Case Number: BC519061    Hearing Date: July 15, 2014    Dept: 34

Moving Party: Plaintiff Nieves Cordoba (“plaintiff”)

Resp. Party: Defendant Volkswagen Group of America, Inc. (“defendant”)

TENTATIVE RULING:

Plaintiff’s request to compel defendant’s further responses to request for production numbers 19, 21, 23, 29, 42, and 47 is GRANTED. Plaintiff’s request to compel defendant’s further responses to request for production numbers 8, 26, 38, and 52 is DENIED. The Court declines to order sanctions.

BACKGROUND:

Plaintiff commenced this action on 8/21/13. Plaintiff filed a first amended complaint on 5/1/14 against defendant for: (1) violation of Civ. Code § 1793.2(D); (2) violation of Civ. Code § 1793.2(B); (3) violation of Civ. Code § 1793.2(A)(3); (4) breach of express warranty; and (5) breach of implied warranty of merchantability. The action pertains to defects in a vehicle manufactured by defendant and purchased by plaintiff.

ANALYSIS:

Plaintiff seeks to compel defendant to provide further responses to request for production numbers 8, 19, 21, 23, 26, 29, 38, 42, 47, and 52.

Request No. 8

Request number 8 seeks all documents upon which defendant relies in its belief that the failure to promptly repurchase the vehicle was not willful. In the supplemental response, defendant asserted objections that the request was vague, ambiguous, and seeks privileged documents. Defendant also provided a substantive response that referred plaintiff to the documents produced in response to the requests.

Plaintiff asserts that the documents are relevant in order to determine if defendant willfully failed to promptly repurchase the vehicle, which could entitle plaintiff to civil penalty damages. Plaintiff then challenges the objections raised by defendant. Plaintiff fails to sufficiently address defendant’s substantive response that documents were produced. Plaintiff does not dispute that such documents were produced. (See Wilson Decl., ¶ 19, Exh. 16.) Further, at an in-chambers meeting with counsel on June 30, 2014, defendants agreed to produce the Technical Service Bulletins previously withheld. Defendant is not required to provide further responses to request number 8.

Request nos. 19, 21, 23, 29, 42 and 47

Request number 19 seeks documents, including electronic documents, concerning communications regarding the alleged defect. Number 21 seeks documents concerning decisions to issue notices, letters, campaigns, warranty extensions, technical service bulletins, and recalls concerning the defect. Number 23 seeks documents concerning decisions to modify the defective doors or their related parts. Number 29 seeks documents concerning internal analysis or investigation by defendant regarding the defect. Request number 42 seeks documents pertaining to any permanent fixes of the alleged defect, and number 47 seeks documents relating to the cause of the defect. Defendant objected that the requests were vague, ambiguous, overly broad, unduly burdensome, and irrelevant, and because the requests seek proprietary and privileged documents.

Plaintiff argues there is good cause for production of the documents because they are relevant to the issues of whether the door was defective, whether defendant knew of the defect, whether the defect could have been remedied, and whether defendant knew of a remedy. Defendant argues that this is a simple Song-Beverly Act claim, and plaintiff must only show that his vehicle had a defect that defendant was unable to repair. (See Civ. Code, § 1793.2(d)(2).) The Song-Beverly Act “creates an affirmative duty upon the manufacturer or its representative to provide restitution or replacement when a covered defect, i.e. a ‘nonconformity’ [citation], is not repaired after a reasonable number of attempts.” (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 302.) “If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages.” (Civ. Code, § 1794(c).) The requested documents could be relevant to the issues of whether defendant knew of a defect in plaintiff’s door because they could show that there were systematic defects of which defendant was aware but failed to remedy. The Court notes that these requests only seek documents pertaining to the specific defect at issue here. This is sufficient considering the broad scope of discovery.

Defendant fails to provide any facts or evidence to support its objections that the requests are unduly burdensome or would infringe on privacy rights or privileges. Defendant states in its MPA – but without any evidentiary support – that responding would require a database search and would “potentially [include] tens of thousands or records. This would, of course, result in the expenditure of the great amount of time and money. . . .” (Opp., p. 8:28 – 9:1; see also Separate Statement in Opposition, p. 5:4-5.) However, defendant has presented no evidence of this assertion. Although the Court – as it stated in previous Informal Discovery Conferences, is concerned about the possible burden of requiring defendant to search its databases in response to discovery demands, defendant has presented no evidence to show burden or oppression.

Therefore, defendant must provide further responses to request numbers 19, 21, 23, 29, 42, and 47, but only to the extent that such documents do not include private information about third parties (see below).

Request no. 26

Request number 26 seeks documents, including electronic documents, concerning customer complaints, claims, and reports related to the defect, including databases with information from dealers, service departments, parts departments, or warranty departments, and all documents concerning defendant’s response to such. Though information as to other complaints may be relevant to show that defendant was aware of defects in the vehicles, this request could infringe on privacy rights of third parties because it seeks complaints, claims, and reports from other consumers. Such claims could include the names, contact information, vehicle identification numbers, and other identifying information from third parties. This request is not narrowly tailored to avoid disclosure of the private information of other consumers, and plaintiff fails to establish that these complaints are directly relevant. (See Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934 [” The scope of methods used must be tailored to avoid disclosure of protected records.”]; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017 [“The burden is on the party seeking the constitutionally protected information to establish direct relevance.”].) Therefore, defendant is not required to provide further responses to request number 26.

Request nos. 38 and 52

Request number 38 seeks all documents concerning any measurement, report, analysis, or complaint regarding the safety of the vehicle, including but not limited to safety issues relating to the door defect. Request number 52 seeks documents relating to policies and procedures for evaluating vehicle buybacks. These requests are overly broad because they are not limited to the alleged defect in the door. Request number 38 seeks documents concerning safety of the vehicle, “including but not limited to safety issues concerning or relating in any way to the Door Defect used in the vehicle.” (Emphasis added.) Plaintiff fails to show that safety issues outside of the alleged defect are relevant to this action. Similarly, request number 52 is not limited to buybacks of the subject vehicle and is not limited as to time. Presumably, this request could include documents relating to any buyback of any vehicle. Plaintiff fails to show that such documents are relevant to this action. Therefore, defendant is not required to provide further responses to request numbers 38 and 52.

The Court declines to impose sanctions. Instead of seeking mandatory monetary sanctions under Code of Civil Procedure section 2031.310(h), plaintiff seeks prospective monetary sanctions under section 2023.030. Plaintiff seeks an order requiring defendant to pay plaintiff $500.00 for each day that it does not comply with the order to serve further responses. Plaintiff fails to show that such a prospective order is necessary at this time. In the event that defendant fails to comply with the Court’s order, plaintiff may then move for further sanctions.