Case Name: Felix v. FCA US LLC
Case No.: 2015-1-CV-286731

Plaintiffs Francisca Felix and Francisco Felix (collectively, “Plaintiffs”) move to compel further responses to discovery from defendant FCA US LLC (“Defendant”).

I. Background

This is an action for breach of warranty arising out of the purchase of a vehicle. According to the allegations of the Complaint (“Complaint”), on August 2, 2015, Plaintiffs entered into a contract to purchase from Defendant, and did purchase, a 2015 Dodge Ram 1500 truck for approximately $55,000. (Complaint, ¶ 7.) Prior to entering into the agreement, Defendant expressly and impliedly warranted and represented that the aforementioned vehicle was free from all defects and was in all respects merchantable and safe for use in the manner for which it was designed, manufactured, and sold. (Id., ¶ 9.)

Almost immediately upon purchase, Plaintiffs discovered substantial problems with the vehicle, which they allege is a “lemon.” (Complaint, ¶ 11.) On August 13, 2014, Plaintiffs took the vehicle to the dealership where they purchased it after noticing drivability issues whenever the vehicle entered 4×4 mode. (Id., ¶ 12.) The vehicle was out of service for 14 days, during which a technician at the dealership performed a variety of repairs. (Id.)

On September 4, 2015, Plaintiffs brought the vehicle to another one of Defendant’s authorized dealerships, reporting that on cold starts, the engine would make two “clicking” sounds and then start. (Complaint, ¶ 13.) The issue could not be replicated but the passenger side visor light was replaced for a second time. (Id.)

Within the first month of ownership and within the first 1,900 miles of use, Plaintiffs presented the vehicle for repair two times for its transmission and electrical defects. (Complaint, ¶ 14.) Plaintiffs repeatedly contacted Defendant’s 1-800 number and requested a buy-back or replacement; both of these requests that were rejected. (Id.) The vehicle’s nonconformities substantially impair its use and value and the transmission problems are potentially a safety issue. (Id.)

On October 9, 2015, Plaintiffs filed the Complaint asserting the following causes of action: (1) breach of express warranty; (2) breach of implied warranty of merchantability; and (3) failure to promptly make restitution.

II. Discovery Dispute

On December 8, 2015, Plaintiffs served Defendant with Form Interrogatories (“FI”), Set One, Special Interrogatories (“SI”), Set One, Request for Admission, Set One, and Request for Production of Documents (“RPD”), Set One. (Declaration of Arthur Obolsky in Support of Motion to Compel Further Responses to Discovery (“Obolsky Decl.”), ¶ 2 and Exhibits 1 through 4.) Defendant served unverified responses to the foregoing requests on January 25, 2016, which were comprised of both objections and substantive responses. (Id., ¶ 3 and Exhibits 5-8.)

Believing Defendant’s responses to many of the requests to be deficient (due to the assertion of unmeritorious objections or a lack of substantive response), Plaintiffs’ counsel sent a meet and confer letter to opposing counsel on March 18, 2016 requesting that it provide further responses and outlining the legal and factual reasons why such responses were warranted. (Obolsky Decl., ¶ 7 and Exhibit 9.) Defendant’s counsel responded to the letter on March 21, 2016, stating that the form of Plaintiffs’ letter was not proper and he needed more time to respond. (Id., ¶ 8 and Exhibit 10.) Plaintiffs’ counsel, in turn, responded to that letter reminding opposing party that, as indicated in the original meet and confer letter, he was willing to extend any amount of time needed as long as Defendant agreed to provide some response. (Id., ¶ 9 and Exhibit 11.)

On April 15, 2016, Defendant’s counsel provided another response to the March 18th meet and confer letter, declining to supplement any of the discovery. (Obolsky Decl., ¶ 10 and Exhibit 12.) Counsel argued that discovery of information pertaining to the claims of non-party vehicles was not relevant to Plaintiffs’ claims and also described the subject discovery requests as “vague,” “ambiguous,” “overbroad” and “burdensome.” (Id.)

