Judge: Ronald F. Frank, Case: 24TRCV01218, Date: 2024-09-13 Tentative Ruling

Case Number: 24TRCV01218    Hearing Date: September 13, 2024    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                 September 13, 2024

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CASE NUMBER:                   24TRCV01218

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CASE NAME:                        Noemi Cerna v. Mercedes-Benz USA, LLC, et al.

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MOVING PARTY:                 Plaintiff, Noemi Cerna

RESPONDING PARTY:        Defendant, Mercedes-Benz USA, LLC

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TRIAL DATE:                        Not Set.

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MOTION:¿                              (1) Motion to Compel Defendant’s Further Responses to Requests for Production of Documents, Set One

Tentative Rulings:                  (1) GRANT in part and DENY in part as discussed below. Most of the objections raised are overruled, except as to privilege if a privilege log is provided and as to other meritorious objections as discussed below. 

 Overview:  This discovery dispute appears to the Court to be the product of a lack of a protocol or agreement between the law firms representing the parties.  The Court has over 150 Song-Beverly cases on its current docket, and in only about 10% of those cases are there any discovery motions.  Why?  Because in 90% of the cases, counsel have developed a working relationship, recognizing that the volume of Lemon Law litigation and the high number of cases being managed by each of the law firms necessitates cooperation, accommodation, and reasonableness on extensions of time to respond to the often voluminous requests for information.   Further, upwards of 98% of Song-Beverly Act case in Los Angeles County resolve by direct negotiation or by mediation.  The Court has devoted considerable time in this Tentative Ruling to providing guidance on the subject requests and responses, as well as some guidance for future handling, that it hopes counsel on both sides will take to heart. 

I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On April 9, 2024, Plaintiff, Noemi Cerna (“Plaintiff”) filed a complaint against Defendant, Mercedes-Benz USA, LLC (“MBUSA”), and DOES 1 through 10. The complaint alleges causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; and (2) Violation of Song Beverly Act – Breach of Implied Warranty.

The moving papers assert that on May 24 2024, Plaintiff served Requests for Production of Documents, Set One on MBUSA requesting documents relating to: (1) Plaintiff’s own vehicle (RFP Nos. 1-4, 7, 9, 11, 13); (2) Defendant’s policies and procedures for handling Song-Beverly and lemon law cases (RFP No. 21); (3) documents related to MBUSA’s internal investigations encompassing customer complaints and field service actions for same or similar defects/nonconformities found within vehicles of the same year, make, model, or substantially similar vehicles, that it undertook and submitted to NHTSA in compliance with federal regulation (RFP Nos. 30, 31).

Plaintiff states that on June 25, 2024, MBUSA served deficient responses replete with general and specific boilerplate objections.  The Court notes that this was the minimum 30 days after service of the RFPs, i.e., no extensions were granted.  On July 12, 2024, Plaintiff asserts that her counsel served Defendant with a detailed meet and confer letter identifying each issue taken with MBUSA’s allegedly procedurally deficient responses and improper objections and outstanding production along with Plaintiff’s supporting authorities. On that same date, Plaintiff notes that Defendant’s counsel referred Plaintiff’s counsel to one of their designated attorneys to meet and confer. Plaintiff’s counsel noted that he attempted to contact the designated counsel on the issue raised within her letter. However, Plaintiff’s counsel notes that she was unable to  contact that lawyer to conduct the meet and confer session.

Plaintiff notes that despite Plaintiff’s counsel’s written and subsequent telephonic attempts to contact Defendant’s counsel, Defendant’s counsel did not respond to Plaintiff’s request to meet and confer regarding the issues raised in the July 12, 2024 letter. Further, Plaintiff notes that Defendant also failed to provide any alternative availability for the conference in good faith. Further, to date, Plaintiff also notes that no verified responses nor supplemental production was ever served.

Accordingly, Plaintiff has brought this Motion to Compel Further Responses to Requests for Production of Documents, Set One.

B. Procedural¿¿¿ 

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On August 9, 2024, Plaintiff filed her Motions to Compel MBUSA’s Further Responses to Requests for Production of Documents, Set One. On August 30, 2024, MBUSA filed an opposition brief. On September 6, 2024, Plaintiff filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

            With Plaintiff’s reply brief, she filed a request for judicial notice. The Court DENIES this request as it was brought on reply, and not with the moving papers.

