Case Number: BC594443 Hearing Date: May 05, 2016 Dept: 73

5/5/16
Dept. 73
Rafael Ongkeko, Judge presiding

VALDEZ vs. FORD (BC594443)

Counsel for plaintiff/moving party: Strategic (Benjeman Beck; Christine Haw; formerly, per papers, Michael Devlin; Amig Khodanian); Neil Gieleghem (prior appearance, but not associated in?)
Counsel for defendant Ford/opposing party: Erskine (Mary Lynn Arens; Sean Morrissey)

Plaintiff’s motion to compel further responses to plaintiff’s requests for production of documents, set one; and for prospective monetary sanctions (filed 2/1/16, continued from 3/21/16)

TENTATIVE RULING. See below.

DISCUSSION (Please note: Unfortunately, the court’s tentative ruling website, which is the source of this version, is not able to show certain formatting contained in the original, such as the court’s use of footnotes, boldface, italics, or the underscoring of case citations. A hard copy will be available for review in court before the hearing.)

The court has read and considered the parties’ papers and their Joint Status Report filed on 4/25/16.
Brief factual summary:
Plaintiff, in her complaint and through counsel’s declaration of 2/1/16 alleges that, on or about August 2012, she purchased a certified pre-owned 2008 Ford F-350. During the warranty period, the vehicle allegedly had various engine and other defects. Plaintiff alleges that Ford has been unable to repair her vehicle within a reasonable number of attempts. Plaintiff further alleges that Ford knew that her vehicle suffered from the prevalent defects, but nevertheless refused to repurchase the vehicle—a willful violation of the Song-Beverly Consumer Warranty Act.

Procedural background:

On 9/11/15 Plaintiff filed her complaint for violation of statutory obligations, alleging four causes of action:
1. Violation of Civil Code § 1793.2(d) [failure to repurchase or replace after reasonable number of repair opportunities], with a civil penalty for willful violation;
2. Violation of Civil Code § 1793.2(b) [failure to begin repairs within reasonable time or to complete repairs within 30 days], with a civil penalty for willful violation;
3. Violation of Civil Code § 1793.2(a)(3) [failure to make available service literature and replacement parts to effect repairs];
4. Breach of express written warranty (Civil Code §§ 1791.2; 1794);
5. Breach of implied warranty of merchantability (Civil Code §§ 1791.1; 1794); and
6. Violation of the Magnuson-Moss Warranty Act (15 USC 2301).

On 11/13/15 plaintiff served a 76-category request for production of documents (RFP) on Ford. Ford served its responses on 12/18/15. Both counsel engaged in meet and confer efforts thereafter.
On 1/19/16, at the initial case management conference, the court set this matter for a 3-5 day jury trial on 1/4/17.
On 2/1/16 plaintiff filed the instant motion to compel further responses to the RFPs, with an initial hearing date of 3/21/16, consisting of roughly 430 pages.
On 3/8/16 Ford filed its opposition papers, consisting of roughly 130 pages.
On 3/14/16 plaintiff filed her reply papers, consisting of roughly 79 pages.

3/21/16 tentative ruling

On 3/21/16, court provided the following tentative ruling:

TENTATIVE RULING:

Motion to compel further responses: Refer any and all current and future discovery motions and disputes to a discovery referee. CCP 639(a)(5).
On or before ___________, the parties are ordered to meet and confer regarding a discovery referee appointed to preside over these discovery disputes. If there is no agreement, each side shall submit 2 names from which the court will choose. Defendant to advance all fees and costs, over which the court retains jurisdiction regarding apportionment, if any. If Defendant contends Plaintiff’s financial condition is sufficient to shoulder a portion of the costs, Defendant should file an appropriate motion to that effect.
A proposed order shall be submitted. (See, e.g., Judicial Council optional form ADR-110)

DISCUSSION

Because the court is of the view that adding its own rulings to the growing body of inconsistent rulings involving the same or even different types of documents would not assist anyone, the court, reluctantly, will appoint a discovery referee to require the parties and counsel (who appear to have litigated the same issue in many other cases) to show and argue why discovery should or should not be compelled in this case as to each category of documents. As each party offers several examples of cases which appear favorable to that party, including same or similar issues raised in a class action involving the same alleged defects, the referee has discretion and may want to consider, to the extent a proper foundation can be laid and consistent with any protective orders therein, what has occurred in other cases (as both parties’ requests for judicial notice state), any different or inconsistent positions taken by either counsel or conflicting declarations in a possible attempt to confuse or mislead the court, further production or responses agreed to or ordered, and, if necessary, whether Ford has waived its rights by not seeking any appropriate protective order in this case.

There are exceptional circumstances requiring this reference. CCP 639(d)(2) This appointment is a necessary case management step and is more conducive to resolution of this discovery dispute given the parties’ insistence that other cases and results are somehow relevant to this dispute and its outcome. The record is expected to be voluminous, as is the detail required in any comparison made between and among the cases.
Pursuant to CRC 3.922, the discovery referee is authorized to set the date, time, and place for all hearings, to direct the issuance of subpoenas, to preside over hearings, to take evidence, to conduct in camera examinations of documents, and to rule on objections, motions, or other requests made during the course of hearings.

No court facilities and court personnel will be used in connection with this order of reference.

Pursuant to CRC 3.924, the referee must certify in writing that he or she consents to serve under the appointment order and is aware of and will comply with the applicable provisions of Canon 6 of the Code of Judicial Ethics and with the applicable California Rules of Court. The referee’s certification shall be filed with this court. The referee must make any disclosures required by CRC 3.924.

