Judge: Stephen P. Pfahler, Case: 23CHCV00247, Date: 2023-12-11 Tentative Ruling

Case Number: 23CHCV00247    Hearing Date: December 11, 2023    Dept: F49

Dept. F-49

Date: 12-11-23

Case #: 23CHCV00247

Trial Date: 8-19-24

FURTHER DOCUMENTS

MOVING PARTY: Plaintiff, Paul Markarian

RESPONDING PARTY: Defendant, FCA US LLC

RELIEF REQUESTED

Motion to Compel Further Responses to Request for Production of Documents

SUMMARY OF ACTION

On January 30, 2023, plaintiff Paul Markarian filed a complaint for Violations of Civil Code section 1793.2 and 1794 against FCA US LLC. On March 30, 2023, FCA US LLC answered the complaint.

RULING: Denied.

Plaintiff Paul Markarian moves to compel further responses to request for production of documents, numbers 116-19, 21, 41 and 56. The dispute involves the request for general categories of documents to which Plaintiff alleges unmeritorious objections and non-responsive statements.

Defendant in opposition maintains the responses were appropriate, and furthermore provided supplemental responses regarding either full compliance or the inability to comply. Defendant represents the motion as “harassing” and “unwarranted.”

Plaintiff in reply contends Defendant continues to engage in a pattern of discovery obstruction via failure to disclose database information and means of entering search terms to insure concealment of revealing information. Plaintiff reiterates the right to discovery, and good cause for further production.

Plaintiff generally describes the categories of documents as relating to knowledge of the transmission defect, and the refusal to repurchase the vehicle. The motion itself cites to the amended responses, while the opposition incorporates “amended supplemental responses,” whereby Defendant maintains all documents were produced.

Due to the increasing volume of filed Lemon Law cases in this courtroom and presumably countywide, including the increasing number of motions to compel further responses, particularly for document production, this court generally adheres to certain, consistent guidelines for its cases: an approach allowing discovery into the relevant make and model year for all impacted systems or parts, without opening the door for a general inquiry into any and all lemon law claims filed against vehicle manufacturers for all makes and models, including varying individual and potential system defects. The goal is to facilitate robust adjudication of the case, without imposing any burden on defendant to determine the cause of the purported defects, while also allowing Plaintiff the opportunity to investigate. The court in no way doctrinally adheres to this policy. The court established this policy based on established practice standards common among counsel in this field based on standards established and reviewed by practice and reviewed at least in party by appellate courts. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 153-154; Oregel v. American Isuzu Motors, Inc., supra, 90 Cal.App.4th at p. 1104-1105.) No doubt other courts may take different approaches. The court in no way seeks to invite comparisons with other courtrooms. The court only notes its reasoning behind its policy.

Under the Song-Beverly Act, “[a] plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element). (Civ.Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886–887, 263 Cal.Rptr. 64.)” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

For purposes of the subject motion, the court finds the responses sufficient and code compliant. The motion lacks support for production of documentation beyond the requirements for a “lemon law” case. Thus, information related to the purported defects within the model year should be included in responses, but the court otherwise finds no basis challenging the sufficiency of the responses beyond the model and make via the the conclusive arguments and legal citation. The court declines to follow or even consider unpublished authority. (Majdipour v. Jaguar Land Rover North America, LLC (D.N.J., Oct. 9, 2013, No. 2:12-CV-07849 WHW) 2013 WL 5574626.)

“(a) Unpublished opinion

Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

(b) Exceptions

An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”

Cal. Rules of Court, 8.1115

The motion only addressed the amended responses apparently before amended supplemental responses were provided, which include a mix of a representation regarding the lack of documentation under certain key word search terms with identified databases, and a promise of further production. While the reply challenges the prior lack of identification of certain databases and limited search terms, the court declines to speculate as to the sufficiency of the terms or now identified databases. The court therefore finds the identified search terms utilized by Defendant sufficient, again, for purposes of the subject motion.

As for the to be produced documents, the court declines to consider any sufficiency of said items. It’s not clear whether documents have been produced at the time of the hearing. Upon review of the produced documents or concerns over the databases and utilized search terms, the subject matter may be better addressed as part of the Person Most Knowledgeable/Person Most Qualified deposition sessions. Plaintiff may present more specific inquiry into the sought after areas Plaintiff believes information exists notwithstanding any objections from Defendant.

As for the preemptive challenges to electronic production raised in the motion, the court also declines to address the section regarding electronic publication requirements, and directs Plaintiff to Code of Civil Procedure section 2031.310, subdivisions (e-g). The court also notes the most recent case for the burdens regarding identification on the categories of documents in guiding potential further production demands. (Pollock v. Superior Court of Los Angeles County (2023) 93 Cal.App.5th 1348, 1358.) The court finds no privilege objections in the supplemental responses, thereby necessitating the order of a privilege log.

The motion is therefore denied without prejudice pending further production, the potential for a more precise statement of any potentially deficient responses, and substantive, precise challenge regarding the search terms and representation of non-existent documents. Given the sheer volume of arguments presented in the motion and separate statement, the court reserves the right to direct discovery to a referee, particularly if supervision over electronic production, the PMQ deposition, or other court resource intensive requests, returns to the court. The court therefore strongly encourages the parties to continue to meet and confer pursuant to the guidelines followed by this court on lemon law cases, including cooperation on search terms and careful negotiation for a protective order to address any potential trade secret privilege objections raised in production or during the deposition.

Sanctions not requested either party.

Trial set for August 9, 2024.

Plaintiff to give notice.