Calendar: 4

Date: 9/6/2024

Case No: 23 GDCV01384 Trial Date: February 10, 2025

Case Name: Gharib v. Maserati North American, Inc., et al.

MOTIONS TO COMPEL RESPONSES TO DISCOVERY

(3 Motions)

Moving Party: Plaintiff Fadi Gharib

Responding Party: Defendant Maserati North America, Inc.

RELIEF REQUESTED:

Responses to Form and Special Interrogatories, Set One

Responses to Request for Production of Documents, Set One

Order deeming the truth of matters admitted in Requests for Admissions

MONETARY SANCTION:

 None sought in moving papers

FACTUAL BACKGROUND:

Plaintiff Fadi Gharib alleges that in June of 2022 plaintiff leased a 2022 Maserati Levante, in connection with which defendant Maserati North America, Inc. (Maserati) issued a written warranty, in which defendant Maserati 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 vehicle was delivered to plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities, including steering, suspension, electrical, engine and transmission system defects.

  Plaintiff alleges that the defects manifested themselves in the vehicle within the applicable warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff alleges that plaintiff delivered the vehicle to an authorized repair facility to repair the nonconformities, but defendant has been unable to conform the vehicle to warranty after a reasonable number of repair attempts.

Plaintiff alleges that notwithstanding plaintiff’s entitlement, defendant FCA US LLC has failed to either promptly replace the vehicle or to promptly make restitution.

The complaint also alleges that plaintiff delivered the vehicle to defendant Russell Westbrook Alfa Romeo Maserati Fiat for repairs on numerous occasions, and that defendant Russell Westbrook Alfa Romeo Maserati Fiat breached its duty to plaintiff to use ordinary care and skill by failing to properly store, prepare, and repair the vehicle in accordance with industry standards.

The complaint alleges three causes of action for Violation of the Song Beverly Act, for breach of express warranty, breach of implied warranty, and violation of section 1793.2, as well as a fourth cause of action for negligent repair.

ANALYSIS:

Defendant Maserati in opposition to the motions indicates that prior to the hearing of the motions, defendant served plaintiff with verified responses to the subject discovery. [Sharp Decl., para. 9].

Defendant has not submitted with the opposition copies of the responses to permit the court to confirm that the responses are verified, or when they were served. While this is not ideal, the court, based on counsel’s sworn declaration that the “verified responses” were served on August 20, 2024, finds the motions moot. [Sharp Decl., para. 9].

If at the hearing it appears that verified responses were not served as represented prior to the hearing, the motions would not be considered moot.

However, as pointed out in the opposition papers, this matter is subject to the Addendum to Case Management Conference Order (Song-Beverly Litigation) (Order) applicable to Song-Beverly Litigation, now posted and available on the Los Angeles Superior Court website in connection with this Department, Glendale Courthouse, Department D.

Pursuant to that Order, “any formal discovery propounded and currently pending or outstanding by a party in this matter prior to the date of this CMC Order is stayed pending further order of the Court.” [Order section (1)(a)].

The order sets forth the following provisions concerning discovery in Song-Beverly matters which appear to address the discovery issues raised by the current motions.

With respect to Interrogatories, the Order provides:

“Interrogatories: Within the time limits allowed by law, both plaintiff and defendant may propound one set of Judicial Council Form Interrogatories and one set of maximum of 35 special interrogatories. Any additional special interrogatories may only be propounded by stipulation and/or court order (via motion upon showing of good cause).”

[Order section (3)].

The special interrogatories submitted with the moving papers far exceed the 35 special interrogatory limit, as there are 68 special interrogatories.

