Judge William A. Crowfoot, Case Number: 24AHCV00013, Date: 2024-08-29 Tentative Ruling

Judge: William A. Crowfoot, Case: 24AHCV00013, Date: 2024-08-29 Tentative Ruling

On May 13, 2024, plaintiffs Jesus Herrera and Elizabeth Herrera (“Plaintiffs”) filed this motion for an order compelling defendant Volkswagen Group of America, Inc. (“Defendant”) to serve further responses to Request for Production of Documents (“RFP”), Set One, Nos. 1 through 31. These document requests can be grouped generally into three categories: (1) documents regarding the vehicle at issue, a certified pre-owned 2018 Volkswagen Tiguan purchased on September 25, 2021 (“Subject Vehicle”), (2) Defendant’s warranty and replacement/repurchase policies, procedures, and practices, and (3) Defendant’s knowledge of the same or similar defects in other vehicles of the same year, make, and model as the Subject Vehicle.

A motion to compel further responses to a demand for inspection or production of documents (“RFP”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See Code Civ. Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup. Ct (2002) 95 Cal. App.4th 92, 98.)

"The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (Code Civ. Proc., § 2017.020, subd. (a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

As an initial matter, the Court notes that separate statements are intended to aid the Court in its review of the discovery requests and responses at issue. In light of this intended purpose, Defendant’s decision to regurgitate a truncated version of its brief in its response to Plaintiffs’ separate statement, and then copy and paste this boilerplate language throughout a 77-page document is disappointing. The Court notes that any future discovery motion with a separate statement requirement should not include any such boilerplate language from either party and that any inclusion of such repetitive language will result in a continuance of the hearing date and an order to submit a revised separate statement.

As another global matter, Defendant’s responses are insufficient because Defendant cannot unilaterally decide to “interpret” a particular request as excluding privileged communications in order to avoid providing a privilege log. Additionally, articulating such an “interpretation” is redundant if an objection based on the attorney-client privilege has already been made and the party already specifies that only documents to which no objections have been made will be produced. Putting stylistic choices aside, if Defendant wishes to assert the privilege over a particular responsive document, Defendant must provide a privilege log which identifies the document and provides sufficient information to determine whether the privilege applies.

RFP Nos. 1 through 14 seek documents regarding the Subject Vehicle. Defendant’s objections to these RFP Nos. 1 through 11 on the grounds that they are overbroad, vague, or ambiguous are generally not well-taken (with the exception of RFP No. 2). Similarly, Defendant’s objection that Plaintiffs have not “designated the items being sought for production by specifically describing each individual item or by reasonably particularizing each category of item” is not well-taken. Plaintiffs’ descriptions of documents (or categories of documents) sought in each RFP (except RFP No. 2) are sufficiently particularized and any further clarification could be obtained by meeting and conferring.

In addition, the Court is not persuaded by Defendant’s argument that it has already produced a number of documents and that Plaintiffs are unable to identify any missing documents. The onus is not on Plaintiffs to guess what Defendant is withholding, but to ensure that Defendant provides a response reflecting its commitment to produce all responsive documents without withholding any based on specious and boilerplate objections.

Therefore, the motion is GRANTED with respect to RFP Nos. 1, 3, 4, 5, 6, 7, 9, 10, 11, 13, and 14. Further Code-compliant responses must be served within 20 days. If Defendant objects to producing any specific document on the grounds of privilege/attorney work product, Defendant must provide a privilege log identifying any withheld documents.

The motion is DENIED as to RFP No. 2. The demand for “all documents which evidence, support, refer, or relate to each of the affirmative defenses as set forth in [Defendant’s] Answer to Plaintiff’s Complaint” is overbroad and fails to reasonably particularize each category of item.

The motion is GRANTED with respect to RFP No. 8, which demands documents “including recalls, technical service bulletins, and dealer advisories that were issued for the Subject Vehicle.” A further response is required because Defendant’s objections that this RFP is overbroad, not sufficiently particularized, or demands trade secrets or confidential and proprietary business information are not well-taken. Recalls, TSBs, and dealer advisories are public information. Also, Defendant improperly limits its response to only those recalls which were “performed” on the Subject Vehicle, as opposed to those TSBs and recalls which apply to the Subject Vehicle. Accordingly, Defendant must produce TSBs, recalls notices, and dealer advisories issued for 2018 Volkswagen Tiguan vehicles purchased or leased in California, regardless of whether they were performed or mentioned in the Subject Vehicle’s repair history.

The motion is GRANTED with respect to RFP No. 12, which demands all photographs or videotapes of the Subject Vehicle taken by Defendant or its authorized repair facility. Defendant’s response is contradictory because it identifies photographs that would be included with dealer repair orders (and refers to a production of those orders as “Exhibit C”) but then states that no responsive items have ever been in its possession, custody, or control. Documents either do or do not exist. Therefore, a further response is required.

RFP Nos. 15 through 18, and 22 through 29, seek all documents which “evidence, describe, refer, or relate” to Defendant’s written warranties, policies, and procedures for handling customer complaints and buyback requests. RFP Nos. 19 and 20 seek all documents which “evidence, describe, refer, or relate” to “flow charts” used by Defendant to escalate customer complaints or evaluate whether a vehicle qualifies for repurchase or replacement under the Song-Beverly Act. RFP No. 21 demands all documents “evidencing or describing” training materials related to policies for calculating repurchases.

