Judge: Theresa M. Traber, Case: 20STCV03021, Date: 2022-12-12 Tentative Ruling

Case Number: 20STCV03021    Hearing Date: December 12, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 12, 2022                            TRIAL DATE: January 24, 2023

CASE:                         Jacob Aaron Morayniss, et al. V. Volkswagen Group of America, Inc.

CASE NO.:                 21STCV03021

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION (SET TWO)

MOVING PARTY:               Plaintiffs Jacob Aaron Morayniss and John David Morayniss

RESPONDING PARTY(S): Defendant Volkswagen Group of America, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on January 15, 2021. Plaintiffs leased a new 2021 Audi RS Q8 Quattro which Plaintiffs allege was delivered with serious defects including engine and electrical system defects.

            Plaintiffs move to compel further responses to certain requests in Plaintiffs’ Requests for Production (Set Two).

TENTATIVE RULING:

            Plaintiffs’ Motion to Compel Further Responses to Requests for Production is DENIED with respect to Request for Production No. 1 and otherwise GRANTED.

            Defendant is to provide verified, code-compliant responses without objections within 30 days of the date of this order. To the extent that any documents to be produced are subject to the stipulated protective order, Defendant may produce those documents pursuant to its terms.

DISCUSSION:

            Plaintiffs move to compel further responses to Plaintiffs’ Requests for Production, Set Two, Nos. 1-55.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The Declaration of Gregory Sogoyan states that the parties exchanged meet and confer letters regarding the instant motion between September 8 and September 22, 2022. (Declaration of Gregory Sogoyan ISO Mot. ¶¶ 21-24.) In the Court’s view, an exchange of letters is not sufficient to satisfy the requirement for a “reasonable and good faith attempt” to informally resolve the matter. Nevertheless, the Court will consider the merits of the motion in the interest of an efficient resolution of this dispute.

Timeliness

A motion to compel further responses to a demand for production must be served “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 propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Defendant served its responses on September 7, 2022. (Sogoyan Decl. ¶ 19, Exh. 5.) 45 days from that date was October 22, 2022, a Saturday. The deadline to file this motion was therefore extended to October 24, 2022, the date this motion was filed. (Code Civ. Proc. §§ 12, 12a.)  The motion is therefore timely.

Requests Nos. 2, 3, and 5

            Requests Nos. 2, 3, and 5 seek documents relating to Plaintiffs’ own vehicle and the defects within, and are therefore relevant on their face. The Court therefore finds that Plaintiffs have shown good cause for these requests.

            Defendant objects to these requests on the basis that they are duplicative of requests Nos. 4, 8, 10, 12, 13, and 14 in Plaintiffs’ Requests for Production (Set One). Following the initial hearing on this matter, in which the Court’s tentative indicated that Defendant did not set forth, with specificity, the manner in which the requests were unreasonably duplicative, the Court, following vigorous oral argument by Defendant, requested supplemental briefing on whether the discovery sought was unreasonably cumulative. Having been provided with this opportunity, Defendant has simply repeated its arguments from the opposition almost verbatim. With the exception of three examples set out in the supplemental opposition of specific requests that are purportedly identical to previous requests, Defendant continues to assert that three discovery requests in Set Two are, taken collectively, identical to six requests set forth in Set One because they seek, generally, the same types of documents. This argument is unpersuasive, and insufficient to justify an objection that the requests are unreasonably cumulative. Further, Defendant’s argument that the Court already ruled on the propriety of these requests in connection with the first set of requests for production in its July 2022 ruling is not well taken, as many of the requests cited in Set One were not at issue in that ruling.