III. ANALYSIS¿ 

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A.    Legal Standard

A party may file a motion compelling further production if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code Civ. Proc., § 2031.310.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).) To prevail, the moving party must first offer specific facts demonstrating “good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)¿¿¿ 

The court shall impose sanctions on a party who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or other circumstances make imposing a sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2031.310, subd. (j)(1).)¿¿ 

B.    Discussion

                                     i.          Meet and Confer Efforts

            MBUSA’s opposition argues that Plaintiff failed to engage in a good faith effort to meet and confer. Defendant asserts that Plaintiff’s June12, 2024, Plaintiff’s counsel sent via email a long, proforma, boilerplate-like purported meet and confer to MBUS’s counsel which unreasonably demanded a response to it by June 19, 2024. Further, MBUSA argues that from July 2024 to date, MBUSA’s counsel has no record of any further meet and confer attempts by Plaintiff’s counsel despite the claim that he attempted to telephonically meet and confer after MBUSA failed to respond. The Court is perplexed as to why MBUSA would raise a meet and confer issue when there is no evidence that MBUSA’s counsel responded to the meet and confer letter, whether that letter was boilerplate, proforma, or otherwise. The Court finds that Plaintiff’s meet and confer attempts were sufficient prior to bringing this motion.

                                   ii.          Requests for Production of Documents, Set One

            Plaintiff seeks this Court to order MBUSA to provide further responses to Requests for Production of Documents, Set One, Nos. 1-3, 7, 9, 11, 13-21, 30, and 31. The Corut will discuss each below.

RFP No. 1: This request seeks MBUSA to produce “[a]ll DOCUMENTS regarding the SUBJECT VEHICLE that are within [MBUSA’s] Customer Relations Center. “SUBJECT VEHICLE” shall mean the vehicle which is the subject of this lawsuit and identified as the 2021 Mercedes-Benz G-Class, bearing VIN No.: W1NYC7HJXMX405112.”

            The Court GRANTS this request as the information is relevant and is likely to lead to admissible evidence as it is tailored to the subject vehicle.

RFP No. 2: This request seeks MBUSA to produce “[a]ll DOCUMENTS which evidence, support, refer, or relate to each of the affirmative defenses as set forth in [MBUSA’s] Answer to Plaintiff’s Complaint.”

            The Court will take oral argument on this RFP, as there is some inherent ambiguity in the request, i.e., does Plaintiff seek only those documents which evidence or support “each” affirmative defense, or does Plaintiff seek documents which evidence or support “any of” the defenses?  Assuming the latter is what was intended, many affirmative defenses in MBUSA’s Answer (or in the answers field by an civil litigation defendant) are legal defenses, not ones which would necessarily have evidentiary support. 

RFP No. 3: This request asks MBUSA to produce “[a]ll DOCUMENTS which evidence, describe, refer, or relate to any inspection of the SUBJECT VEHICLE.” In response to this request, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; MBUSA was not a party to the underlying agreement; the requests seek information in the possession, custody, and/or control of third parties; assumes facts that have not been established; and is an incomplete hypothetical. The Court disagrees with most of the objections, but sees some ambiguity in the lack of clarity as to who performed the inspection.  This ambiguity is resolved by interpreting the RFP to encompass an inspection of the subject vehicle where there is a document or record of the inspection and that document is in MBSA’s [possession, custody or control.  and overrules the objections. However, Defendant MBUSA also responded that “after a diligent search, [MBUSA] does not have any relevant and non-privileged documents currently in its possession, custody, or control.”

            If MBUSA is truly asserting that the only responsive documents are privileged, the Court finds that MBUSA should have produced a privilege log.   CCP section 2031.240(c)(1) specifies: “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”  The purpose of this  factual description is to permit the Court to evaluate the claim of privilege. (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188–1189.) 

Further, the response subject to objection perhaps ignores the fact that MBUSA’s authorized dealers must have conducted an inspection of the subject vehicle when it was brought in for repair or servicing.  If MBUSA is asserting that it lacks possession, custody or control of documents generated by its authorized service and repair facilities, in most other Song Beverly cases before this Corut there is a franchise agreement between the manufacturer/distributor and its authorized dealers which gives the franchisor access to its franchisee’s records in connection with warranty claims.  A party responding to a discovery request “cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)  By analogy of the similar rule for responses to interrogatories, “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations . . . .”  (Code Civ. Proc., § 2030.220(c).)  Accordingly, MBUSA should make a good faith effort to obtain the information by inquiry to its dealer organizations who performed warranty work on the subject vehicle. 

