Russ Bonino v. Ford Motor Company		CASE NO. 113CV257374
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 15

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of plaintiff Russ Bonino (“Plaintiff”) to compel further responses to requests for production of documents and for an award of monetary sanctions was argued and submitted.  Defendant Ford Motor Company (“Defendant”) filed a formal opposition to the motion, in which it requests an award of monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

This is an action for fraud based on representations made prior to Plaintiff’s purchase of a 2004 Ford Excursion (the “subject vehicle”).  On 23 December 2003, Plaintiff purchased the subject vehicle from Defendant.  (See Second Amended Complaint (“SAC”), ¶¶ 6, 9, 19.)  Before purchasing the subject vehicle, Plaintiff observed television advertisements and read promotional materials making various representations as to the quality of the subject vehicle and its 6.0 liter diesel engine.  (See SAC, ¶¶ 14-15.)  After Plaintiff purchased the subject vehicle, it was constantly in the shop and could not be relied upon because it repeatedly broke down.  (See SAC, ¶ 20.)  The dealership made repairs on the subject vehicle on at least five different occasions, but failed to permanently remedy the persistent problems.  (See SAC, ¶¶ 21-22.)  The express warranty for the subject vehicle expired on 23 December 2008, and Plaintiff contends it was on that date that he first discovered that the repairs failed to conform the subject vehicle to the express warranty.  (See SAC, ¶¶ 24, 39.)

On 30 April 2013, Plaintiff contacted the Better Business Bureau (“BBB”) and asked that the subject vehicle be repurchased or replaced under the Lemon Law; however, on 21 August 2013, the BBB denied Plaintiff’s request, stating that it lacked jurisdiction over the claim.  (See SAC, ¶ 26.)  Defendant also denied Plaintiff’s request that it repurchase or replace the subject vehicle.  (See SAC, ¶ 26.)  From January 2010 to January 2012, several class action lawsuits were filed against Defendant, alleging that its vehicles contained various defects.  (See SAC, ¶¶ 46, 50, 64, 70, 86.)  The class action lawsuits were consolidated into the case of In re Navistar Diesel Engine Products Liability Litigation (United States District Court for the Northern District of Illinois, Eastern Division, Case No. 11C2496) (“the Navistar action”).  (See SAC, ¶ 91.)  On 23 April 2013, Plaintiff, who was a putative class member of the lawsuit, requested exclusion from the class action settlement in the Navistar action.  (See SAC, ¶¶ 52, 61, 72, 83, 94, 104.)

Plaintiff filed the instant case against Defendant on 10 December 2013, and subsequently filed a first amended complaint (“FAC”) on 14 January 2014.  On 22 April 2014, Plaintiff filed the operative second amended complaint (“SAC”), alleging causes of action for: (1) fraud in the inducement—intentional misrepresentation; (2) negligent misrepresentation; (3) fraud in the inducement—concealment; (4) fraud in the performance of a contract—intentional misrepresentation; (5) violation of the Consumers Legal Remedies Act; and (6) violation of the Song-Beverly Consumer Warranty Act.

1. Discovery Dispute

On 11 April 2014, Plaintiff served Defendant with requests for production of documents, set one (“RPD”), Nos. 1-123 via U.S. mail.  (See Ortiz Dec., Ex. C)  Defendant served Plaintiff with its verified responses to the RPD via U.S. mail on 16 May 2014.  (See Ortiz Dec., Ex. D.)

On 29 May 2014, Plaintiff’s counsel sent Defendant’s counsel a 17-page meet and confer letter, with respect to Defendant’s responses to the RPD and other discovery requests, including special interrogatories and form interrogatories.  (See Ortiz Dec., Ex. E.)  With respect to Defendant’s responses to the RPD, Plaintiff’s counsel asserted that nearly every one of Defendant’s responses to the RPD was deficient.  (See id.)  Plaintiff’s counsel requested that Defendant provided further responses to the RPD and produce additional documents by 5 June 2014.  (See id.)