            With respect to this set of requests, Defendant only identifies two requests which are apparently identical to previous requests. Defendant first contends that Request for Production (Set Two) No. 2 is identical to Request (Set One) No. 4. The latter sought all documents relating to Plaintiffs or the vehicle in the possession of Defendant, its customer relations, its customer service, or its authorized dealership. (Declaration of Kevin Kumar ISO Opp. Exh. G. p. 5:11-16.) However, Request (Set Two) No. 2 seeks documents relating only to the subject vehicle that are within Defendant’s Customer Relations Center only. (Kumar Decl. Exh. B. p. 3:8-10.) These requests, on their face, are not identical. Instead, as Plaintiffs contend in their supplemental reply, Request (Set Two) No. 2 seeks to narrow the inquiry by determining what documents are maintained in the Customer Relations Center. The Court is unpersuaded by Defendant’s argument that this request is unreasonably duplicative. Further, the Court notes that if, as Defendant contends, all documents responsive to this request have already been produced, Defendant may either produce those documents again or may identify which documents in its initial production are responsive to this request.

            Defendant contends that Request (Set Two) No. 3 is also identical to Request (Set One) No. 4. The former request seeks all documents regarding any service, warranty, or the alleged defect in the subject vehicle that Defendant issued to any dealer, regional or zone offices, fleet purchasers, or other entities. (Kumar Decl. Ex. B. p. 4:7-10.) This request is once again distinct from Request (Set One) No. 4 on its face, as the new request narrows the scope of the inquiry from all documents relating to the vehicle whatsoever to documents regarding service, warranty, and the defect at issue. The Court is similarly unpersuaded that this request is unreasonably duplicative.

Requests Nos. 1, 4, 6, 7, 8, and 9

            Requests Nos. 1, 4, 6, 7, 8, and 9 concern documents relating to Defendant’s warranty and vehicle repurchase policies, procedures, and practices. These documents are directly relevant to this case, as they may be evidence that Defendant “adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the Act.” (Oregel v. American Isuzu Motors (2001) 90 Cal.App.4th 1097, 1104-1105.) The Court therefore finds that Plaintiffs have demonstrated good cause for these requests.

            Defendant objects to these requests specifically on the basis that they are duplicative of requests Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, and 35 in Plaintiffs’ Requests for Production (Set One). As above, despite having had two opportunities to demonstrate how these requests are unreasonably duplicative, Defendant has continued to make the same insufficient assertion that a set of six discovery requests is, taken collectively, identical to a set of fifteen discovery requests because both sets seek the same general categories of documents. This argument is unpersuasive, and insufficient to justify an objection that the requests are unreasonably cumulative.

            Defendant identifies only one request in this set with specificity that is said to be identical to a previous request, arguing that Request (Set Two) No. 1 is identical to Request (Set One) No. 23. A review of these requests confirms Defendant’s contention, as both seek all documents relating to Defendant’s policies, procedures, or guidelines for determining whether a vehicle is eligible for repurchase. (See Kumar Decl. Exh. B. p.2:8-11, Exh. G. p. 29:5-7.) The only difference between the two is that the new request specifies that it seeks documents relating to eligibility for repurchase “under the Song-Beverly Consumer Warranty Act.” (Id.) This response, contrary to Plaintiffs’ contentions, is essentially identical to a previous request. Thus, as to this request only, the Court finds that Defendant has justified this objection, and a further response should not be compelled.

Requests Nos. 10-55

            Requests Nos. 10-55 concern documents, including electronically stored information, regarding similar defects in vehicles of the same year, make, and model as Plaintiffs’ vehicle. Requests Nos. 10 through 32 concern defects related to the powertrain in vehicles of the same year, make, and model. Requests Nos. 33 through 55 concern defects relating to the electrical systems in vehicles of the same year, make and model.

            Plaintiffs argue these categories of documents would help establish that Defendant was aware of the defect but lacked any means of fixing the defect, and therefore, has acted in bad faith by refusing to repurchase Plaintiffs’ vehicle. These requests seek documents showing the same defect in other vehicles of the same year, make, and model as the subject vehicle so that Plaintiffs may use the experiences of other customers to demonstrate Defendant’s awareness of the defect as well as allow Plaintiffs’ expert to better understand the nature of the defect.

