Judge Richard Y. Lee, Case 30-2021-01238205 2022-08-11 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01238205, Date: 2022-08-11 Tentative Ruling

Plaintiff, Yesenia Tapia (“Plaintiff”) moves for an order striking Defendant FCA US LLC’s objections and compelling further responses to Plaintiff’s Requests for Production, Set One (“RFP”), Nos. 1, 8, 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 54, 83-105, including production of all responsive documents.

Plaintiff contends that the requests at issue seek the following categories of documents from Defendant FCA US, LLC (“Defendant” or “FCA US”): (1) Documents concerning the Subject Vehicle, i.e., 2016 Dodge Ram 1500, Vehicle Identification Number 1C6RR7KM2GS215407 purchased by Plaintiff (the “Subject Vehicle”) (RFP, Nos. 1 and 54); (2) Documents concerning the Defects in other 2016 Dodge Ram 1500 vehicles with the same Engine Defects, Powernet Defects and Transmission Defects as the Subject Vehicle including internal investigations, emails, and other ESI (RFP, Nos. 18, 19, 21, 22, 23, 24, 25, 28, 29, 33, 34, 35, 38, 39, 43, 44, 45, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105); (3) Technical Service Bulletins (“TSBs”), campaigns, recalls, and communications with the National Highway Traffic Safety Agency (“NHTSA”) related to the Engine Defects, Powernet Defects and Transmission Defects (RFP, Nos. 11, 12, 13, 83, 84, 85, 86, 87, 88, 89, 90); and (4) Defendant’s Lemon Law policies and procedures (RFP, Nos. 8 and 91); and that Defendant’s response to these requests consists of boilerplate objections that are without merit. Plaintiff contends that the requests are directly relevant to issues related to Plaintiff’s claims under the Song-Beverly Consumer Warranty Act (“Song Beverly Act”), and would establish FCA US’s knowledge of such defects but refusal to repurchase the Subject Vehicle, and support that FCA US willfully violated the Song Beverly Act under Civil Code section 1794. Plaintiff additionally contends that cases have compelled production of the same information and documents requested here; that Defendant maintains a system of databases which stores information responsive to Plaintiff’s requests such that the information requested could be easily recovered; that FCA US has not established any burden that may be considered out of proportion to the discovery sought; and that Defendant’s statement of compliance fails to comply with Code of Civil Procedure sections 2031.220. Plaintiff further argues that Plaintiff made good faith attempts to meet and confer with Defendant beginning on February 17, 2022, and as recently as June 20, 2022, but that Defendant has not responded to Plaintiff’s requests for verified, code-compliant responses and all non-privileged responsive items and/or a privilege log.

Defendant asserts that the motion should be denied as Plaintiff failed to timely serve this motion pursuant to CCP section 2031.310(c), and that Defendant responded to Plaintiff’s discovery requests, timely responded to Plaintiff’s meet and confer communications, agreed to provide further responses and documents, and has already fully replied to and supplemented all of the responses at issue in this motion including stating either its full compliance or its inability to comply with all of the requests at issue here. Defendant provides that it supplemented and amended its responses twice, on May 16, 2022, and June 21, 2022, as well as provided several supplemental document productions, most recently on July 27, 2022. Specifically, Defendants argues that it has stated full compliance with two categories of documents including requests for documents relating to the Subject Vehicle and lemon law policy and procedures, and that Defendant has produced all responsive documents to these categories of documents within its possession, custody, and control related those requests. As to the third category of documents seeking internal analysis and engineering documents, and documents involving other customer concerns for the alleged issues in other 2016 Ram 1500 vehicles related to Plaintiff’s “Powernet Defects,” “Transmission Defects” and “Engine Defects” definitions, Defendant contends that it agreed to conduct the requested document searches and in response produced documents related to other customer concerns, warranty claims data, and failure rate data (C/1000 and MOP/MIS) related to Plaintiff’s defect definition concerning other 2016 Ram 1500 vehicles, as well as agreed to conduct searches for any internal investigations that may have been conducted that relate to Plaintiff’s “Powernet Defects,” “Transmission Defects” and “Engine Defects” definitions, and that Defendant produced over 1,800 emails related to the seven internal investigations applicable to Plaintiff’s allegations of a “Powernet Defect,” “Transmission Defect,” and “Engine Defect,” as well as any available communications between FCA US and NHTSA regarding those investigations. Defendant additionally contends that the only relevant documents are that which pertain to the Subject Vehicle, but that even if the requests sought relevant information, Plaintiff seeks class action-type discovery which is unlimited in scope by time or geography, and in some instances, in violation of third-party privacy rights, and that the requests are facially overbroad, ambiguous, do not state with any particularity the documents that are being sought under Code of Civil Procedure section 2031.030(c)(1), and are not code compliant. Defendant argues that Plaintiff cites to cases that are distinguishable and that the requests at issue are designed solely to burden FCA US with document searches which have no other intent but to drive up litigation costs. Finally, Defendant argues that Plaintiff fails to set forth specific facts showing good cause for the discovery.

