vehicles. The time frame is limited to the time period from 2019 to the present, given the facts of this matter involving a model year vehicle of 2020. No geographical limit applies unless already included in the request.

To the extent the discovery appears to seek information regarding defendant’s policies, procedures and practices, these requests also appear appropriately limited in time to those existing from 2019 forward, and the court will also find it reasonable to limit such discovery to the state of California in connection with Requests Nos. 17, and 19-31 only.

As to Request No. 32, which requests “All DOCUMENTS evidencing or describing statistics for the number of repurchases and replacements Defendant has made in California in response to consumers’ personal requests (i.e. a consumer request without an attorney) from 2010 to present,” this Request will also be limited to vehicles of the same year, make, and model, and from 2019 to the present, and, as voluntarily limited in the request, to the state of California.

The opposition separate statement argues that the requests are overly broad to the point of burdensome and are not proportional to the needs of the case. Defendant has failed to submit any evidence or declaration in support of this argument, when it is defendant’s burden to justify such an objection. See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418; (“objection based upon burden must be sustained by evidence showing the quantum of work required”); Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (demand held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each).

Moreover, as argued by plaintiff, to the extent the requests are for electronically stored information, defendant has the initial burden to justify this objection under CCP § 2031.310 (d), which provides, in connection with motions to compel further responses to document demands:

“(d) In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.”

The discovery as limited, with code-compliant responses, and without objections, will provide the appropriate level of information, unless the court is persuaded at the hearing that the burden is greater than would appear given the electronic and searchable nature of most of the information sought, and limited to vehicles of the same year, make, and model.

Defendant FCA US LLC is ordered to serve further verified responses to the subject discovery, Plaintiff Domingo Covarrubias’s First Set of Requests for Production to Defendant FCA US LLC, Requests Nos. 5, 6, 10, 11, 13, 14, 17 and 19 through 37, which respond fully to each Request for Production, as below limited:

Responses to Requests Nos. 32 through 37 are to be limited to information pertaining to vehicles of the same year, make, and model as the subject vehicle, that is a 2020 Alfa Romeo Giulia vehicles. Request No. 32 is to be further limited to the years 2019 through the present.

Each response must fully comply with the Discovery Act, including CCP §§ 2031.210, 2031.220 and 2031.230, so that the written response to each request must include either 1) an objection, as limited below; 2) a statement that defendant will comply with the particular demand, including a statement that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of defendant will be included in the production, or 3) a statement of inability to comply, which statement shall specify whether any 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, and which sets 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.

The Court does not find acceptable responses in which defendant “refers” plaintiff to other third parties which appear to be authorized repair facilities of defendant, which appear to be documents to which defendant would presumably have access. (See, e.g., Response to Requests Nos. 5, 6). If defendant in good faith cannot access those responsive documents, any response must fully comply with the discovery code requirements for a statement of inability to respond, as set forth above.

The Court notes that the moving papers indicate that the parties have not yet entered into a protective order. The parties are ordered to meet and confer with respect to entering such an order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties are ordered to provide to the Court within five days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model, as clearly required by the model, and the order will be entered by the Court as appropriate.

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.