Judge: Upinder S. Kalra, Case: 20STCV24342, Date: 2022-09-13 Tentative Ruling
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Case Number: 20STCV24342 Hearing Date: September 13, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: September
13, 2022
CASE NAME: Loara Azekri v. Toyota Motor Sales,
USA, Inc.
CASE NO.: 20STCV24342
PLAINTIFF’S
MOTION TO COMPEL FURTHER RESPONSES
MOVING PARTY: Plaintiff Loara Azekri
RESPONDING PARTY(S): Defendant Toyota Motor Sales,
USA, Inc.
REQUESTED RELIEF:
1. An
order compelling Defendant to provide further responses to RPD No. 49.
TENTATIVE RULING:
1. Motion
to Compel Further is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On June 26, 2020, Plaintiff Loara Azekri (“Plaintiff”) filed
a complaint against Defendant Toyota Motor Sales, USA, Inc., (“Defendant.”) The
complaint allged four causes of action based on Breach of Warranty and
Song-Beverly claims. Plaintiff alleges that she purchased a vehicle that was
manufactured by Defendant Toyota. During the express warranty, the car
exhibited mechanical failures that Defendant failed to property repair.
On August 24, 2020, Defendant filed an Answer.
The current Motion to Compel Further was filed on July 5,
2022. Defendant’s Opposition was filed on August 30, 2022. No reply has been
filed as of September 8, 2022.
Meet and Confer:
Plaintiff indicates that a meet and confer letter was sent
to Defendant and the parties underwent an Informal Discovery Conference on
April 11, 2022. The Plaintiff then filed this motion.
Separate Statement
Under Rule 3.1345, a Separate Statement must include the
request, the response, and why a further response is provided. Here, the
Plaintiff’s Separate Statement has the required information.
Timely:
Under CCP §
2030.300, a party has 45 days after receipt of the verified responses to file a
motion to compel further. Here, the parties underwent an IDC and then the
Plaintiff filed the current motion.
LEGAL STANDARD
The propounding party may bring a
motion to compel further responses to a demand for production if the
propounding party deems that production is deficient, incomplete, or contains
meritless objections. CCP § 2031.310(a). The legal
burden to justify refusing or failing to provide discovery lies with the
objecting party. (Coy v.
Superior Court (1962) 58 Cal.2d 210, 220).
The motion must be accompanied by a
good-faith meet-and-confer declaration. CCP § 2031.310(b). “A
determination of whether an attempt at informal resolution is adequate . . .
involves the exercise of discretion.” (Stewart
v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016).
“The history of the litigation, the nature of the interaction between counsel,
the nature of the issues, the type and scope of discovery requested, the
prospects for success and other similar factors can be relevant. Judges
have broad powers and responsibility to determine what measure and procedures
are appropriate in varying circumstances.” Id.
CCP § 2031.310 provides the
court shall apposes monetary sanctions against a person, party, or attorney
that unsuccessfully makes or opposes a motion to compel further response,
unless that subject to sanction acted “with substantial justification or other
circumstances make the imposition of sanctions unjust.” CCP § 2023.010(h).
The court “may impose a monetary sanction” against any attorney or party, or
both, to pay the reasonable expenses, including attorney fees, if there has
been a “misuse of the discovery process. CCP § 2023.030(a). “A
trial court has broad discretion when imposing a discovery
sanction.” (Lee v. Lee (2009)
175 Cal.App.4th 1553, 1559).
ANALYSIS:
Plaintiff moves to compel Defendant to provide a further
response to RPD No. 49.
No. 49 requests the following:
All DOCUMENTS which REFER or RELATE
to YOUR internal evaluation of and/or decision regarding Plaintiff’s personal
request to YOUR customer service employees to repurchase the VEHICLE. This
includes the internal process and DOCUMENTS referenced by Danica Sorenson in
her deposition. (For the purposes of these requests, “VEHICLE” means the 2019
Toyota Tundra with VIN 5TFDY5F13KX778388.)
In response, Defendant asserted the
following objections: compound, vague, ambiguous, overbroad, and burdensome;
violates attorney-client privilege; seeks irrelevant document unlikely to lead
to the discovery of admissible evidence; calls for the disclosure of proprietary
and/or confidential information; and is an invasion of privacy and violates
third party privacy rights.
Plaintiff argues that the
objections raised by Defendant are improper. First, the information is
reasonably calculated to lead to the discovery of admissible evidence as it
concerns whether Defendant should have repurchased the vehicle and could
indicate if Defendant willfully ignored the obligation to repurchase the
vehicle, justifying a civil penalty. Second, the attorney-client privilege does
not apply. This request seeks the evaluations regarding Plaintiff’s request
that Defendant repurchase the vehicle; no attorney was involved in this
evaluation and evaluations were sent to the legal department after it was
completed. Lastly, there is no expert involved in these evaluations, this
analysis took place prior to a lawsuit, and this analysis is required under
Song-Beverly.
Defendant contends that the
requested information is protected under the attorney-client privilege. The
redacted Case Activity Report are direct communications from Defendant’s employees
to the legal department for the “purpose of allowing the attorneys and
paralegals in the Legal Department to render legal advice to TMS relative to a
given claim.” (Opp. 4: 27 – 5: 3, Dec. Guillot ¶ 13, Dec. Sorenson ¶ 4.)
Under CCP § 2031.240(c)(1), if a
party objects to a request based on privilege, “the response shall provide
sufficient factual information for other parties to evaluate the merits of that
claim, including, if necessary, a privilege log.” Further, “when a party
asserts the attorney-client privilege, that party has the burden of showing the
preliminary facts necessary to support the privilege…. After this burden is met, or where there is
no dispute concerning the preliminary facts, the burden shifts to the party
opposing the privilege to show either the claimed privilege does not apply, an
exception exists, or there has been an express or implied waiver.
[Citation].” (Venture Law Group v. Superior Court (2004) 118 Cal. App. 4th 96,
102.) The Court has reviewed the relevant portions of Danica Sorenson’s
deposition testimony, Defendant’s PMC.
Plaintiff’s counsel repeatedly inquired about the missing report. Ms. Sorenson maintained that only Defendant’s
legal department can deny a “lemon law” buy back request and the report was
part of an internal notes system, “developed and overseen [by] our legal
department,” to support the denial. (Decl. Babbitt, Exhibit 1.) This exchange is sufficient to sustain the
invocation of the attorney client privilege in that they are direct
communications between a client and counsel for the purpose of giving legal
advice on the ultimate issue, the decision to deny repurchase.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Motion to
Compel Further is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: _________________________________ Upinder
S. Kalra
Judge
of the Superior Court