Insufficient Notice of Motion

Defendant initially contends that the motion should be denied because it is untimely under Code of Civil Procedure section 2031.310(c), as it was electronically served on July 20, 2022, when the deadline for such service was July 18, 2022.

The Court notes that it appears that Defendant is actually arguing that insufficient notice was provided. All moving and supporting papers must be served and filed at least 16 court days before the hearing, and extended two court days for electronic service. (Code Civ. Proc. §§ 1005(b); 1010.6(a)(4)(B); 1013(g).)

“ ‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’ [Citations.]” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Here, 16 days before the hearing date of August 11, 2022, is July 20, 2022, plus two court days for electronic service is July 18, 2022. However, as noted by Defendant, the instant motion was served on July 20, 2022, by electronic mail such that Plaintiff gave insufficient notice of the motion. Nevertheless, as Defendant timely filed and served an opposition to the motion on its merits, Defendant has waived any insufficient notice.

Timeliness of Motion

With respect to the timing requirement, Code of Civil Procedure section 2031.310, subdivision (c), specifically provides: “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” The 45-day time limit is extended for service by mail, overnight delivery, or fax, or electronic mail in accordance with Code of Civil Procedure sections 1010.6(a)(4), 1013. For requests for production, the 45-day deadline runs from the date the verified response is served, not from the date originally set for production or inspection. (Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

The 45-day deadline to bring a motion to compel further responses is mandatory and jurisdictional. (Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685 [the court acts in excess of its jurisdiction by considering an untimely motion to compel further response to interrogatories]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1406-1410 [applying rule to motions to compel production of documents].) The deadline is jurisdictional insofar as it renders the court without authority to rule on motions to compel other than to deny them. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Here, Plaintiff’s counsel provides that Defendant served its responses to Plaintiff’s RFP on or about March 22, 2022, by electronic service (Ex. 8); served Supplemental Responses to Plaintiff’s RFP on May 16, 2022, by electronic service (Ex. 9); and served Amended Supplemental Responses to Plaintiff’s RFP on June 21, 2022, by electronic service (Ex. 10). (Declaration of Rebecca E. Neubauer (“Neubauer Decl.”), ¶¶ 27-29; Exs. 8-10.)

As relevant to the motion, Defendant’s Supplemental Responses to Plaintiff’s RFP served by electronic service on May 16, 2022 included supplemental responses to RFP, Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-88, 92-94. (Ex. 9 to Neubauer Decl.)

Defendant’s Amended Supplemental Responses to Plaintiff’s RFP served by electronic service on June 21, 2022 included amended supplemental responses to RFP, Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-90. (Ex. 10 to Neubauer Decl.)

Thus, Plaintiff had 45 days, plus two court days to file the instant motion to compel, from the original response, Supplemental Responses, or Amended Supplemental Responses, as applicable. (Code Civ. Proc. §§ 2030.300(c); 2033.290(c); 1010.6(a)(4)(B).)

45 days from March 22, 2022, the date Defendant electronically served its original responses, is May 10, 2022, including two court days for electronic service.

45 days from May 16, 2022, the date Defendant electronically served its Supplemental Responses, is July 5, 2022, including two court days for electronic service.

45 days from June 21, 2022, the date Defendant electronically served it Amended Supplemental Responses, is August 9, 2022.

The instant motion was filed on July 20, 2022. Per Plaintiff’s Notice of Motion, the RFPs at issue are Nos. 1, 8, 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 54, 83-105.

However, Defendant did not provide Supplemental Responses or Amended Supplemental Responses to Nos. 1, 8, 54, 91, and 95-105 such that the deadline for the motion was May 10, 2022, and plaintiff does not argue or show that the motion is timely as to these requests. Thus, it appears that the motion is untimely as to these requests, Plaintiff has waived any right to compel a further response, and the Court must deny the motion as to RFP, Nos. 1, 8, 54, 91, and 95-105.

In addition, as no Amended Supplemental Response was served as to RFP, Nos. 92-94, the deadline for a motion to compel as to these requests was July 5, 2022, such that the instant motion appears to be untimely as to these requests, and Plaintiff has likewise waived any right to compel a further response.

Based on the foregoing, the Court DENIES the motion as to RFP, Nos. 1, 8, 54, and 91-105. In turn, the remaining RFPs at issue are Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-90.

Separate Statement

A separate statement is required for a motion to compel further responses to a demand for inspection of documents. (CRC, rule 3.1345(a)(3).) A separate statement must “provide[] all the information necessary to understand each discovery request and all the responses to it that are at issue,” and “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (CRC, rule 3.1345(c).) Among other information, it must include the “text of each response, answer, or objection, and any further responses or answers.” (CRC, rule 3.1345(c)(2).)

