Judge: Ronald F. Frank, Case: 24TRCV01882, Date: 2024-09-09 Tentative Ruling
Case Number: 24TRCV01882 Hearing Date: September 9, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: September 9, 2024
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CASE NUMBER: 24TRCV01882
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CASE NAME: Nabila E. Bautista Avelar, et al. v. Toyota
Motor Sales, U.S.A. Inc., et al.
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MOVING PARTY: Defendant,
Toyota Motor Sales, U.S.A., Inc.
RESPONDING PARTY: Plaintiffs,
Nabila E. Bautista Avelar and Yony Valenty Montepeque Del Cid
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TRIAL DATE: Not
Set.
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MOTION:¿ (1) Motion for Protective Order
¿ Tentative Rulings: (1) GRANTED. The Declaration for additional discovery in insufficient
under CCP §2030.050. Cross-requests for
monetary sanctions are both denied.
I. BACKGROUND¿¿
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A. Factual¿¿
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On June 5, 2024, Plaintiffs, Nabila E. Bautista Avelar and
Yony Valenty Montepeque Del Cid (collectively, “Plaintiffs”) filed a complaint
against Defendant, Toyota Motor Sales, U.S.A., Inc., 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; and (3) Violation of the Song-Beverly Act section 1793.2.
On July 31, 2024, Defendant, Toyota Motor Sales, U.S.A.,
Inc. (“Toyota”) notes that Plaintiffs electronically served it with sixty-seven
(67) special interrogatories along with a “Declaration of Plaintiffs’ Counsel
Donald Mahnke Re: Plaintiffs Nabila E. Bautista Avelar and Yony Valenty
Montepeque Del Cid’s Additional Special Interrogatories.” Toyota now requests
this Court issue a protective order to find the number of specially prepared
interrogatories propounded by Plaintiffs “unwarranted” despite the conclusionary
representations made in Plaintiffs’ declaration.
B. Procedural¿¿
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On August 14, 2024, Toyota filed this
Motion for Protective Order. On August 26, 2024, Plaintiffs filed an opposition
brief. On August 28, 2024, Toyota filed a reply brief.
II. ANALYSIS¿
A.
Legal
Standard
Before, during, or after a deposition, any party,
any deponent, or any other affected natural person or organization may promptly
move for a protective order. The motion shall be accompanied by a meet and
confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd.
(a).) (Emphasis added.)
For good
cause shown, the Court may issue any order that “justice requires to protect
any party from unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Section
2025.420, subdivision (b), provides a nonexclusive list of directions that may
be included in a protective order, including orders directing that the
deposition may not be taken at all or that the deposition be taken at a
different time. (Id.)
“ ‘[T]he
issuance and formulation of protective orders are to a large extent
discretionary”’ and a ruling on such motions will not be disturbed absent abuse
of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223
Cal.App.4th 261, 316-17.)
The burden
is on the party seeking the protective order to show good cause for the order
sought. (Id. at p. 318.)
B.
Discussion
i.
Meet and Confer
When
a party issues interrogatories, inspection demands, or requests for admission,
the responding party may promptly move for a protective order. (Code Civ. Proc.,
§§ 2030.090(a), 2031.060(a), 2033.080(a).) However, “[t]his motion shall be
accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ.
Proc., §§ 2030.090(a), 2031.060(a), 2033.080(a).) Here, Toyota asserts that on
August 6, 2024, counsel for Toyota attempted to meet and confer with
Plaintiffs’ counsel regarding this motion and the relevant interrogatories.
However, after receiving no response, Toyota notes that counsel for Toyota sent
a follow up email on August 9, 2024. Despite these efforts, Toyota notes that
as of the August 14, 2024 date it filed this motion, its counsel had yet to
receive a response from Plaintiffs’ counsel.
In opposition, Plaintiffs argue that Toyota’s meet and confer
efforts were inadequate. Plaintiffs assert that the only communication that
remotely addressed the issues in this motion was the email correspondence sent
on August 6, 2024, stating, in pertinent part, “Pursuant to CCP §
2030.030 the maximum number of special interrogatories that a party may
propound is 35. Please withdraw Plaintiffs’ Special Interrogatories Nos. 36-67
otherwise TMS will move for a protective order to find the number of
Plaintiffs’ Special Interrogatories unwarranted.” However, Plaintiffs note that
Defendant had not set forth any justification as to why the interrogatories
should be withdrawn other than Defendant’s contention as to the number of
interrogatories propounded and that Plaintiff’s declaration pursuant to Code of
Civil Procedure section 2030.040 was served.
The
Court notes that a “reasonable and good faith attempt at informal resolution”
“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, 1439.) In the instant matter, Toyota’s counsel’s August 6,
2024 meet and confer letter wrote the following:
“As you are aware, our firm
represents Toyota Motor Sales, U.S.A., Inc. (TMS) in the above referenced
matter. We are in receipt of Plaintiffs’ Special Interrogatories, Set One, to
TMS, containing 67 special interrogatories. Pursuant to CCP § 2030.030 the
maximum number of special interrogatories a party may propound is 35. Please
withdraw Plaintiffs’ Special Interrogatories Nos. 36-67 otherwise TMS will move
for a protective order to find the number of Plaintiffs’ Special
Interrogatories unwarranted.”
(Declaration of
Patrick J.L. Cleveland (“Cleveland Decl.”), ¶ 3, Exhibit C.) The defendant’s email purporting to initiate
the meet and confer process was sent 8 days before this motion was filed. The Plaintiff’s opposition papers include a
declaration from Donald Mahnke attaching Plaintiff’s response email of August
21, 2024 confirming that no actual discussion, phone call or any other meeting
or conferring every occurred between the parties. The August 21 email is dated over two weeks
after defense counsel’s initiating email, and is dated after the motion for
protective order was filed. This is not
a good faith effort on either side to actually meet or confer before the protective
order motion was filed, a failing courts all too often see in discovery disputes
in matters brought under the Song-Beverly Act.