SANCTIONS. The referee shall make a recommendation. At this point, the request is premature. Jurisdiction is reserved.

3/21/16 hearing
At the hearing held on 3/21/16, as reflected in the court reporter’s notes, both parties opposed the appointment of a discovery referee and instead agreed to continue the motion to allow plaintiff time to evaluate Ford’s just-served CCP 998 offer, further meet and confer with regard to the motion, and file a joint statement of remaining issues before the next hearing (5/5/16).

Parties’ joint status report (filed 4/25/16): The parties have executed a stipulation for a protective order- confidential designation using the court’s model form. (The court has not yet received the original stipulation) However, disputes remain regarding Requests 17, 19-24, 41-43, and 45.

5/5/16 [TENTATIVE] RULING

Appointment of a referee. The court defers the appointment of a referee at this time.

Requests for judicial notice: As is each side’s custom in these lemon law discovery motions, judicial notice is requested of a variety of documents from other trial court proceedings, ranging from transcripts of hearings, tentative rulings, minute orders, notices of rulings, and the like. Neither side chooses to object to this approach as each side is equally guilty of citing matters that have no binding or persuasive value. These requests are DENIED in their entirety, with an admonition to counsel for future reference in this court. These are not appellate rulings and have no binding or even persuasive effect on this court. Moreover, simply attaching these voluminous excerpts without more– such as proper authentication, foundation, a showing of similarity of RFPs and even as to basic vehicle similarity and claimed defects — border on the frivolous and both counsel are so warned. For example, plaintiff seeks judicial notice of 12 documents in trial court proceedings that occurred between 2010 and 2014 which have not been shown to be similar to our case and for which the rulings may or may not even have been final (see, e.g., Plaintiff’s Ex. 22, a case where Judge Rosenblatt apparently was reconsidering after the initial ruling, as shown by moving counsel’s own notice subsequently filed in that case- see Notice filed 11/25/14 from court’s on-line docket in BC533182, making Plaintiff’s Ex. 28 unreliable) Not to be outdone, Ford offers trial court documents from five other cases- three transcripts, a ruling, and a notice, all of which are offered without any context. The transcript of the Bankston case itself (Defendant’s Ex. D) resulted in no ruling from this court other than the appointment of a discovery referee.

Plaintiff’s evidentiary objection. 1: Sustained.

AGREED AREAS INVOLVING LEMON LAW POLICIES (per parties’ joint status report)

For purposes of this motion, these RFPs have been resolved and are moot:

7: Warranty Policy and Procedure Manual from 2012 to the present.
54: DOCUMENTS that YOU use, since 2008, to evaluate consumers’ requests for repurchases pursuant to the Song Beverly Consumer Warranty Act.
56: Handling of complaints by consumers regarding vehicles YOU manufactured or distributed.

DISPUTED RFPs (per parties’ joint status report):

45: Warranty extensions.

GRANT IN PART; DENY IN PART. GRANT production of Ford’s policies regarding warranty extensions between 2008 and the date of the complaint. DENY as to all others as this RFP is overbroad and not otherwise calculated to lead to the discovery of admissible evidence. Plaintiff makes no showing that discovering all documents regarding warranty extensions is calculated to lead to the discovery of admissible evidence. Plaintiff has not shown that a warranty extension is a recognized remedy under the Song Beverly statutory scheme. Even if issuing a warranty extension may somehow show an inference of Ford’s knowledge of defects and their non-repairability, there is no showing that Ford’s issuance or consideration of a warranty extension will ever be admissible. No good cause has been shown for this RFP.

AREAS INVOLVING F-350 DEFECTS

17: Internal analysis or investigation; root cause; permanent repair procedures; investigation re failure rates of parts; cost vs. savings analysis for implementing or not implementing proposed repair procedures, etc.

GRANT production of all such reports between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

19: Communications re customer concerns relating to ENGINE DEFECTS in FORD VEHICLES.

GRANT as to documents Ford agrees to produce; otherwise DENY. Vague and overbroad.

20: Decision to issue any notices, letters, campaigns, warranty extensions, technical service bulletins and recalls

Except as to warranty extensions, which are addressed in RFP 45, GRANT production of all such reports between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

21: Decision to modify the 6.4L Diesel Engine, and/or any of its component parts

GRANT production of all such reports between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

22: Customer complaints, claims, reported failures, and warranty claims related to ENGINE DEFECTS including but not limited to any databases in YOUR possession with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning YOUR response to each complaint, claim or reported failure.

GRANT production of all such documents between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

23: Failure rates as a result of ENGINE DEFECTS.

GRANT production of all such reports between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

24: Fixes for ENGINE DEFECTS

GRANT production of all such reports between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

41: Technical service bulletins

GRANT production of all such TSB documents between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

42: Recall issued, or in the process of being issued

GRANT production of all such recalls between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

43: Special Service Message issued, or in the process of being issued

GRANT production of all such SSM documents between 2008 and date of complaint issued at a managerial level, whether final or not, concerning defects of which plaintiff alleges specifically in this case.

Additional rulings:

• Only documents relating to plaintiff’s vehicle’s year, make, and model shall be produced.
• Ford may withhold attorney-client or work product privileged documents subject to production of a proper privilege log;
• If there is a dispute regarding specific defects applicable in this case, the parties are ordered to meet and confer re these specific areas;
• Parties to meet and confer regarding materials that should be disclosed subject to a protective order.
• Verified code-compliant response and production due within 30 days.

Unless waived, notice of ruling by plaintiff.