Defendant’s counsel replied to Plaintiff’s counsel’s meet and confer letter on 14 July 2014.  (See Ortiz Dec., Ex. F.)  Defendant’s counsel asserted that the purported deficiencies identified by Plaintiff’s counsel were without merit, Defendant’s objections were valid, and Defendant’s substantive responses were adequate.  (See id.)  In particular, Defendant’s counsel noted that Plaintiff’s counsel’s meet and confer letter contained several significant errors.  Defendant’s counsel pointed out that Plaintiff’s counsel incorrectly stated in her meet and confer letter that: Defendant objected to several of the RPD on the ground of relevance when, in fact, Defendant did not object to the RPD identified by Plaintiff’s counsel on that ground; and Defendant refused to provided documents in response to several of the RPD based on its objections, when, in fact, Defendant did not object to those requests and agreed to comply with the same.  (See id.)  Defendant’s counsel indicated that Plaintiff’s counsel’s meet and confer letter was identical to letters sent in other cases brought against Defendant by Plaintiff’s counsel and, given the numerous discrepancies between Defendant’s actual responses to the RPD and the responses as discussed in Plaintiff’s counsel’s meet and confer letter, it appeared that the letter was not specifically tailored to the responses served in this matter.  Defendant’s counsel indicated that in the interest of resolving any dispute, Defendant would provide Plaintiff with a privilege log and supplemental responses to RPD Nos. 9, 11, 18, and 20 by 4 August 2014.  (See id.)

On the same day, Plaintiff’s counsel sent an email to Defendant’s counsel, requesting a 3-week extension of time for Plaintiff to file its motion to compel further responses to the RPD.  (See Birmingham Dec., Ex. D.)  Defendant’s counsel replied via email, advising that he responded to Plaintiff’s counsel’s 29 May 2014 meet and confer letter earlier that day and would be willing to discuss whether an extension of time was necessary after Plaintiff’s counsel reviewed his 14 July 2014 letter.  (See id.)

On 15 July 2014 and 16 July 2014, Plaintiff’s counsel sent emails to Defendant’s counsel, indicating that she received Defendant’s counsel’s 14 July 2014 letter.  (See Ortiz Dec., Ex. G.)  Plaintiff’s counsel requested a 3-week extension of time for Plaintiff to file its motion to compel further responses to the RPD so the parties could continue to meet and confer.  (See id.)

Defendant’s counsel replied via email on 16 July 2014, stating that Defendant would agree to extend Plaintiff’s deadline to file a motion to compel further responses for 2 weeks, until 30 July 2014, in exchange for Plaintiff’s counsel’s agreement that she would “use [her] best efforts to respond to our letters well in advance of the new MTC deadline so that we are not backed up against your MTC deadline and rushing to meet and confer.”  (Id.)  On the same day, Plaintiff’s counsel responded via email and stated that she was in agreement.  (See See Ortiz Dec., Ex. H.)

On 29 July 2014, Plaintiff’s counsel sent an email to Defendant’s counsel, stating that she was “currently in the process of responding to Defendant’s letters in the matters of Bonino, Molina, and Lopez” and proposing extending the deadline for Plaintiff’s motion to compel further responses for 3 weeks to 20 August 2014.  (Id.)

Plaintiff’s counsel sent Defendant’s counsel a follow-up email on 30 July 2014, once again requesting an extension of time to file Plaintiff’s motion to compel further responses to 20 August 2014.  (Id.)  On the same day, Defendant’s counsel replied via email and stated “[t]hat is fine with us, but I would ask that you please provide your response to our letters in Molina, Bonino and Lopez well in advance of the new MTC deadline so that we are not jammed on our end.”  (Id.)  Plaintiff’s counsel then replied via email, confirming that the new deadline was 20 August 2014.  (See id.)  Defendant’s counsel responded shortly thereafter, stating: “And that you will please send us your response to our letters in these cases ‘well in advance’ (i.e., not less than 10 days before) the new MTC deadline.  We certainly cannot agree to this extension if we are going to get your responses the day before your motion deadline, which is why I noted the second part of my agreement below.  Please confirm the above is also part of the agreement and then we will note the new deadline accordingly.”  (Birmingham Dec., Ex. F.)  Plaintiff’s counsel then sent Defendant’s counsel reply emails, agreeing to send letters responding to Defendant’s counsel’s 14 July 2014 letter well in advance of the 20 August 2014 deadline.  (See id.)

Defendant served Plaintiff with its further responses to RPD Nos. 9, 11, 18, and 20 on 4 August 2014.  (See Birmingham Dec., Ex. C.)

On 19 August 2014, Plaintiff’s counsel’s office emailed Defendant’s counsel, advising that Plaintiff would be filing its motion to compel further responses to discovery on the following day.

On 20 August 2014, Plaintiff filed the instant motion to compel further responses to RPD Nos. 19, 37-39, 52, 54, 57, 81-82, 102, 105, and 109-111.  Defendant filed papers in opposition to the motion on 17 October 2014.  Plaintiff filed a reply on 24 October 2014.

III.           Discussion

Plaintiff moves to compel Defendant to provide further responses to RPD Nos. 19, 37-39, 52, 54, 57, 81-82, 102, 105, and 109-111.