With respect to Requests for Production of Documents, the Order provides:

“Production of Documents: Within 60 days of service of this Order both plaintiff and defendant shall provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side(s):

a. Purchase or lease contracts concerning the subject vehicle, including any associated documents reflecting OEM or aftermarket equipment installed at the dealership, ELWs or service contracts, and any other writings signed by the plaintiff at the point of sale.

b. Work orders, repair orders, and invoices (including accounting and warranty versions) for any maintenance, service and repair activity concerning the subject vehicles.

c. Rental car or loaner agreements regarding alternative transportation provided during service or repair visits concerning the subject vehicle.

d. Records of communications with dealer personnel, and/or factory representatives and defendant’s call center or customer assistance personnel concerning the subject vehicle.

e. Warrant claims submitted to and/or approved by defendant concerning the subject vehicle.

f. Warranty Policy and Procedure Manual or similar policies or claim-handling procedures published by Defendant from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

g. Defendant’s written statements of policy and/or procedures used to evaluate customer requests for repurchase or replacement pursuant to “Lemon Law” claims, including ones brought under the Song-Beverly Consumer Warranty Act, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

h. A list of or compilation of customer complaints in defendant’s electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff, in vehicles purchased in California for the same year, make and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items. The list provided by defendant may be in the chart or spreadsheet format, and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers’ reported complaint, but shall not include the other customers’ names, addresses, phone numbers, e-mail addresses, or other personal identifying information.

i. Technical Service Bulletins and Recall Notices for vehicle purchased or leased in California for the same year, make and model of the subject vehicle.

j. Copies of any repair instruction, bulletin, or other diagnostic/repair procedure identified in any of the repair order/invoice records for the subject vehicle.

k. Receipts or other written evidence supporting any incidental or consequential damages claimed by plaintiff.

If a party believes any of this information should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same. The default will be the standard Protective Order provided by the LASC in its website.

The information may be provided to the opposing party in electronic form as a PDF at the option of the producing party.

Plaintiff and defendant shall serve verification with the documents they produce.

Any additional requests for documents may only be propounded by stipulation and/or court order (via motion upon showing of good cause).

[Order section (2)(a)-(k)].

The parties are also directed to the Notice to All Counsel Re: Lemon Law Cases for Department D, entitled Customary Rulings Re Document Requests (Song Beverly Litigation) (Notice). That Notice provides:

“When the court is faced with a discovery dispute in a Song-Beverly case, the court will usually order that the plaintiff and defendant provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side:

1. Defendant shall produce the “Warranty Policy and Procedure Manual” published by Defendant and provided to its authorized repair facilities, within the State of California, for the period of [date of purchase] to present.

2. Defendant shall produce any internal analysis or investigation regarding defects alleged in plaintiff's complaint in vehicles for the same year, make and model of the subject vehicle. This includes Recall Notices and Technical Service Bulletins. Defendant is not required to do a search of emails.

3. Defendant shall produce any customer complaints relating to defects alleged in plaintiff’s complaint in vehicles purchased in California for the same year, make and model of the subject vehicle.

4. Defendant shall produce all documents evidencing policies and procedures used to evaluate customer requests for repurchase pursuant to the Song-Beverly Consumer Warranty Act, for the period of [date of purchase] to present.

5. Repair orders and invoices concerning the subject vehicle.

6. Communications with dealer, factory representative and/or call center concerning the subject vehicle.

7. Warranty claims submitted to and/or approved by Defendant concerning the subject vehicle.

8. Purchase and/or lease contract concerning the subject vehicle.

9. Repair orders and invoices concerning the subject vehicle.

10. Any documents supporting plaintiff’s claim for incidental and/or consequential damages.”

The motions concerning responses to interrogatories and responses to requests for production of documents accordingly are denied without prejudice until the parties have had the opportunity to comply with the Order. The parties are ordered to engage in good faith meet and confer concerning the outstanding discovery in light of the Order, and, if necessary, reschedule the motions and file new papers and supporting documentation, including separate statements reflecting the then current status of the discovery disputes. Separate statements should also set forth verbatim the relevant language of the Order and Notice where applicable.

The court notes with respect to these particular disputes that the court expects Code compliant responses, and unnecessary objections will be overruled.