Further, in the context of warranty claims, the dealers typically submit paper or electronic information relating to the work for which the dealer is seeking reimbursement, which typically includes some type of inspection and assessment of the vehicle in order to perform diagnostic or repair work.  Those are the types of documents the RFP reasonably seeks.   While the word “inspection” could be argued to be ambiguous, in this context the ordinary dictionary definition should be applied to MBUSA’s written response and production of documents.  The motion is GRANTED.  MBUSA must provide a further verified responses, preserving the privilege objection if a privilege log is provided, and otherwise without further objection.  If it will be MBUSA’s position that it lacks the ability to access its authorized dealer’s records for purposes of providing discovery responses, MBUSA takes that position at its peril for future purposes in this case.

RFP No. 7: This request asks MBUSA to “[p]roduce all DOCUMENTS that refer or relate to all diagnostic trouble codes that are electronically stored by [MBUSA] or [MBUSA’s] authorized repair facility as result of any inspections or repairs conducted on the SUBJECT VEHICLE.” In response to this request, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; MBUSA was not a party to the underlying agreement; the requests seek information in the possession, custody, and/or control of third parties; assumes facts that have not been established; and is an incomplete hypothetical. The Court disagrees and overrules the objections. However, Defendant MBUSA also responded that “after a diligent search, [MBUSA] does not have any relevant and non-privileged documents currently in its possession, custody, or control.

            While there are some matters of this request to discuss, the Court GRANTS Plaintiff’s request and orders MBUSA to provide further, code-compliant responses without objection.   The discussion of access to dealer records in the Court’s Tentative Ruling on RFP No. 7 applies here as well.  It may well be that the dealers did not provide print outs of diagnostic trouble codes in its submission of warranty claims to MBUSA in this case, but a party is required to produce documents that it reasonably can access, such as a wife asking her husband for documents he may have, or a franchisor asking its franchisee for responsive documents.  MBUSA should ask its dealers for printout of dealer warranty records including any printouts or digitally stored records of the trouble codes, and produce those to Plaintiff. 

RFP No. 9: This request seeks MBUSA to “[p]roduce all DOCUMENTS that refer to or relate to any CONTACT or COMMUNICATIONS between [MBUSA] and [MBUSA’s] authorized repair facility regarding the SUBJECT VEHICLE.” In response, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; and is an incomplete hypothetical. The Court disagrees and overrules the objections. However, Defendant MBUSA also responded that “after a diligent search, [MBUSA] does not have any relevant and non-privileged documents currently in its possession, custody, or control.”

            The Court GRANTS this motion as to non-privileged documents and requires MBUSA to produce a privilege log for those communications that are privileged. In the Court’s view, an email, text, or warranty claim reimbursement request and MBUSA’s approval or disapproval of the same between MBUSA and any of its authorized service and repair facilities who submitted warranty claims for warranty work on the subject vehicle qualifies as a relevant, discoverable COMMUNICATION for purposes of a further response to this RFP. 

RFP No. 11: This request seeks MBUSA to “[p]roduce all DOCUMENTS that refer to or relate to any summaries of all amounts paid by [MBUSA] for warranty repairs performed on the SUBJECT VEHICLE.” In response to this request, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; MBUSA was not a party to the underlying agreement; the requests seek information in the possession, custody, and/or control of third parties; calls for legal conclusion; assumes facts that have not been established; and is an incomplete hypothetical. The Court disagrees and overrules the objections. However, Defendant MBUSA also responded that “after a diligent search, [MBUSA] does not have any relevant and non-privileged documents currently in its possession, custody, or control.

            In other Song-Beverly litigation that has come before the Court for trial or discovery motions, it is typical for the warrantor to have a “dashboard” page that summarizes the vehicle’s repair history in summary fashion, and this summary typically includes claim reimbursement amounts on a visit by visit basis.  If MBUSA does not have such information or documents, then the further response without objection (other than privilege if a privilege log is provided) may permissibly so state. 

