Judge: Ronald F. Frank, Case: 23TRCV01671, Date: 2023-08-22 Tentative Ruling
Case Number: 23TRCV01671 Hearing Date: January 10, 2024 Dept: 8
Tentative
Ruling
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HEARING DATE: January 10, 2024¿
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CASE NUMBER: 23TRCV01671
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CASE NAME: Lambe
B. Papoulias v. Volkswagen Group of America, Inc., et al.
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MOVING PARTY: Plaintiff, Lambe B. Papoulias
RESPONDING PARTY: Defendant, Volkswagen Group of America, Inc. and
County-Wide Rambler, Inc. dba Volkswagen of Garden Grove
MOTION:¿ (1) Motion to Compel Further
Responses, Without Objections, to Requests for Production, Set One
Tentative Rulings: (1) DENIED in Part and GRANTED in
part.
I. BACKGROUND¿
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A. Factual¿
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On May 26, 2023, Plaintiff, Lambe B.
Papoulias (“Plaintiff”) filed a Complaint against Defendants, Volkswagen Group
of America, Inc. and County-Wide Rambler, Inc. dba Volkswagen of Garden Grove,
and DOES 1 through 10. The Complaint alleges causes of action for: (1)
Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of
Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly
Act § 1793.2; and (4) Negligent Repair.
On July 13, 2023, Plaintiff
propounded Request for Production of Documents, Set One on Defendant seeking
documents relating to: (1) Plaintiff’s own vehicle (Request Nos. 1-15); (2)
Defendant’s policies and procedures for handling Song-Beverly Consumer Warranty
Act Cases (Request Nos. 16-23); (3) Defendant’s warranty policy and the
procedure used for handling warranty issues (Request Nos. 24-30); and (4)
information regarding similar customer complaints in vehicles of the same year,
make, and model as the Subject Vehicle (Request Nos. 31-32). Plaintiff notes
that on August 15, 2023, Defendant served a Response to Plaintiff’s written
discovery requested asserting boilerplate objections that are not
Code-Compliant. However, Plaintiff argues Defendant failed to produce many of
the responsive documents requested.
Plaintiff suggests that Defendant
has not produced the entirety of the emails, memorandum, data, or
investigations that could help Plaintiff establish Defendant’s knowledge of the
same or similar defects in other vehicles of the same year, make, and model. As
such, Plaintiff now files this Motion to Compel Further Responses to
Plaintiff’s Requests for Production of Documents, Set One.
B. Procedural
On
September 15, 2023, Plaintiff brought its Motions to Compel Further Responses
to Plaintiff’s Request for Production of Documents, Set One, with a 174-page
Separate Statement. On October 19, 2023, Defendants filed an opposition,
together with a 233-page Separate Statement. To date, no reply brief has been filed.
On
November 1, 2023, this Court continued this motion’s hearing, ordering the
parties to submit a joint report regarding the remaining discovery requirements
at issue after the parties met and conferred. The Court was not satisfied that
meaningful meet and confer process had occurred, and the Court expressed its
concern at the massive size of each party’s separate statement where 4-5 page arguments
were made as to each of the discovery requests at issue, largely regurgitating arguments
made in the parties’ briefs. On December
22, 2023, Volkswagen filed a report noting the parties’ met and conferred on
the day prior. Defendant also notes that Plaintiff’s counsel stated he would
provide a Declaration to Volkswagen on December 22, 2023, addressing their
position as to the issues in the motion. On December 22, 2023, Volkswagen notes
that its counsel set a follow up email to Plaintiff’s counsel requesting a
status update on the joint report that the parties were required to file. Volkswagen
asserted that Plaintiff’s counsel has not responded to the correspondence as of
the time Volkswagen filed its report. Nonetheless, Volkswagen notes that it
agrees the December 21, 2023 telephonic meet and confer was meaningful. Notwithstanding defendant’s earlier lamenting
report, on December 28, 2023, the parties filed a Joint report regarding the meet
and confer process, which the Court appreciates and which performs the intended
role of a separate statement to succinctly focus the Court on the issues to be
decided.
¿II. ANALYSIS ¿
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A.
Legal Standard
“Unless otherwise limited by order
of the court in accordance with this title, any party may obtain discovery
regarding any matter, not privileged, that is relevant to the subject matter
involved in the pending action or to the determination of any motion made in
that action, if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.” (Code
of Civ. Proc. § 2017.010.) For discovery purposes, information is regarded as
relevant “if it might reasonably assist a party in evaluating the case, preparing
for trial, or facilitating settlement thereof.” (City of Los Angeles v.
Superior Court (2017) 9 Cal.App.5th 272, 288.)
A motion to compel further
responses to a demand for inspection or production of documents (“RFP”) may be
brought based on: (1) incomplete statements of compliance; (2) inadequate,
evasive, or incomplete claims of inability to comply; or (3) unmerited or
overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A
motion to compel further production must set forth specific facts showing good
cause justifying the discovery sought by the inspection demand. (See Code Civ.
Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court
(2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing
that there “a disputed fact that is of consequence in the action and the
discovery sought will tend in reason to prove or disprove that fact or lead to
other evidence that will tend to prove or disprove the fact.” If the
moving party has shown good cause for the requests for production, the burden
is on the objecting party to justify the objections. (Kirkland v. Sup.Ct
(2002) 95 Cal. App.4th 92, 98.)
B.