            Evidence of special service bulletins predating purchase of a defective vehicle and evidence of similar defects in other vehicles are both relevant and admissible. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 153.) Admissible evidence is discoverable. (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117-18.) Documents regarding warranty complaints, service histories, and employee records concerning a defect in all affected vehicles, as well as documents regarding the manufacturer’s responses and instructions to cure that defect are discoverable. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 971 [holding that the trial court’s approval of a discovery referee’s report and recommendation of sanctions for failure to produce documents of this nature relating to the subject defect in all affected vehicles was not an abuse of discretion].)

Defendant contends that Donlen and Doppes are both distinguishable from the present case: Donlen because the issue was whether the plaintiff’s expert testimony regarding defects in and special service bulletins relating to other vehicles was inadmissible, rather than production of documents relating to these issues, (Donlen, supra, 217 Cal.App.4th at 138), and Doppes because that case was also an action for fraud, and the manufacturer did not challenge the discovery referee’s findings. (Doppes, supra, 174 Cal.App.4th at 973-74, 993.) Defendant is correct that these cases are factually distinguishable, but the Court disagrees with Defendant that these cases do not support the position that the documents sought are relevant and admissible. In Doppes, the Court of Appeal expressly stated that the trial court did not abuse its discretion in adopting the discovery referee’s report and recommendation. (Doppes, supra, at 971.) Further, expert testimony as in Donlen regarding documentary evidence must necessarily have a foundation in that evidence to be admissible. (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577.)  Documentary evidence on which an expert is testifying must therefore be discoverable. (Glenfed, supra, 53 Cal.App.4th at 1117-18.)

Here, Plaintiff seeks documentary evidence relating to the types of issues directly addressed in both decisions. The Court therefore finds that good cause exists for these requests.

            Defendant objects to these requests specifically on the basis that they are duplicative of Requests Nos. 4, 32, 33, 34, 35, and 36 in Plaintiffs’ Requests for Production (Set One). This argument, which was unpersuasive as to the sets of requests addressed above, is even less persuasive when used to assert that a set of forty-five discovery requests is identical to a set of six requests because they collectively seek the same categories of documents. Further, Defendant does not offer a single example of a request in this set that is unreasonably duplicative, despite having had two opportunities to do so. Defendant has failed to justify this objection.

Objections based on undue burden/request “disproportionate” to the dispute

            Defendant objects to each of these requests on the grounds that they are unduly burdensome. Defendant has failed to provide evidence demonstrating the nature or extent of any burden it would shoulder to provide the requested documents. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 549 [“An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’”].)

Objections based on Vagueness

            Defendant contends that the requests are vague, ambiguous, and overly broad because the requests are prefaced with a definitions page containing “broadening terms.” Defendant contends that these additions render the requests vague, ambiguous, and overly broad as a matter of law under Calcor Space Facillity Inc. v. Superior Court (1997) 53 Cal.App.4th 216. However, Defendant misconstrues the facts and findings of Calcor. In that case, the discovery requests at issue contained three pages of instructions and three pages of definitions, and the Court of Appeal determined that it was the combination of both, coupled with the breadth of the requests, that rendered the discovery “particularly obnoxious.” (Calcor, supra, 53 Cal.App.4th at 223.) Here, Plaintiffs included no instructions in their discovery requests, and only two pages of definitions addressing basic and frequently used terms which, as stated above, are directly relevant and discoverable. (See Sogoyan Decl. Exh. 4.) The Court therefore finds that these objections are not justified.   

Objections based on Trade Secrets

            Defendant also contends that further responses should not be compelled because the documents at issue are confidential internal documents that are subject to the stipulated protected order entered into by the parties on May 25, 2022. However, that is not a basis for the Court to deny a motion to compel further responses. If, as Defendant contends, the documents are subject to the protective order, Defendant may produce those documents pursuant to its terms and procedures.

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CONCLUSION:

            Accordingly, Plaintiffs’ Motion to Compel Further Responses to Requests for Production is DENIED with respect to Request for Production No. 1 and otherwise GRANTED.

            Defendant is to provide verified, code-compliant responses without objections within 30 days of the date of this order. To the extent that any documents to be produced are subject to the stipulated protective order, Defendant may produce those documents pursuant to its terms.

            Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   December 12, 2022                           ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.