2013-00144441-CU-BC
Anthony Roth vs. Ford Motor Company
Nature of Proceeding:
Filed By:
Motion to Compel Further Discovery Responses
Ungs, Lauren

Plaintiff Anthony Roth’s motion to compel Defendant Ford Motor Company’s (“Ford”)
further responses to request for production is granted.

Plaintiff’s request for judicial notice of Ford’s answer filed in another action and various
discovery orders in other cases compelling Ford to provide further discovery
responses is granted though ultimately the ruling below did not depend in any way on
the documents.

In this lemon law action involving a Ford F-350 truck with a 6.0-liter engine, Plaintiff
seeks to compel Ford to provide full and complete responses to certain of his request
for production (set one)-requests nos. 90-93, 100, 102, 106, 108, and 109. As to the
nine subject requests as to which Plaintiff seeks to compel Ford to provide further
responses, Plaintiff requested information, for example, related to Ford’s policies and
procedures for handling warranty claims and repurchase request. Ford interposed a
number of objections to the requests for production, including objections based on
relevance, burden and oppression, and trade secrets.

At the outset, it appears that subsequent to the filing of the instant motion, Ford served
supplemental responses to the nine subject requests. The Court does not consider
the sufficiency of the supplemental responses and service of said responses does not
moot the instant motion. Plaintiff is still entitled to an order on his motion regarding
Ford’s original responses. Code of Civil Procedure §1005.5 specifically provides that a
motion is deemed made at the time it is filed and served. Because Plaintiff made the
motion before Ford served any further responses, Plaintiff is entitled to a ruling and
order.

Ford’s relevance objection is overruled. The subject requests seek document related
to Ford’s budget and spending regarding customer satisfaction tools for vehicles
manufactured with the subject 6.0-liter engine (e.g. Requests 90-93) and documents
related to how Ford determines whether a vehicle is subject to a buyback or
replacement under the Song-Beverly Act (e.g. Requests 1400, 102, 106, 108 and
109). While Ford may be correct that the discovery relates to vehicles other than
Plaintiff’s, that does not prevent Plaintiff from obtaining discovery. Indeed, in the
discovery context, information is relevant “if it might reasonably assist a party in
evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted]
Admissibility is not the test and information, unless privileged, is discoverable if it might
reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48
Cal.App.4th 1599, 1611-1612 [court’s emphasis].) In fact, evidence regarding other
vehicles with similar defects as Plaintiff’s could potentially be admissible at trial in a
lemon law action. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154.) Here,
for example, the subject documents requested in request nos. 90-93 could lead to the discovery of admissible evidence regarding the “scale and profitability” of Ford’s
policies and practices, something properly considered in connection with a claim for
punitive damages. (Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1213.)
Further, as seen under case law, a civil penalty claim under the Song-Beverly Act is
“akin to punitive damages.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23
Cal.App.4th 174, 184.) Further, the documents requested in request nos. 100, 102,
106, 108 and 109 could lead to evidence regarding Ford’s intent and knowledge
regarding as to Ford’s refusal to repurchase Plaintiff’s vehicle despite any knowledge
of defect. Indeed, the discovery could lead to information regarding whether Ford was
aware of the defects in the 6.0L Engine when it refused to repurchase the subject
vehicle for purposes of Plaintiffs’ civil penalty claim under Civil Code § 1794(c) given
that Plaintiffs must show a willful failure by Ford in complying with its obligations under
the Song-Beverly Act.

Ford’s “burdensome and oppressive” objections are overruled. Ford utterly failed to
substantiate any objection based on undue burden. Indeed, undue burden objections
must be accompanied by a specific factual showing setting forth the amount of work
necessary to respond to the subject discovery. (West Pico Furniture Co. v. Superior
Court (1961) 56 Cal.2d 407, 417-418.) Ford’s opposition is devoid of any factual
showing whatsoever and any objection based on undue burden is therefore overruled.
In addition, while Ford interposed objections based on privilege, e.g., attorney-client,
work-product and trade secret, it failed to indicate whether any documents were
withheld on this basis. To the extent that Ford withheld any documents on the basis of
attorney-client, work product, and/or trade secret privileges, it must provide further
responses that provides sufficient factual information for other parties to evaluate the
merits of that claim, including if necessary, a privilege log. (CCP §2031.240.)

The Court notes that in opposition, Ford offered a declaration that it does not have
certain documents. (Fiel Decl.) However, to the extent Ford does not have
documents responsive to any of the subject requests, it must say so in a verified
further responses in compliance with CCP § 2031.230.

In sum, Plaintiff’s motion to compel is granted. Ford’s boilerplate objections are
overruled. No later than March 26. 2014, Ford shall serve verified, substantive
responses which remove the boilerplate objections, to Plaintiff’s request for production
of documents 90-93, 100, 102, 106, 108 and 109 as requested in the moving papers
and shall provide further verified responses as set forth above. To the extent that the
supplemental responses served after the motion was filed comply with the above, they
need not be re-served.

To the extent that Plaintiff seeks to compel Ford to produce documents, the motion is
premature as Ford’s current responses contained objections and not a clear statement
that responsive documents would be produced such that a motion to compel
compliance would be appropriate at this time. Such motion is only proper where a
party has agreed to produce documents but has failed to do so in compliance with its
statement. (CCP § 2031.320(a).)

Finally, Plaintiff’s request for sanctions is granted. Under the circumstances, Ford’s
opposition to the instant motion was without substantial justification. (CCP § 2031.310
(h).) The opposition presented no meritorious arguments regarding Ford’s refusal to
supplement its responses prior to the instant motion being filed. Ford shall pay to Plaintiff a monetary sanction in the amount of $960 ($225/hr x 4 hrs + $60 filing fee).

The monetary sanction is to be paid on or before April 12, 2014. If the sanction is not
paid by that date, Plaintiff may prepare for the court’s signature a formal order granting
the sanction, which may be enforced as a separate judgment. (Newland v. Superior
Court (1995) 40 Cal.App.4th 608, 615.)

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Plaintiff’s counsel to notify
Defendant’s counsel immediately of the tentative ruling system and to be available at
the hearing, in person, or by telephone, in the event Defendant’s counsel appears
without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.