1. Plaintiff’s Request for Judicial Notice         

Plaintiff requests that the Court take judicial notice of: the SAC filed in the instant case on 22 April 2014 (see Plaintiff’s Request for Judicial Notice (“RJN”), Ex. 1); Defendant’s first amended answer filed in the Navistar action (see Plaintiff’s RJN, Ex. 2); and numerous orders and transcripts of hearings, pertaining to motions to compel further discovery responses and for sanctions, that issued in other civil cases brought against Defendant.  (See Plaintiff’s RJN, Exs. 3-20.)

Defendant filed “Evidentiary Objections to Plaintiff’s Request for Judicial Notice,” objecting to Plaintiff’s request for judicial notice of its first amended answer filed in the Navistar action as well as the orders and transcripts of hearings that issued in other civil cases on the ground that they are irrelevant.

Plaintiff’s request for judicial notice is GRANTED as to the SAC filed in the instant case because it is a court record that is relevant to the pending matter.  (See Evid. Code, § 452, subd. (d).)  Plaintiff’s request for judicial notice of Defendant’s first amended answer filed in the Navistar action and the orders and transcripts of hearings that issued in other civil cases is DENIED because those documents are not relevant to the pending discovery matter.  (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

1. Legal Standard

If a party demanding a response to a request for production of documents deems that a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general, that party may move for an order compelling further response.  (See Code Civ. Proc., § 2031.310, subd. (a).)  On a motion to compel further responses to requests for production, it is the moving party’s burden to demonstrate good cause for the discovery sought.  (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)   This requires demonstrating both relevance to the subject matter and specific facts justifying discovery.  (See id.)  Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response.  (See id. at 98.)

1. Timeliness of the Motion

Defendant argues that Plaintiff’s motion should be denied in its entirety because it is untimely.  Defendant asserts that its agreement to grant Plaintiff extensions of time to file his motion to compel further responses was expressly conditioned upon Plaintiff’s agreement to serve it with a letter responding to the points raised in its counsel’s 14 July 2014 letter well in advance of Plaintiff’s deadline to file his motion to compel further responses.  Defendant further asserts that since Plaintiff never provided it with such a letter, Plaintiff failed to comply with the terms of the parties’ agreement to extend Plaintiff’s deadline to file a motion to compel further responses and, thus, the instant motion is untimely.

In his reply papers, Plaintiff does not address Defendant’s arguments regarding the timeliness of the instant motion.

Motions to compel further responses to requests for production of documents must be filed within 45 days after the responses to the discovery requests were served.  (See Code Civ. Proc., § 2031.310, subd. (c).)  The 45-day deadline applies unless a supplemental response is served or the parties agree in writing to an extended deadline.   (See id.)  For responses served by mail within California, 5 calendar days are added to the time to file the motion.  (Code Civ. Proc., § 1013, subd. (a).)

The court lacks jurisdiction to rule on motions to compel further responses that are filed after the deadline provided by law.  (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410; see also Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685.)  While the 45-day limitation is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them.  (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

Here, Defendant’s agreement to grant Plaintiff extensions of time to file his motion to compel further responses was expressly conditioned upon Plaintiff’s counsel’s agreement to provide a letter responding to Defendant’s counsel’s 14 July 2014 letter well in advance of Plaintiff’s deadline to file his motion to compel further responses.  (See Ortiz Dec., Exs. G, H; see also Birmingham, Ex. F.)  As articulated above, Plaintiff’s counsel never responded to Defendant’s counsel’s 14 July 2014 letter, despite her agreement to do so.  The Court finds this particularly troubling as Plaintiff’s counsel stated that she was currently in the process of responding to Defendant’s counsel’s 14 July 2014 letter when she requested the second extension of time to 20 August 2014, and Defendant’s counsel made it clear that Defendant would not agree to extend Plaintiff’s time to file a motion to compel further responses if Plaintiff’s counsel did not provide it with a letter responding to Defendant’s counsel’s 14 July 2014 letter.

Since Plaintiff’s counsel did not comply with the terms of the parties’ agreement, the instant motion filed on 20 August 2014, is untimely.  Accordingly, the Court lacks jurisdiction to rule on the motion and the motion is DENIED.

1. Requests for Monetary Sanctions

Both Plaintiff and Defendant request awards of monetary sanctions.

1. Plaintiff’s Request

Plaintiff requests an award of monetary sanctions against Defendant and its counsel in the amount of $2,960 pursuant to Code of Civil Procedure section 2031.300.

Code of Civil Procedure section 2031.300, subdivision (c) provides that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a request for production of documents unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Plaintiff was not successful on its motion and, therefore, is not entitled to an award of monetary sanctions.