Discussion
Following the December 21, 2023 meet and confer, Defendant
Volkswagen contends that the following Requests from Plaintiff’s Request for
Production of Documents remain for the Court’s decision: RFP Nos. 11, 16, 17,
19, 22, 31, and 32. The Court discusses each below.
RFP 11 – DENIED. Unless otherwise argued during oral
argument, it appears that Volkswagen has already provided such responses
regarding summaries of warranty repairs performed on the 2022 VW Atlas at
issue. Further, Plaintiff’s position
does not explain why it believes Defendant has not produced all responsive
documents despite Volkswagen attesting to the fact that they have. If Volkswagen
has not produced the actual warranty claim submissions transmitted by its servicing
dealers to VW, that issue should be discussed at oral argument. Such submissions are almost always requested
and almost always required by the Court in any Lemon Law case.
RFP
16 – GRANTED, for a more limited time period of 2022 to the present, and
subject to a protective order. The
subject vehicle is a model year 2022 Atlas, so standards that existed in 2017
or 2020 are of remote relevancy, even assuming the standards for evaluating buy-back
demands have changed in the intervening half a decade. The Court views this
as a general policy and procedure RFP, not one limited to documents used to
evaluate the policies when a customer contacts the Call Center or the manufacturer
to ask for issuance of a refund. Documents
evidencing, describing, referring, or relating to Volkswagen’s rules, policies,
or procedures since 2022 concerning the issuance of refunds to buyers or
providing replacements vehicles to buyers in the State of California under
Song-Beverly is reasonably calculated to lead to the discovery of evidence as
to whether this defendant complied with the law’s affirmative duty to offer a
buyback when the repair history reaches a certain threshold. Volkswagen’s position that the plaintiff here
did not reach out to VW for a buyback is not the correct discovery standard
here; “the only affirmative step the Act imposes on consumers is to
'permit[] the manufacturer a reasonable opportunity to repair the vehicle.'” (Oregel v. American Isuzu Motors, Inc.
(2001) 90 Cal.App.4th 1094, 1103; see
Krotin v. Porsche Cars North America, Inc.
(1995) 38 Cal.App.4th 294, 302-03.)
The Second District in Krotin
stated the standard that still applies today: “the manufacturer has an
affirmative duty to replace a vehicle or make restitution to the buyer if the
manufacturer is unable to repair the new vehicle after a reasonable number of
repair attempts, and the buyer need not reject or revoke acceptance of the
vehicle at any time. The buyer need only provide the manufacturer with a
reasonable opportunity to fix the vehicle.”
(Krotin, supra, 38
Cal.App.4th at p. 303.)
Volkswagen
offered to produce various documents under a stipulated protective order, which
may well resolve the discovery dispute. The
Court will not order production of FLIS documents, however, which are either publicly
available or which may be secured through a third-party subpoena if necessary, since
it appears there was no customer care representative who acted as to Plaintiff’s
Atlas until after suit was filed. It is
not clear from the Joint Statement why Plaintiff believes the FLIS documents
are reasonably necessary here.
RFP 17 - GRANTED, as to the documents evidencing,
describing, referring, or relating to Volkswagen’s Call Center Policies and
Procedures for escalating a customer’s complaints relating to defects present
in his or her vehicle from 2022 to the present.
VW appears to be willing to produce such documents under a protective
order. These are general policy and
procedure requests and if there is a set of escalation standards for California
customer complaints or nationwide policies applicable to California vehicles,
they shall be produced under a protective order. The Court views these documents as being reasonably
calculated to establish that Plaintiff’s vehicle should have been escalated
even though it was not.
RFP 19 - GRANTED, as limited and for the same reasons
and restrictions as noted as to RFP 16 above.
RFP 22 - DENIED. Because Volkswagen did not consider a
repurchase before suit was filed, how the company calculates a refund does not appear
reasonably calculated to lead to admissible evidence in this case.
RFP 31 – DENIED, except as to the documents Volkswagen has
agreed to produce subject to a stipulated protective order. The Court finds
that the term “substantially similar” is unreasonably over broad, and unduly
burdensome, resulting in a multiply compound definition and vagueness when the “other
manifestation of a repair problem” language is included and results in a
request for documents that would not be reasonably calculated to lead to
evidence that might be admissible in trial. Even if Plaintiff limited the
definition to “dashboard indicator light,” the definition would still be unduly
burdensome and unreasonably overbroad given the dozens of different repair
issues that may cause any dashboard indicator light to need diagnosing. There are several dozen malfunctions or operating
conditions that can cause a check engine light to illuminate, for example, and
they are different than conditions that might cause a battery level light or a
brake pad wear indicator light to illuminate.
The Court’s ruling is without prejudice
to a subsequent RFP limited to specifically defined repair complaints or symptoms
that were the subject of multiple repair visits. The Court does not view discovery
of other customer complaints as to one-time or non-recurring repair complaints
to be “reasonably” calculated to lead to admissible evidence and appears to the
Court to be unreasonably burdensome given the “needs of the case, the amount in
controversy, and the importance of the issues at stake in the litigation.” (Code of Civ. Proc. § 2019(a)(2).)
RFP 32 – GRANTED as to what Volkswagen indicates its agreement
to produce in its portion of the Joint Statement and otherwise DENIED.
III. CONCLUSION¿
Based on the foregoing, Plaintiff’s motion
is DENIED in part and GRANTED in part as explained above.
Defendant is ordered to give notice.