Plaintiffs’ counsel responded to the foregoing letter on April 18, 2016, explaining why each of the discovery requests at issue were not vague, ambiguous, overly broad, or burdensome and why they were relevant to Plaintiffs’ claims under the Song-Beverly Act. (Obolsky Decl., ¶ 11 and Exhibit 13.) Counsel further advised that Plaintiffs were amendable to having Defendant redact the contact information for other customers experiencing similar issues on the same year, make, and model of vehicle at issue in this lawsuit. (Id.) Opposing counsel did not respond to the redaction offer. (Id.) Plaintiffs’ counsel further stated that he would agree to an additional extension for Defendant to provide amended responses if those responses were forthcoming. (Id. and Exhibit 13.)

Defendant’s counsel sent a final meet and confer letter on April 25, 2016, outlining the reasons why he did not believe further responses were warranted and accusing opposing counsel of bad faith. (Obolsky Decl., ¶¶ 12-14 and Exhibit 14.)

With the parties unable to resolve their issues, Plaintiffs filed the instant motion to compel on April 29, 2016. On May 19, 2016, Defendant filed its opposition. Plaintiffs file their reply on May 24, 2016.

III. Discussion

With the instant motion, Plaintiffs moved to compel further responses to SI, Set One, Nos. 1-11, RPD, Set One, Nos. 20-27 and 30-32, and FI, Set One, Nos. 12.5, 15.1 and 17.1.
If a party demanding a response to an interrogatory or request for production of documents deems (1) a statement of compliance with the demand or an answer to a particular interrogatory as incomplete, (2) a representation of inability to comply as inadequate, incomplete, or evasive, or (3) an objection in the response to be without merit or too general, that party may move for an order compelling further response. (Code Civ. Proc., §§ 2030.300, subd. (a), and 2031.310, subd. (a).) The burden is on the responding party to justify any objections and/or its failure to fully answer an interrogatory or request for production. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

A motion to compel further responses to a request for production must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Good cause is established by a fact-specific showing of relevance. (Kirkland, supra, 95 Cal.App.4th at 98.)

A. Substantive Responses

1. SI

SI Nos. 1, 7-11

Collectively, these SI seek information relating to how many times a customer has made a claim against Defendant regarding the same vehicle as Plaintiffs. More specifically, they ask how many times any customer has made a “claim” (as defined within the request) against Defendant on the ground that a vehicle of the same year, make and model as Plaintiffs’ vehicle: was “defective” (as defined within the request) (No. 1); exhibits drivability issues when entering 4×4 mode (No. 7); fails to shift when entering 4×4 mode (No. 8); makes two clicking sounds during cold starts (No. 9); Drive Train Control Module needed to be completely replaced (No. 10); and T-case needed to be completely replaced (No. 11).

Defendants responded identically to each of the foregoing requests, asserting only objections. Defendants objected to each request as vague, ambiguous, overbroad, unduly burdensome, seeking information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence, and to the definition of the terms “you” and “your” as overly broad, compound, and inclusive of entities not owned or operated by Defendant.

In its opposition, the only objections Defendant attempts to justify are those relating to overbreadth and lack of relevance. Consequently, the other objections are without merit. Additionally, Defendant asserts and defends an objection based on third-party privacy rights. Though this objection was not asserted in Defendant’s initial responses, case authority provides that a privacy objection can be raised later if the responding party timely objected on other grounds. (See Heda v. Superior Court (1990) 225 Cal.App.3d 525, 529.) Defendant’s responses were timely, thus, it has properly asserted a privacy objection.
In opposing Plaintiffs’ motion to compel further responses to these interrogatories, the primary argument asserted by Defendant is that the information they seek is simply not relevant to Plaintiffs’ claims. According to Defendant, it is irrelevant whether other 2015 Dodge Ram 1500 truck owners in different places lodged similar complaints to Plaintiffs, and there is no legal authority to support the proposition that Other Similar Incident (“OSI”) evidence is discoverable, relevant, or admissible in a warranty case. Defendant acknowledges that OSI is admissible and relevant in motor vehicle products liability actions involving defects in design because notice is an element of such a claim, but asserts that notice is not an element of a breach of warranty lemon law case and thus OSI evidence, which is also hearsay, is irrelevant. Defendant further asserts that OSI discovery violates the privacy interests of other owners, because for it to have any meaning necessarily involves the names, addresses, phone numbers, email addresses and other identifying information.