2. Defendant’s Request

Defendant requests an award of monetary sanctions against Plaintiff and his counsel in the amount of $3,375 pursuant to Code of Civil Procedure section 2023.020.  Defendant argues that Plaintiff failed to adequately meet and confer in good faith prior to filing the instant motion because his counsel never provided the promised letter responding to Defendant’s counsel’s 14 July 2014 correspondence.

Plaintiff argues that it adequately engaged in meet and confer efforts because Defendant provided supplemental responses to only a few of the RPD and, thus, the deficiencies identified with respect to the majority of Defendant’s responses remain unresolved.

“Misuses of the discovery process include . . . .[f]ailing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”  Code of Civil Procedure, § 2023.010.[2]

“Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  Code of Civil Procedure, § 2023.020.  “Failing to make a ‘reasonable and good faith attempt’ to resolve the issues informally before a motion to compel is filed constitutes a ‘misuse of the discovery process.’  Monetary sanctions can be imposed against whichever party is guilty of such conduct . . . even if that party wins the motion to compel!”  (California Practice Guide, Civil Procedure before Trial, Weil & Brown, Section 8:1174.)

A party bringing a motion to compel further responses to requests for production of documents is required to submit a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of  each issue presented by the motion.”  (Code Civ. Proc., § 2016.040, 2031.310, subd. (b)(2).)  A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support.  (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.)  Additionally, the “reasonable and good faith attempt at informal resolution entails something more than bickering with opposing counsel; rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)  A determination as to whether attempts at informal resolution were adequate depends upon the particular circumstances presented. (See Obregon v. Super. Ct. (1998) 67 Cal. App. 4th 424, 431.)

The Court finds that Plaintiff did not meet and confer in good faith under the particular circumstances presented.  Plaintiff’s counsel’s initial meet and confer letter identified purported deficiencies with nearly every one of Defendant’s 123 individual responses to the RPD.  As Defendant’s counsel indicated in his 14 July 2014 letter, Plaintiff’s counsel’s meet and confer letter contained numerous discrepancies and frequently indicated that Defendant objected to an RPD when, in fact, Defendant did not assert any objection to the RPD and actually agreed to produce documents responsive to many of the requests.  This is particularly troubling as Defendant’s counsel declares that Plaintiff’s counsel meet and confer letter was identical to other letters that were “sent in a number of other cases brought by Plaintiff’s counsel.”  (Birmingham Dec., ¶ 6.)  As such, it appears that Plaintiff’s counsel’s initial meet and confer letter was not specifically tailored to the responses that Defendant served in this case.

Moreover, after Defendant’s counsel sent a detailed letter responding to the issues raised in Plaintiff’s counsel’s meet and confer letter, Plaintiff’s counsel agreed on multiple occasions to provide Defendant with a reply letter responding to Defendant’s arguments well in advance of Plaintiff’s deadline to file any motion to compel further responses.  Despite this agreement, Plaintiff’s counsel never responded to Defendant’s counsel’s 14 July 2014 letter and instead proceeded to file the instant motion.  Given the sheer number of requests at issue, the fact that Defendant was willing to work with Plaintiff to resolve the dispute informally (as evidenced by its agreement to provide some further responses and a privilege log by 4 August 2014), and Plaintiff’s counsel agreement to provide an additional letter responding to the points raised in Defendant’s counsel’s 14 July 2014 letter, Plaintiff’s failure to engage in further meet and confer efforts after his counsel received Defendant’s counsel’s 14 July 2014 letter demonstrates a lack of good faith.

Thus, Plaintiff failed to satisfy his meet and confer obligation and Defendant is entitled to an award of monetary sanctions under Code of Civil Procedure section 2023.020.

Defendant’s counsel declares that he spent 2.5 hours reviewing the instant motion and 8 hours drafting Defendant’s opposition.  Defendant’s counsel further declares that he anticipates spending 1 hour reviewing Plaintiff’s reply and 4 hours preparing for and traveling to the hearing on this matter.  Defendant’s counsel also declares that his hourly rate is $225.

The Court does not award sanctions for expenses not yet incurred.  (See Code Civ. Proc., §2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  Consequently, the 5 hours of anticipated attorney fees are not compensable.  The hourly rate and amount of time spent on the motion are otherwise reasonable.

Accordingly, Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $2,362.50.

Conclusion and Order

Plaintiff’s motion to compel further responses to RPD Nos. 19, 37-39, 52, 54, 57, 81-82, 102, 105, and 109-111 is DENIED.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $2,362.50.  Accordingly, within 20 days of the date of the filing of this Order, Plaintiff and his counsel shall pay Defendant’s counsel $2,362.50.

 

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.  An index to exhibits must be provided.  Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] Although section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, the offending party must have been required to have the meet and confer obligation in the first place.  But even where no meet and confer is required for any particular discovery motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)