Plaintiffs argue that the information within the requested documents are probative of how Defendant handles customer complaints, and whether Defendant abides by its affirmative duties to repurchase or replace defective vehicles under the Song-Beverly Act. The Court agrees that Defendant’s manuals, policies, procedures, and training materials may support Plaintiffs’ claim for civil penalties because they will show if Defendant wrongfully refused to repurchase the Subject Vehicle. Nevertheless, Plaintiffs’ use of the phrase “evidence, describe, refer, or relate” is too broad. Plaintiffs are entitled to the manuals, policies, and procedures regarding customer complaints and requests for repurchase or replacement under the Song-Beverly Act applicable to the Subject Vehicle, but not every document which possibly relates to them. Furthermore, the production of any manuals, polices, and procedures are limited to those which are applicable to vehicles sold or leased in California since Plaintiffs’ date of purchase.

Plaintiffs also argue that Defendant has somehow waived the attorney-client privilege or work product doctrine by placing its training and policies at issue and arguing that no violation of the Song-Beverly Act was “willful.” (Motion, p. 8.) First, Plaintiffs conveniently omit the fact that they raise the issue of a “willful violation” in their Complaint; therefore, Defendant has not placed anything “at issue.” (Compl.,¶¶ 35, 62.) Second, Plaintiff’s sole authority is a federal case which involves labor issues and relies on federal labor laws. This wholly inapposite authority is not persuasive and the Court declines Plaintiffs’ invitation to make new law in the lemon law context by precluding a defendant from invoking the attorney-client privilege or work product doctrine simply because Plaintiffs have alleged a willful violation of the Song-Beverly Act.

Defendant argues the motion should be denied because it already agreed to produce its Vehicle Repurchase/Replacement Request Overview, policies/procedures and training materials pertaining to the pre-litigation handling of California consumers’ repurchase/replacement requests, and in fact has already done so. However, Plaintiffs argue in their reply brief that Defendant’s production does not include articles, training materials, and resources located in different databases and cites to deposition testimony by Defendant’s PMQ in depositions for other cases, which raises the suspicion that not all policies/procedures or training materials have been produced. Therefore, Plaintiffs’ motion with respect to RFP Nos. 15 through 29 is GRANTED. Defendant must supplement its response with an agreement to produce all manuals, policies, procedures, training materials, and “flow charts” applicable to 2018 Volkswagen Tiguan vehicles sold or leased in California since Plaintiffs’ date of purchase, instead of limiting its statement of compliance to “VWGOA’s Vehicle Repurchase/Replacement Request Overview.”

Plaintiffs claim that Requests 30 and 31 simply seek documents related to Defendant’s knowledge of the same or similar defects in other vehicles of the same year, make, and model as the Subject Vehicle. Defendant objects on the grounds that they are overbroad, burdensome and harassing, as well as vague and ambiguous.

A review of the actual text for RFP Nos. 30 and 31 shows that Plaintiffs fail to identify any specific complaint or symptom that their Subject Vehicle allegedly suffered. Rather, Plaintiffs request documents relating to other complaints that are “SUBSTANTIALLY SIMILAR” to their own complaints in other 2018 Volkswagen Tiguan vehicles (RFP No. 30) or documents that refer, reflect, or relate to “Field Service Action” issued in response to Plaintiffs’ complaints (RFP No. 31). The phrase “SUBSTANTIALLY SIMILAR” is defined as “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.”

Plaintiffs’ counsel attaches a copy of the “relevant repair orders” and warranty summary as Exhibits 1 to the Declarations of Gregory Sogoyan and Donald Mahnke. (Sogoyan Decl., Ex. 1; Mahnke Decl., Ex.1.) These exhibits are each 17 pages and include numerous different codes and malfunctions, making the definition of “substantially similar” unreasonably broad and vague. The unreasonableness of this request is underscored when Plaintiffs seek to include complaints regarding “a dashboard indicator light”, which would encompass any number of problems that could cause a “check engine” light to turn on, as well as the “catch-all” provision describing any “other manifestation of a repair problem”. Furthermore, there is no time frame for which documents are requested. Plaintiffs need to specify which of the symptoms from the Subject Vehicle’s warranty summary or repair orders apply to the alleged defect or defects underlying this action and request information from other consumers’ complaints about those particular symptoms.

As for Defendant’s objection that complying with RFP Nos. 30 and 31 would be unduly burdensome, the Court notes that Chris Lewis, who is employed as Defendant’s Senior Manager of Products Analysis Group, states that approximately 120,799 Volkswagen Tiguan vehicles have been sold or leased, of which 15,041 were sold or leased in California. (Lewis Decl., ¶ 6) Lewis also declares that Defendant, as a warrantor for vehicles and a point of contact for customers, organizes information by vehicle identification number and the parts serviced or repaired and charged to warranty; it does not organize information by customer complaint and cannot conduct searches using key words. (Lewis Decl., ¶¶ 13-15.) Lewis additionally states that Defendant does not have the necessary personnel or resources to search for and gather responsive communications because it would be required to review Customer Contact logs for all 2018 Volkswagen Tiguan owners to determine whether they experienced the same complaints as Plaintiff. However, on reply, Plaintiffs attach a copy of the Subject Vehicle’s warranty summary which identifies the labor operation codes and parts items which were affected or addressed for each claim. Therefore, it appears that some kind of search could be performed if Plaintiffs provided a narrower list of parts or labor operations involved in any purported defect.

In summary, the motion to compel a further response to RFP Nos. 30 and 31, as stated, is DENIED, without precluding Plaintiffs from propounding RFPs which are more narrowly tailored and applicable to 2018 Volkswagen Tiguan vehicles sold or leased in California since 2017.

Plaintiffs’ motion is GRANTED in part as outlined above and DENIED as to RFP Nos. 2, 30, and 31.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.