The Court finds that either party is without fault as to the issues of
the meet and confer requirements. In the interest of judicial efficiency, the
Court will nonetheless rule on the matter below, but sanctions will not be awarded
to either party as a result.
ii.
Motion for Protective
Order
Code of Civil Procedure Section 2030.030, subdivision (a)(1) provides
that a party may propound to another party, thirty-five (35) specially prepared
interrogatories that are relevant to the subject matter of the pending action. (Code
Civ. Proc., § 2030.030, subd. (a)(1).) However, under Code of Civil Procedure
Section 2030.040, subdivision (a), “[s]ubject to the right of the responding
party to seek a protective order under Section 2030.090, any party who attaches
a supporting declaration as described in Section 2030.050 may propound a
greater number of specially prepared interrogatories to another party if this
greater number is warranted because of any of the following: (1) The complexity
or the quantity of the existing and potential issue in the particular case; (2)
The financial burden on a party entailed in conducting the discovery by oral
deposition; (3) The expedience of using this method of discovery to provide to
the responding party the opportunity to conduct an inquiry, investigation, or
search of files or records to supply the information sought…” (Code Civ. Proc.,
§ 2030.040, subd. (a)(1), (2), & (3).) Lastly, this Court notes that Code
of Civil Procedure Section 2030.050 provides the declaration for additional
discovery. (Code Civ. Proc., § 2030.050.)
If
the responding party seeks a protective order on the grounds that the number of
requests for admission and/or specially prepared interrogatories is
unwarranted, the propounding party shall have the burden of justifying the
number. (See Code Civ. Proc., §§ 2030.040, subd. (b).) Here, Plaintiffs’
Special Interrogatories, Set One contain sixty-seven (67) interrogatories. This
case involves three causes of action relating to the Song-Beverly Act
including: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2)
Violation of Song-Beverly Act – Breach of Implied Warranty; and (3) Violation
of the Song-Beverly Act section 1793.2.
In
the corresponding declaration served with the Special Interrogatories, counsel
for Plaintiffs, Donald Mahnke (“Mahnke Decl.”) filed a declaration noting that
“[t]he number of questions is warranted under Section 2030.040 of the Code of
Civil Procedure because of the complexity or the quantity of the existing and
potential issues in the particular case and the expedience of using this method
of discovery to provide to the responding party the opportunity to conduct an
inquiry, investigation, or search of files or records to supply the information
sought.” (Mahnke Decl., Exhibit 3b, ¶ 6.) No case -specific fact are provided in this
declaration for additional discovery. The
Section 2030.050 declaration also asserts that “[n]one of the questions in this
set of interrogatories is being propounded for any improper purpose, such as to
harass the party, or the attorney for the party, to whom it is directed, or to
cause unnecessary delay or needless increase in the cost of litigation.”
(Mahnke Decl., Exhibit 3b, ¶ 7.) The Court finds this conclusionary declaration
insufficient to meet the propounding party’s burden of proving the need for more
than 35 special interrogatories on the facts of this specific case. In
line/paragraph 8 of the example declaration for additional discovery listed in
Code of Civil Procedure Section 2030.050, it notes that counsel is to “state
each factor described in Section 2030.040 that is relied on, as well as the
reasons why any factor relied on is applicable to the instant lawsuit.” (Code
Civ. Proc., § 2030.050.) While Mahnke’s supporting declaration appears to rely
on subdivisions (a)(1) and (a)(3) of Code of Civil Procedure Section 2030.040,
Mahnke does not list the reasons why any factor relied on was applicable to the
instant lawsuit of discuss the unique circumstances of this specific case that
justify excusal from the Legislature’s expressed intent that special interrogatories
in the plain vanilla civil lawsuit should be limited to 35. Thus,
Plaintiffs fail to substantially comply with the declaration requirements for
propounding more than thirty-five (35) special interrogatories.
Parties
in some Lemon Law cases tend to proliferate discovery requests and discovery
disputes that are disproportionate to the complexity of issues in such matters,
to the amount in controversy, and to the needs in any particular case. The Court’s observation of the number of
special interrogatories here is that 35 or fewer might have reasonably been
crafted to obtain the information claimed in the Mahnke declaration opposing this
motion to have been needed, but which are not detailed in his Section 2030.050
declaration. The Court also observes that
the Mahnke Declaration in opposition to the motion declares, under penalty of
perjury based on counsel’s personal knowledge (rather than based on a review of
documents or based on discussion with his clients), considerable details of the
subject vehicle’s repair history such as the nature of complaints by the Plaintiffs,
the duration of one repair visit lasting 24 days during the Presumption Period,
the facts of the Plaintiffs’ vehicle acquisition and pre-litigation request for
a buyback, and other purported facts. In
future, the Court suggests that counsel be more cautious about swearing to
facts as to which counsel almost certainly lacks personal knowledge.
Toyota’s
Motion is GRANTED without prejudice to subsequent discovery requests and a more
proper Section 2030.050 declaration for additional discovery in the future.
Plaintiffs counsel may provide the Court with oral argument on plans to provide
such a sufficient declaration in the future. However, as presented, the one attached
to Special Interrogatories, Set One is insufficient.
III. CONCLUSION¿¿
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For the foregoing reasons, Toyota’s
Motion for Protective Order is GRANTED. Both cross-requests for monetary sanctions
are denied.
Moving party is ordered to
give notice.¿¿¿¿
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