Case Number: 18STCV03322 Hearing Date: February 14, 2020 Dept: 31

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY IS GRANTED, IN PART.

Background

On November 1, 2018, Plaintiff Kimberly Martinez Garcia filed the instant action against Defendant Ford Motor Company and Does 1 through 10. The Complaint asserts causes of action for:

Breach of Express Warranty Pursuant to the Song-Beverly Consumer Warranty Act;

Breach of Implied Warranty Pursuant to the Song-Beverly Consumer Warranty Act (Civ. Code § 1791.1; § 1794); and

Violation of Subdivision (b) of Civil Code section 1793.2.

Plaintiff initially filed the instant motion on May 28, 2019. On June 19, 2019, the Court advanced and vacated the hearing on the motion, ordering that the parties attend an Informal Discovery Conference (“IDC”) in advance of hearing the motions to compel further discovery. On July 24, 2019, the Court convened an IDC. On January 9, 2020, Plaintiff re-noticed her Motion to Compel Further Responses to Request for Production of Documents.

Legal Standard

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).)

Motions to compel further responses must always be accompanied by a meet-and confer-declaration (Code Civ. Proc., § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

Discussion

Plaintiff moves to compel further responses to her Request for Production of Documents, Set One, Nos. 16-19, 21-22, and 56.

Timeliness

Pursuant to Code of Civil Procedure section 2031.310(c), “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

In opposition to the instant motion, Defendant argues that Plaintiff’s motion is untimely. Defendant asserts that the Court did not order the tolling of any discovery motion deadlines and certainly did not order any discovery motion deadlines tolled by over five months. Defendant contends that accordingly, there is no excuse for Plaintiff’s decision to file the instant Motion approximately 10 months after Ford initially responded to the discovery at issue, and months after the parties completed the Court ordered IDC. Defendant argues that even if Plaintiff is given the benefit of the doubt and it is assumed that the motion to compel deadline was reset by the July 24, 2019 IDC, the deadline to file a motion to compel relating to Defendant’s responses to Plaintiff’s first set of discovery requests was September 8, 2019 at the absolute latest. Defendant asserts that Plaintiff’s motion makes no attempt to argue that the instant Motion is timely.

The Court finds that the instant motion is timely. The Court’s July 24, 2019 Minute Order, the Court stated:

The parties agreed to further meet and confer to see if this discovery issue can be resolved. If it cannot be resolved, Plaintiff will re-notice her motion to compel further responses.

The Court’s order thus effectively tolled the time for Plaintiff to re-file the instant motion. It is undisputed that Plaintiff’s initial motion was timely. As the instant motion addresses the same issues as the initial motion and the initial motion was taken off calendar by the Court, the Court finds that Plaintiff’s instant motion is timely and thus turns to the merits of the motion.

On the Merits

Plaintiff moves to compel further responses to her Request for Production of Documents, Set One, Nos. 16-19, 21-22, and 56 arguing that the requested documents are relevant to the issues related to Defendant’s good faith complaince with the Song-Beverly Consumer Warranty Act, including breach of the express warranty and implied warranty of merchantability. Plaintiff asserts that her requests are targeted to elicit admissible evidence of similar prior instances of prohibited conduct.

Plaintiff contends that the requested documents are necessary to support Plaintiff’s claims. Plaintiff argues that the requests seek documents relating to Defendant’s internal investigation and analysis of the defects plaguing Plaintiff’s vehicle and establishing that Defendant previously knew of such defects but nevertheless refused to purchase the vehicle. Plaintiff contends that as evidenced by its own TSBs, the documents will establish that Defendant is, and has been, aware of the defect; that the defect is ongoing; that Defendant lacks any means of fixing them; and that despite all of this information, Defendant has acted, and continues to act, in bad faith, willingly violating the Act by refusing to purchase Plaintiff’s vehicles. Plaintiff argues that it is in anticipated that Defendant may claim the defects with Plaintiff’s vehicle are either not substantial or have been repaired. Plaintiff asserts that the sought after internal documents would reveal Defendant’s awareness that this is not the case and provide additional evidence of their “willful” violation of the Act under Civil Code § 1794. Plaintiff contends that Plaintiff additionally requires the requested information so that her expert can better understand the nature of the Engine Defect.

In opposition, Defendant argues that the requests are not relevant to the matter at hand as the requests are overbroad and seek documents that are outside the permissible scope of discovery. Defendant asserts that the internal analysis and investigation documents and emails do not have anything to do with whether Plaintiff’s vehicle was repaired within a reasonable number of opportunities. Defendant contends that information and documents relating to other vehicles, other individuals, or anything regarding Defendant’s internal investigations or analyses are wholly irrelevant to Plaintiff’s claims and are thus not reasonably calculated to lead to the discovery of admissible evidence in this case.

Definitions & Time Frame

The term “SUBJECT VEHICLE” means the 2016 Ford Explorer; Vehicle Identification Number 1FM5K7DH7GGD02665, leased by Plaintiff.

The term “ENGINE DEFECT” shall be understood to mean such defects which result in symptoms including, but not limited to, premature failure of the engine; defects causing vehicle to not start; defects causing diagnostic trouble code P0299 to register; defects causing the vehicle to go into limp mode; defects causing lack of engine power; premature failure of the turbo; premature failure of the battery; defects causing battery to fail; defects causing the check engine light to illuminate; and any other concern identified in the repair history for the subject 2016 Ford Explorer; Vehicle Identification Number 1FM5K7DH7GGD02665.