RFP No. 13: This requests seeks MBUSA to produce “[a]ll DOCUMENTS which evidence, describe, refer, or relate to any CONTACT or COMMUNICATIONS between [MBUSA] and the Plaintiff.” In response to this request, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; assumes facts that have not been established; is an incomplete hypothetical; and that the information is equally available to propounding party. Defendant MBUSA also responded that “after a diligent search, [MBUSA] does not have any relevant and non-privileged documents currently in its possession, custody, or control.

            The Court GRANTS the motion as to this request. The Court generally finds discovery seeking communications between the plaintiff and the warrantor/manufacturer and/or its servicing dealers concerning the subject vehicle to be relevant and likely admissible.  For example, many motor vehicle manufacturers have client communication or customer care centers to field calls and emails from customers about their vehicle.  The Court overrules the objections and orders a verified further response.  If in fact there are no such documents and MBUSA had no communication pre-litigation with Plaintiff, then the amended response without objections permissibly may so state.  As such, the Court GRANTS this request as to communications between MBUSA and Plaintiff concerning the subject vehicle.

RFP No. 14: This request asks MBUSA to produce: “[a]ll DOCUMENTS which evidence, describe, refer, or relate to any CONTACT or COMMUNICATIONS with any third-parties relating to the SUBJECT VEHICLE.” In response to this request, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; attorney-client privilege and/or work product doctrine; MBUSA is not a party to the agreement; seeks information in the possession, custody and/or control of third parties; seeks information that is confidential, proprietary and trade secret; seeks information that is proprietary to and owned by Responding Party; infringes on proprietary rights; privacy rights; legal conclusion; assumes facts that have not been established; is an incomplete hypothetical; and argumentative.

            The Court DENIES the motion as to this request on multiple grounds. However, on the grounds of overbreadth and vagueness along, the Court notes that this request does not state who the communications are between with the third-parties. Whose contact or communication with third-parties is asked to be produced? As written, the ambiguous request is DENIED.

RFP Nos. 15, 18, 21: These requests asks MBUSA to produce “[a]ll DOCUMENTS which evidence, describe, refer, or relate to YOUR rules, policies, or procedures since 2020 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Song-Beverly Consumer Warranty Act” (RFP No. 15); “[a]ll DOCUMENTS which evidence, describe, refer, or relate to YOUR Policies and Procedures for determining whether a vehicle should be repurchased or replaced under the Song-Beverly Act” (RFP No. 18); and “[a]ll DOCUMENTS evidencing and/or describing YOUR training materials related to [MBUSA’s] policy regarding how to calculate a repurchase.” In response to these requests, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; attorney-client privilege and/or work product doctrine; MBUSA is not a party to the agreement; seeks information in the possession, custody and/or control of third parties; seeks information that is confidential, proprietary and trade secret; seeks information that is proprietary to and owned by Responding Party; infringes on proprietary rights; privacy rights; legal conclusion; assumes facts that have not been established; is an incomplete hypothetical; and argumentative.

            The Court GRANTS this request in part as to time. Generally, this Court finds that the applicable Warranty Policy and Procedure Manual published by defendant and provided to its authorized repair facilities, within the State of California, for the year the lawsuit was filed is relevant and likely produce admissible evidence.  If a separate written policy, procedure, or manual exists regarding repurchases or buy backs appliable to vehicles sold or leased in California, that would also be required to be produced for the year the lawsuit was filed and/or the year Plaintiff contends the vehicle became qualified for repurchase (such as upon satisfaction of the Presentation Element of a Song-Beverly cause of action under Section 1793.2(d)(2) or 1793.22).  Such documents should be produced subject to a protective order.

            As such, this Court GRANTS this request, but limits the year to the year the lawsuit was filed, and/or the year Plaintiff contends the vehicle became qualified for repurchase pursuant to a protective order.

RFP Nos. 16-17: These requests seek from MBUSA, all documents which evidence, describe, refer, or relate to MBUSA’s call center policies and procedures for escalating customer complaints relating to any defects present in their vehicle (RFP No. 16), and for creating a service activity in response to a customer complaint relating to any defects present in their vehicle (RFP No. 17). In response to these requests, MBUSA objected as follows: vague, ambiguous, and unintelligible; overbroad and unduly burdensome; information not relevant and not reasonably calculated to lead to the discovery of admissible evidence; fails to specifically describe each item or reasonably particularize each category of item; attorney-client privilege and/or work product doctrine; MBUSA is not a party to the agreement; seeks information in the possession, custody and/or control of third parties; seeks information that is confidential, proprietary and trade secret; seeks information that is proprietary to and owned by Responding Party; infringes on proprietary rights; privacy rights; legal conclusion; assumes facts that have not been established; is an incomplete hypothetical; and argumentative.