Plaintiffs counter that OSI is relevant to their claims to establish the willfulness on the part of Defendants which is necessary to establish their ability to recover civil penalties under Civil Code section 1794, which is requested in their third cause of action. The Song-Beverly Act provides in subdivision (c) of Civil Code section 1794 (“Section 1794”) that, in addition to other damages, consumers who purchased defective vehicles are entitled to civil penalties if they establish that the manufacturer’s failure to comply with the Song-Beverly Act was “willful.” Here, Plaintiffs have alleged that Defendant acted willfully in rejecting their pre-litigation repurchase requests. (Complaint, ¶ 29.)

The Court finds Plaintiffs’ arguments more persuasive. Notably, the scope of discovery under the Discovery Act is broad and any a party may discover “any matter, not privileged, that is relevant … [and] appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Admissibility itself, however, is not the test, and evidence is “relevant” if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448; Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539.) The penalty under Section 1794, subdivision (c), is imposed as punishment or deterrence of the defendant, and in that vein, is “akin to punitive damages.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184.) A defendant’s violation of its statutory duty to replace a defective vehicle or refund the purchase price (Civ. Code § 1793.2) does not qualify as “willful” within the meaning of Section 1794 if its failure to replace or refund was “the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present.” (Id.) Evidence that Defendant received similar complaints to Plaintiffs’ prior to when they made their demand for replacement of their vehicle or a refund of the monies paid for its purchase may help establish that Defendant’s refusal to do either of the foregoing was not the result of a good faith and reasonable belief that their obligation to perform these remedies was not triggered. For example, if Defendant had to frequently make similar unsuccessful repairs on the same type of vehicle for other consumers, this suggests that it was aware that there were certain defects with that make and model and thus that it did not and could not conform to the existing warranties. Where a vehicle does not conform to the warranty, the manufacturer’s obligation to replace it or refund the consumer under Civil Code section 1793.2, subdivision (d)(2), is triggered. Thus, OSI is relevant to Defendant’s knowledge of the defects complained of by Plaintiffs and, in turn, the alleged willfulness of its rejection of Plaintiffs’ pre-litigation repurchase requests.

Given the fact that these SI are limited in scope to the exact same year, make and model at issue in this action, as well as the issues experienced by Plaintiffs, Defendant’s contention that these requests are impermissibly overbroad is unavailing.

Finally, the Court does not see how the privacy rights of third parties are implicated by these requests, as they do not seek the names of particular consumers or any personal identifying information, but merely ask how many times customers have made certain types of claims against it. Thus, this objection is also without merit.

In accordance with the foregoing, the Court finds that further responses to these requests are warranted.

SI Nos. 2-6

Collectively, these interrogatories seek information relating to whether any other customer informed Defendant or its authorized repair facilities more than once that their 2015 Dodge Ram truck exhibited certain issues. More specifically, they ask Defendant whether any other customer informed it more than once that the 2015 Dodge Ram truck: exhibits drivability issues when entering 4×4 mode (No. 2); fails to shift when entering 4×4 mode (No. 3); engine makes two clicking sounds during cold starts (No. 4); Drive Train Control Module needed to be completely replaced (No. 5); and T-Case needed to be completely replaced (No. 6).

Defendant responded to these requests in the exact same way as SI Nos. 1 and 7-11, i.e., solely with objections, and attempts to justify these objections in its opposition in the same manner. Accordingly, for the reasons articulated above, the Court finds that Defendant’s objections to these requests are without merit and thus that further responses are warranted.

2. RPD

These request seek the following:

 All documents that relate or refer to the way Defendant determines whether to cover repairs under the warranties provided for Plaintiffs’ vehicle (No. 20);
 All documents that refer or relate to Defendant’s policies or procedures for determining whether to provide buyers a repurchase or replacement in California under the Song-Beverly Act (No. 21);
 All documents that relate or refer to Defendant’s policies or procedures for handling consumers’ complaints about vehicles that it manufactures, sells or distributes (No. 22);
 All instructional manuals Defendant provides to its employees and authorized agents for the purpose of instructing them on its policies and procedures to follow when a customer requests a vehicle repurchase or replacement (No. 23);
 All of Defendant’s warranty claims policy and procedural manual(s) and any and all documents related thereto (No. 24);
 All documents that relate or refer to Defendant’s policies or procedures that its employees and authorized agents are instructed to follow after its decision to authorize its customers’ vehicle or replacement request (No. 25);
 All documents that relate or refer to Defendant’s policies or procedures that its employees and authorized agents are instructed to follow after its decision to deny its customers’ vehicle repurchase or replacement request (No. 26);
 All documents that relate or refer to Defendant’s policies or procedures that its employees and authorized agents are instructed to follow when evaluating its customers’ request for vehicle repurchase or replacement (No. 27);
 All documents that relate or refer to sales brochures, literature or any promotional materials created, provided or distributed by Defendant for vehicles of the same year, make and model as Plaintiffs’ vehicle (No. 30);
 All documents that relate to refer to complaints by either owners of the same year, make and model vehicle as Plaintiffs’ regarding the same or similar nonconformities, problems or defects for which Plaintiffs presented their car to Defendant or Marty Franich for repair (No. 31); and
 All documents that relate or refer to any and all training materials regarding Defendant’s policies on how to calculate a vehicle repurchase (No. 32).

Defendant responded nearly identically to each of these requests with only objections. Specifically, Defendant objected that the requests are overbroad, unduly burdensome, and seek information that is neither relevant nor reasonably calculated to the lead to the discovery of admissible evidence. In its opposition, Defendant endeavors to justify all of its objections, first asserting that there is no good cause for the materials sought by these requests because nothing in this case implicates Defendant’s policies or procedures as it relates to customer complaints, requests for repurchases, calculations of buyback amounts, etc.

With regard to good cause, Plaintiffs essentially make the same argument in connection with each of the production demands- that the requested documents are necessary to establish “willfulness” on the part of Defendant in terms of its refusal to comply with its obligations under Civil Code section 1793.2.

Considering the broad scope of discovery and relevance therein, the Court finds that good cause exists for all of the aforementioned production requests except for RPD No. 30, which requests various promotional materials. The Court cannot discern the relevance of these items as it pertains to the issue of willfulness, and there are no allegations that concern representations made in such materials. Consequently, Plaintiffs are not entitled to a further response to this request. However, the Court is persuaded that the remaining requests do seek relevant information. Documents relating to Defendant’s policies and procedures and conformance therewith may demonstrate the element of willfulness as evidence that Defendant deviated from its own procedures may undermine any assertion that its refusal to replace Plaintiffs’ vehicle or refund them their money was the result of a good faith and reasonable belief that their obligation to perform those remedies was not triggered.

The Court also finds that Defendant’s remaining objections are without merit. Given the fact that these RPD are limited in scope to the exact same year, make and model at issue in this action, as well as the issues experienced by Plaintiffs, Defendant’s contention that these requests are impermissibly overbroad is unavailing. Further, Defendant fails to demonstrate that its burden in responding to these request is so unduly burdensome as to be oppressive, i.e., the amount of work required is so great, and the utility of information so minimal, that it would defeat the ends of justice to require the answers, (See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.) Where a party has made this objection, on a motion to compel answers the burden is on them to sustain the objection by detailed evidence showing precisely how much work is required to answer; conclusory statements are not sufficient. (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 419.) Such a showing has not been made by Defendant. Because Defendant’s objections are without merit, the Court finds that further responses to RPD, Set One, Nos. 20-27, 31 and 32 are warranted.

Lastly, to the extent that the personal identifying information of third party consumers is contained within any responsive documents, it may be redacted in the interest of those individuals’ privacy rights.

3. FI

FI No. 12.1

This request seeks the name and contact information of any witnesses, or anyone acting on Defendant’s behalf, with knowledge of the incidents alleged in the Complaint. In response to this request Defendant asserted objections based on the attorney-client privilege, attorney work product protection and privacy, as well as vagueness and ambiguity with regard to the term “incident,” which it contends is not applicable to this case. Defendant also provided the names of various employees but stated that it would not provide the addresses of those individuals due to privacy concerns.

In its opposition, Defendant does not attempt to justify any of its objections, and therefore they are without merit. Instead, it explains that the addresses of dealership personnel are not available from the records it has and it does not have “possession, custody, or control” of independent third party dealer records.