The term “REPAIR DOCUMENTS” shall mean any and all documents which describe, outline, detail, or otherwise specify diagnostic and repair procedures to be used by Defendant’s technicians. Such term shall be understood to include, but not be limited to, relevant portions of the Workshop Manual, Technical Service Bulletins, Recall Notices, Special Service Messages, Campaign Bulletins, Diagnostic Flow Charts, Diagnostic Trouble Code or Fault Code Diagnosis Keys, power point presentations, internal investigation reports, field reports, causal factor analyses, failed component analyses, and/or any other document which refer to, relate, or concern the repairs performed by Defendant’s technicians.

The term “LEMON LAW DOCUMENTS” means any and all documents relating to Defendant’s handling of state Lemon Law obligations, including but not limited to documents describing Lemon Law Situations, Lemon Law Prevention, Repeat Repair Attempts, Consumer Protection Laws, Lemon Laws, Lemon Law Manuals, Lemon Law Complaints, and Magnusson Moss Act, State lemon Laws and/or Lemon Law advice. This term includes portions of any and all manuals containing discussions of state Lemon Law requirements, Defendant’s policies and procedures regarding ensuring compliance with state Lemon Law requirements, Defendant’s instructions to its employees, agents, and representatives regarding state Lemon Law requirements, Defendant’s policies and procedures regarding repeat repair visits, Defendant’s policies and procedures regarding defect reporting, Defendant’s policies and procedures regarding technical service bulletin drafting, Defendant’s policies and procedures regarding recall drafting, Defendant’s policies and procedures regarding Lemon Law prevention, Defendant’s policies and procedures regarding warranty claims, etc.

At the outset, the Court limits the requests to the following time frame: the date the subject vehicle was purchased to the date the lawsuit was filed.

Requests Nos. 16, 17, 18, 21, & 56

Request No. 16 seeks “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any internal analysis or investigation by YOU or on YOUR behalf regarding ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such ENGINE DEFECT, any such investigation to design a permanent repair procedure for such ENGINE DEFECT, any such investigation into the failure rates of parts associated with such ENGINE DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

Request No. 17 requests “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any communications YOU have had regarding ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

Request No. 18 seeks “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any decision to issue any notices, letters, campaigns, warranty extensions, technical service bulletins and recalls concerning the ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

Request No. 21 requests “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any fixes for ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

Request no. 56 seeks “All DOCUMENTS related to any electronic mail, including but not limited to current, backed-up and archived programs, accounts, unified messaging, server-based e-mail, Webbased e-mail, dial-up e-mail, user names and addresses, domain names and addresses, e-mail messages, attachments, manual and automated mailing lists and mailing list addresses, which in any way relate to ENGINE DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

The Court finds that Plaintiff is entitled to information regarding Defendant’s analysis and investigation of the engine defects (as defined in the requests) in Ford vehicles. Still, the request as presently stated is overbroad. The Court thus limits request no. 16 to documents concerning any internal analysis or investigation regarding the engine defects in Ford vehicles. Plaintiff is not entitled to any and all emails, as such a request is unduly burdensome and not likely to lead to the discovery of admissible evidence. If Plaintiffs are able to identify specific individuals from whom they seek emails, Plaintiff may be entitled to such communications. Until the request is narrowed, Plaintiff will not be entitled to discovery of email communications. As to requests nos. 17, 18, 21, and 56, the Court finds that the information requested is duplicative of the information that would be responsive to request no. 16. Accordingly, Defendant need not provide further responses to requests nos. 17, 18, 21, and 56.

Based on the foregoing, Plaintiff’s motion to compel further responses to request for production, set one, request no. 16 is GRANTED subject to the limitations described above. Plaintiff’s motion to compel further responses to requests nos. 17, 18, 21, and 56 is DENIED.

Requests No. 19

Request No. 19 seeks “All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to ENGINE DEFECT, 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.”

The Court finds that the information sought by request no. 19 is subject to the limitations of item 2h in the Court’s Case Management Conference Order. In response to request no. 19, Defendant will be required to provide a list or compilation of customer complaints in its electronically stored information database that are substantially similar to the alleged defects claimed by Plaintiff, in vehicles purchased in California for the same year, make, and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items. The list provided by Defendant may be in a chart or spreadsheet format, and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers’ reported complaint, but shall not include the other customers’ names, addresses, phone numbers, email addresses, or other personal identifying information.

Because the information sought by request no. 19 was contemplated by the Court’s Case Management Conference Order, the Court finds that Plaintiff has demonstrated good cause justifying the demand for these documents.

Based on the foregoing, Plaintiff’s motion to compel further responses to request for production, set one, no. 19 is GRANTED subject to the limitations noted above.

Requests No. 22

Request No. 22 requests “All DOCUMENTS which refer to, reflect, or relate to any technical service bulletin issued, or in the process of being issued, for vehicles of the same year, make, and model as the SUBJECT VEHICLE.”

The Court finds that the information sought by request no. 22 is limited by item 2i in the Court’s Case Management Conference Order. In response to request no. 22, Defendant will only be required to provide the Technical Service Bulletins and Recall Notices themselves for vehicles purchased or leased in California for the same year, make, and model of the subject vehicle. Plaintiff is not entitled to all documents which “refer to, reflect, or relate to” any TSBs that have been issued or are in the process of being issued without limitation. Such a request is overbroad and not appropriately narrowed given the allegations in the Complaint.

Based on the foregoing, Plaintiff’s motion to compel further responses to request for production, set one, no. 22 is GRANTED subject to the limitations above.

Conclusion

Plaintiff’s motion to compel further responses to request for production, set one, requests nos. 16, 19, and 22 is GRANTED subject to the limitations described above. Plaintiff’s motion to compel further responses to requests nos. 17, 18, 21, and 56 is DENIED. The parties are encouraged to meet and confer and agree upon a stipulated protective order.

Moving party to give notice.