            The Court notes that it finds the information sought relevant, but notes that the length of time sought is required to be narrowed to the relevant period of time for this case. The Court is inclined to GRANT these requests, in part, so long as they are limited to the year Plaintiff’s vehicle became qualified for repurchase pursuant to a protective order.   While the word “escalating” is somewhat ambiguous, the Court finds that the normal dictionary definition should be applicable here, i.e., to raise to another or the next level.  That means, if there is a policy or procedure for a call center employee to raise or escalate a contact with a customer to a supervisor or other person above the level of the call center employee, those are the policies or procedures to produce. 

RFP Nos. 19, 20: This request seeks MBUSA to produce “[a]ll DOCUMENTS which evidence, describe, refer, or relate to any flow charts used by YOU for the purpose of escalating customer complaints.” (RFP No. 19.) Further, RFP No. 20 requests: “All DOCUMENTS which evidence, describe, refer, or relate to any flow charts used by [MBUSA] for the purpose of evaluating whether a vehicle qualifies for repurchase or replacement under the Song-Beverly Act.”

            The Court first would limit the time and scope of this RFP, which could have been accomplished in the meet-and-confer process, to the year in which Plaintiff communicated with a customer service call center or pre-litigation department, and to only those employees responsible for customer contacts from Southern California. As such, the Court GRANTS this request in part pursuant to the limitation. If, for example, there is no flow chart or diagram, the further verified response without objection should state the reason for any inability to comply with this RFP. 

RFP No. 30: This request seeks MBUSA to produce “[a]ll DOCUMENTS, in the form of a list or compilation, of other Customer Complaints in [MBUSA’s] electronically stored information of database(s) that are SUBSTANTIALLY SIMILAR to complaints made by Plaintiff with respect to the SUBJECT VEHICLE in other 2021 Mercedes Benz G-class vehicles. The request clarifies that “SUBSTANTIALLY SIMILAR” shall mean similar customer complaint that would be the same nature of the reported system, malfunction, trouble code, Technical Service Bulletin Recommendation, dashboard indicator light, or other manifestation of a repair problem, as description listed in any warranty summary or repair order for the SUBJECT VEHICLE. [The customer complaints in this matter can be found in Defendant’s warranty history/summary and within the line items of the repair orders created at Defendant’s authorized repair facility. If YOU are having issues determining Plaintiff’s Complaints, Plaintiff is willing to meet and confer and list out the specific complaints and the language used to describe them. This should not include any routine or scheduled maintenance items.].

            First, this Court notes that the “similar customer complaint being of the same nature of the subject vehicle” is vague and compound based on the listed alleged defects. The RFP on its face recognizes the vagueness and compound nature of the request by its offer to meet and confer as to what the RFP means, and because the RFP is no complete in and of itself but rather requires the responding party to refer back and for the to a repair history or to multiple other records.     The Court DENIES this Request without prejudice to a more specific RFP or RFPs.  For future reference and guidance,  this Court typically allows discovery as to other customers’ complaints, limited to vehicles purchased in California for the same year, make and model of the subject vehicle.   Further, this Court generally limits the other customer complaints in scope to the description of the symptom as shown on the dealer repair records, not merely the symptoms as characterized in the pleadings.  The Court typically discusses with counsel the type of documents that may be required and the format for a production of documents such as in a sortable Excel spreadsheet that lists a compilation or summary of voluminous documents.  Finally, the Court typically limits discovery of other customer complains to repair symptoms in the subject vehicle that appeared on two or more repair visits. 

RFP No. 31: This request seeks “[a]ll DOCUMENTS that refer to, reflect, or relate to any Field Service Action issued, or in the process of being issued, in response to complaints experienced by Plaintiff as described in Defendant’s warranty history/summary and within the line items of the repair orders created at Defendant’s authorized repair facility.”

            The Court DENIES this RFP without prejudice to a future, more tailored request that takes into account the points raised by the Court as to RFP No. 30. 

IV. CONCLUSION 

For the foregoing reasons, Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents is GRANTED in part and DENIED in part.

Plaintiff is ordered to give notice.