Specifically, with respect to a statement of compliance with document production requests, CCP section 2031.220 requires:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state 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 that party and to which no objection is being make will be included in the production.”

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably 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.”

The Order does not provide for the propounding of Requests for Admissions, but permits discovery by means of Production of Documents, Interrogatories, Depositions and Vehicle Inspection, as limited above. The moving papers provide no stipulation or court order permitting the propounding of this form of discovery in this matter, as required by the Order, at section (1)(c) (providing that the parties may “stipulate, in writing, to modify” the orders, and that a party may “seek to modify and/or delete any of these orders, via noticed motion, upon good cause.”)

 The motion to deem requests for admission admitted is denied without prejudice to plaintiff complying with the Order.

Sanctions

The moving papers do not seek monetary sanctions, but defendant in the oppositions requests monetary sanctions for the expense of having to oppose these motions. Defendant argues that plaintiff’s counsel has misused the discovery process by serving discovery in contravention of the court’s Case Management Order, and, when this fact was brought to counsel’s attention, ignoring defendant’s correspondence. Defendant argues that plaintiff filed these motions without first reaching out to establish a responsive date, and refused to withdraw the baseless motions, even after it was pointed out that the discovery had been improperly served and after code-compliant verified responses were nevertheless served.

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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.” A similar provision applies to document demands. See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes “(b) Using a discovery method in a manner that does not comply with its specified procedures,” “(c) Employing a discovery method in a manner or to the extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense,” and “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery.” Where there has been such conduct, under CCP § 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).

While the court does not appreciate that plaintiff has propounded discovery outside the boundaries of the Order without obtaining a stipulation or leave of court to do so, and has refused to withdraw these motions before the expense of opposing them was incurred unnecessarily, the court also notes that there has been some confusion concerning the obligation of a party to timely respond to that portion of a party’s discovery which is encompassed by the Order.

Under the circumstances, the court does not award monetary sanctions to defendant.

However, the court will expect in the future that the parties fully comply with the Order and Notice and will expect that the expense shifting mechanism of discovery sanctions can be properly invoked if appropriate.

RULING:

Plaintiff’s Motion to Compel Responses, Without Objections, to Plaintiff’s Form and Special Interrogatories is MOOT in light of the service on August 20, 2024 of verified responses to the subject discovery, prior to the hearing on the motion.

Monetary sanctions requested in the opposition are DENIED.

Plaintiff’s Motion to Compel Responses, Without Objections, to Plaintiff’s Requests for Production of Documents (Set One) is MOOT in light of the service on August 20, 2024, of verified responses to the subject discovery, prior to the hearing on the motion.

Monetary sanctions requested in the opposition are DENIED.

Plaintiff’s Motion for an Order Deeming the Truth of Maters Admitted in Plaintiff’s Requests for Admissions is DENIED WITHOUT PREJUDICE on the ground plaintiff propounded the discovery without first obtaining a stipulation or a court order permitting such discovery.

Monetary sanctions requested in the opposition are DENIED.

The parties are reminded that discovery in this matter is governed by this Court’s Addendum to Case Management Conference Order (Song-Beverly Litigation) (Order), signed and entered by the Court on January 24, 2023, as revised, signed and entered on January 11, 2024, available on the Los Angeles Superior Court website in connection with this Department, Glendale Courthouse, Department D. The parties are also directed to the Notice to All Counsel Re: Lemon Law Cases for Department D, entitled Customary Rulings Re Document Requests (Song Beverly Litigation) (Notice), also available on the referenced website. That Notice indicates what the Court will usually order when faced with a discovery dispute.

The parties are advised that in connection with any further discovery disputes, the parties are expected to fully meet and confer in good faith, taking into consideration the Order and Notice, and that any further motions before this court, if necessary, must be accompanied by appropriate separate statements, which include any subject request, the current response, and any language from the Order and Notice applicable to the particular request.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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