Each answer in response to an interrogatory must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) If a responding party does not have personal knowledge sufficient to respond fully to any interrogatory, it must state as much, but is still obligated to make a reasonable and good faith effort to obtain the information by inquiring of other sources, except for information that is equally available to the propounding party. (Code Civ. Proc., § 2030.220, subd. (c); Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1504.) Here, if Defendant truly does not have knowledge of the addresses of the employees that it identified in its response and cannot obtain such information, if must state as much. It has not done so, and therefore a further response to this interrogatory is warranted.

FI No. 15.1

This request seeks the identification of each allegation and affirmative defense in Defendant’s pleadings, all facts supporting each allegation or affirmative defense, the names and contact information of witnesses with knowledge of those facts, and the identity of any documents supporting those facts.

In its response, Defendant asserted the same objections as in its response to FI No. 12.1 and also objected that the interrogatory calls for premature disclosure of expert witnesses. Defendant also provided the names of several of its employees as well as employees from South County Jeep Dodge Ram and Chrysler Dodge Jeep, but refrained from providing their addresses as requested due to “privacy concerns.”

In its opposition, Defendant does not attempt to justify any of its objections; consequently, the Court finds that they are without merit. Plaintiffs insist that Defendant is obligated to provide the addresses of the individuals listed. The Court agrees with this assertion, to the extent that Defendant actually has such information or can obtain it by inquiring of other sources not equally available to Plaintiffs. If Defendant does not have this information, it must state as much in its reply. Consequently, a further response to this interrogatory is warranted.

FI No. 17.1

This request seeks all facts upon which Defendant bases each response to a request for admission that is not an unqualified admission.

In its response to this interrogatory, Defendant identified various sales and service employees but did not provide their addresses as requested due to “privacy concerns.” In its opposition to the instant motion, Defendant makes no effort to justify this objection; consequently, the Court finds that it lacks merit. As discussed in the preceding interrogatories, to the extent that Defendant has the addresses of the individuals identified in its responses, or can obtain that information by inquiring of other sources not equally available to Plaintiffs, it must provide it. However, if it cannot, it must articulate as much in its response. Consequently, a further response to this interrogatory is warranted.

B. Request for Sanctions

In support of its motion to compel, Plaintiffs request that the Court impose sanctions against Defendant in the amount of $7,033 pursuant to Code of Civil Procedure sections 2030.300, subdivision (d) and 2031.300, subdivision (d), which provide that the court shall impose money sanctions against any party person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories and production requests, unless it finds that the one subject to the sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Here, the bulk of Plaintiffs’ motion to compel is successful and the Court is not persuaded that Defendant’s opposition was substantially justified. Consequently, Plaintiffs are entitled to sanctions.

The sanction request is supported by a declaration from Plaintiffs’ counsel stating that he spent 12.1 hours preparing the moving papers at an hourly rate of $330 and also incurred filing fees and courier charges amounting to $400. (Obolsky Decl., ¶ 16.) Counsel further declares that he anticipates that preparing the reply and attending the hearing on this matter will take a total of 8 hours; however, anticipated time is not compensable and Plaintiffs’ reply is not supported by a declaration attesting to how many hours were actually spent on its preparation.

Considering the relatively simple and repetitive nature of the issues involved in this motion, the Court finds the amount of time claimed by Plaintiffs’ counsel for its preparation to be excessive. Consequently, the Court will impose sanctions based on 7 hours of work for a total of $2,310. Plaintiffs do not articulate the exact amount of filing fees or explain why courier fees were incurred or necessary and therefore the Court will not award the requested $400. Therefore, Plaintiffs’ request for sanctions is GRANTED IN PART.

IV. Conclusion and Order

Plaintiffs’ motion to compel is GRANTED IN PART. Plaintiffs’ motion is DENIED as to RPD, Set One, No. 30 and otherwise GRANTED. Within 20 calendar days of this order, Defendant shall provide code-complaint further responses, without objections, and all responsive documents.

Plaintiffs’ request for monetary sanctions is GRANTED IN PART. Within 20 calendar days of this order, Defendant’s counsel shall pay opposing counsel $2,310.