A trial court may deny a motion to compel on the basis that it is procedurally defective and fails to comply with the California Rules of Court, Rule 3.1345. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892 (trial court did not abuse its discretion in denying Plaintiff’s motion to compel discovery, as Plaintiff failed to file code-compliant separate statement).)

Here, though not raised by Defendant, the Court notes that Plaintiff’s separate statement does not appear to include the Amended Supplemental Responses RFP, Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-90, which were served on June 21, 2022, leaving the Court having to to determine whether an Amended Supplemental Response was provided, and what that Amended Supplemental Response stated. Although the Court may deny the motion on this basis, the Court will continue the motion for the additional reason set forth below.

Meet and Confer

A motion to compel further responses for requests for production must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc. § 2031.310(b)(2).) Code of Civil Procedure section 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

“ ‘An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should be considered. Although some effort is required in all instances [citation], the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court’s discretion and judgment, with due regard for all relevant circumstances.’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294.) There must be a “serious effort at negotiation and informal resolution” and “the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438-1439.)

Here, the correspondence submitted indicates on-going meet and confer efforts concerning the discovery requests at issue. In particular, as noted above, Defendant’s Amended Supplemental Responses to Plaintiff’s RFP was served by electronic service on June 21, 2022, and included amended supplemental responses to RFP, Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-90. (Ex. 10 to Neubauer Decl.)

Plaintiff provides that Plaintiff sent a meet and confer email on July 5, 2022. (Neubauer Decl., ¶ 46; Ex. 21.) This e-mail requested that Defendant withdraw objections and “provide verified Code-compliant further responses, all responsive documents, and any applicable privilege logs via e-mail by close of business July 12, 2022.” (Ex. 21 to Neubauer Decl.)

Defendant responded in a letter dated July 13, 2022, asserting that the supplemental responses indicate the databases that were searched, that it has “produced all responsive documents within its possession, custody, or control,” and that it did not state an inability to comply, as well as providing that it would amend RFP, Nos. 31-32 and 41-42. (Neubauer Decl., ¶ 47; Ex. 22.)

Plaintiff then replied by email on July 20, 2022, asserting that Defendant’s counsel is “misrepresenting” the responses, that Defendant has not produced the NHTSA complaint or communications, and that Plaintiff’s ESI and email request was not limited to internal investigations. (Neubauer Decl., ¶ 48; Ex. 23.) The instant motion was filed that same day.

In opposition, Defendant provides that it provided “several supplemental document productions, most recently on July 27, 2022” which is after the instant motion was filed. (Declaration of Gurpreet Sandhu, ¶ 7.)

The Court also notes that Defendant’s Supplemental Responses served on May 16, 2022, and Amended Supplemental Responses served on June 21, 2022, provide that certain documents will be produced subject to a protective order. (See Exs. 9 and 10 to Neubauer Decl.)

Plaintiff’s counsel provides that the parties entered into a Stipulation and Protective Order-Confidential Designation Only on August 19, 2021, although this date appears incorrect as the copy attached appears to be dated by Plaintiff’s counsel on April 5, 2022, and by Defendant’s prior counsel on June 22, 2022, and was not approved by the Court. (Neubauer Decl., ¶ 39; Ex. 14.) The Court notes that a document entitled, “Stipulation and Protective Order – Confidential Designation Only” was approved and signed by the Court on July 6, 2022, which was after Defendant’s Amended Supplemental Responses were served on June 21, 2022. (See ROA 30.)

Plaintiff’s counsel also provides that on April 6, 2022, Plaintiff offered to stipulate to the standard LASC model protective order to obviate any alleged confidentiality concerns,” and attached a proposed Stipulation and Order regarding the Discovery of ESI.” (Neubauer Decl., ¶ 38; Ex. 13.) Plaintiff’s counsel additionally provides that an ESI Stipulation Order was proposed on or about June 20, 2022, although the Court notes that it appears to have been served on April 6, 2022 based on the proof of service attached to the latter stipulation. (Neubauer Decl., ¶ 40; Ex. 15.)

Based on the foregoing, it does not appear to the Court that the parties’ meet and confer efforts as to the responses and document production were complete as to all requests at issue or as to the entry of any protective order, including an ESI Stipulation Order, and it does not appear to the Court that meet and confer efforts which appear to have consisted of written communications demonstrate reasonable and good faith attempts to meet and confer, especially given the nature of the dispute and number of requests at issue.

In light of the above and Plaintiff’s deficient separate statement, the Court DENIES the motion without prejudice to refiling a motion to compel further responses as to RFP Nos. 11-13, 18, 19, 21-25, 28, 29, 33-35, 38, 39, 43-45, 83-90 within 30 days of notice of this hearing.

If the Plaintiff does file a motion to compel as to these requests, Plaintiff is reminded to file an amended separate statement which corrects the deficiencies set forth above. In addition, the Court expects counsel for both parties to meet and confer in person, by zoom or other remote technology or over the telephone in good faith to attempt to resolve any remaining issues.

Defendant to give notice.